Southern Ohio Coal Co.

Plain-English summary

Southern Ohio Coal challenged a section 103(k) order issued after a roof fall at the Martinka No. 1 Mine. The order stopped work in the affected longwall area while MSHA investigated whether the fall was above the roof-bolt anchorage and impeded passage. Judge George A. Koutras found that the inspector reasonably relied on information from miners and supervisors about the fall, roof bolts in the stage loader, delayed reporting, and uncertain conditions. He affirmed the order and dismissed the contest.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(k); 30 C.F.R. § 50.2(h)(8)
• Outcome: The section 103(k) order was affirmed, and the contest was denied and dismissed.
• Key point: An inspector may issue a protective order based on the information reasonably available before the investigation is complete when the safety conditions are uncertain.

Full text (FMSHRC public release)

~1783
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SOUTHERN OHIO COAL CO., CONTEST PROCEEDING
CONTESTANT
Docket No. WEVA 91-337-R
v. Order No. 3116688; 3/18/91

SECRETARY OF LABOR, Martinka No. 1 Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

                           DECISION

Appearances: David M. Cohen, Esq., American Electric Power
Service Corporation, Lancaster, Ohio, for the
Contestant;
Glenn M. Loos, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Respondent.

Before: Judge Koutras

                      Statement of the Case

 This proceeding concerns a Notice of Contest filed by the

contestant pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, challenging the legality and propriety of a
section 103(k) order issued at the mine. A hearing was held in
Morgantown, West Virginia, and the parties appeared and
participated fully therein. They waived the filing of posthearing
briefs, but they presented oral argument at the close of the
hearing, and I have considered their arguments in the course of
my adjudication of this matter.

                              Issues

 The principal issue in this case is whether or not the

contested order was justified and properly issued, or whether the
inspectors acted unreasonably and arbitrarily in issuing the
order. Additional issues raised by the parties are identified and
disposed of in the course of this decision.

       Applicable Statutory and Regulatory Provisions

    1. The Federal Mine Safety and Health Act of 1977, 30
       U.S.C.   301, et seq.

~1784
2. Section 103(k) of the Act, 30 U.S. 813(k).

    3. Commission Rules, 29 C.F.R.      2700.1, et seq.

                         Stipulations

    The parties stipulated to the following (Tr. 7).

         1. The contestant is the owner of the Martinka No. 1
         Mine, and it is subject to the Act.

         2. MSHA Inspectors Tom May and David Workman are
         authorized representatives of the Secretary of Labor.

         3. The contested section 103(k) order was issued on
         March 18, 1991, and a copy was served on the
         contestant.

                           Discussion

 The contested section 103(k) Order No. 3116688, issued at

11:50 p.m., on March 18, 1991, states as follows:

         A roof fall has occurred in front of the Nos. 1-2-3-4
         and 5 shields located at the head gate of the B-12
         longwall section. The roof fell above the bolts and
         impedes passage from the stageloader area to the face.
         This order is issued for the safety of the miners. The
         following persons are allowed to enter the area; state
         mine inspectors, U.M.W.A. reps, and company reps.

 The "area or equipment" affected by the order is shown on

the face of the order as the "B-12 longwall section", and the
order reflects that it was terminated at 3:00 a.m., March 19,
1991, after the completion of an investigation.

                 MSHA's Testimony and Evidence

 MSHA Inspector David E. Workman testified that he conducted

a regular AAA inspection of the mine on Monday, March 18, 1991,
and that he arrived at 7:30 a.m., and left at 5:30 p.m. He
confirmed that he received no reports of any roof falls on that
day except that at approximately 4:00 p.m., while in the safety
department office with Inspector May, and a company and union
representative, company safety representative Dan Conoway
informed him that a roof fall had been reported to him but that
he did not know whether it was a "reportable fall". Mr. Conoway
told him that he was not aware that anyone was injured and that
he was going underground to investigate the matter. Mr. Workman
informed Mr. Conoway that if he determined that the fall occurred
above the anchorage zone and was impeding passage to call out and

~1785
let him know and that he would go in and investigate the matter
if it was a reportable fall. (Tr. 22).

 Mr. Workman stated that state inspector Albert Lacara was

also present when Mr. Conoway informed him of the fall, and Mr.
Lacara informed him that he would go in and look the area over.
Mr. Workman stayed at the mine until 5:30 p.m., and no one
provided him with further information about the fall. He left the
mine to return to his office and no one from management called
him there or at home to report any fall. However, at
approximately nine or ten p.m. that evening he received an
anonymous call at home informing him of "a massive roof fall" on
the B-12 longwall headgate area. He called his supervisor and
informed him of the call, and then proceeded to the mine. He also
contacted Mr. May and invited him to the mine to help him
investigate the fall (Tr. 23-25).

 Mr. Workman arrived at the mine at approximately 11:30 p.m.

on Monday, March 18, 1991, and spoke with shift foreman Jim
Keener. Mr. Keener confirmed that a fall had occurred on the
longwall headgate but that he had not seen it, and that it was
reportably 20 to 30 feet high. Mr. Keener also confirmed that the
longwall was not in operation and that debris was being removed
so that the face could be advanced to pull the shields in under
the fall area. Mr. Workman then proceeded to interview three
miners who had worked on the previous 12:00 a.m. to 8:00 a.m.
shift on Monday morning.

 Mr. Workman stated that stage loader operator Duke Willard

told him that the roof was working throughout most of his shift
in front of the No. 1 through 3 shields and that it fell toward
the stage loader sometime between 7:30 and 8:00 a.m. on Monday
morning, and that 2 roof bolts and fallen roof materials were
laying in the stage loader. General laborer Roger Hutchinson
informed him that the fall occurred in front of the shields on
the headgate side, and that he saw roof bolts still hanging. He
placed the fall at approximately 7:45 a.m. Mechanic Robbie
Robinson informed him that the fall occurred in front of the No.
1 through 5 shields outby the stage loader at approximately 8:00
a.m, and that roof bolts and roof material fell into the stage
loader conveyor chains. Foreman Ed Lane instructed him to call
out and report the fall, and he did. He also reported it to the
longwall superintendent (Tr. 26-28).

 Mr. Workman was of the view that the roof fall as described

to him by the three miners should have been reported to him or to
Mr. May during the day of their inspection on Monday, March 18,
and that someone on the shift should have known whether or not
the roof fell above the anchorage and impeded passage and
reported it as a reportable unplanned fall. Under the
circumstances, he notified Mr. Keener at 11:50 p.m. that he was
under a section 103(k) order and that he would be making an

~1786
investigation. Mr. Workman explained that he issued the order in
order to withdraw people from the area until an investigation was
completed to evaluate the conditions and determine the corrective
action needed (Tr. 29). In this instance, he also found an order
necessary to insure the safety of miners because the information
he received from the three miners that the roof bolts came down
would indicate that the fall was above the roof bolts and that
the adverse roof conditions could cause injury if anyone were hit
by the falling roof. The roof bolts laying in the stage loader
would indicate a fall above the roof bolt anchorage zone and a
potential hazard to miners. He confirmed that he was upset
because the roof fall had not been reported (Tr. 30-31).

 Mr. Workman confirmed that after issuing the order he did

not immediately go underground to the area where the fall had
occurred. He spent time reviewing records and speaking to others,
and management personnel were on their way to the mine. After Mr.
May, the company safety manager, and the mine superintendent
arrived, they all went underground and arrived at the section at
2:30 a.m., Tuesday morning, March 19. All work had ceased and
people had been withdrawn because of the order. He looked over
the area and observed that a fall had occurred rib-to-rib and
approximately 20 feet to the top of the roof cavity. He described
what he saw, confirmed a sketch of the scene, and indicated that
the fall should have been reported as a reportable roof fall (Tr.
36). He discussed with management the corrective action required,
including installing bars across the brow at the edge of the fall
to prevent it from falling out, and the fall was still present
(Tr. 38). The fall had existed for approximately 14 hours without
being corrected, and the order was terminated at 3:00 a.m., after
the area was supported and cleared out (Tr. 39).

 Mr. Workman confirmed that management was doing a good job

of recovering the fall, and it was directing the work force
properly. Everyone was aware of the conditions and proper
planning procedures were in place. He terminated the order after
concluding his investigation and determining that the health and
safety of the miners was no longer in danger (Tr. 41).

 On cross-examination, Mr. Workman confirmed that at the time

Mr. Conoway informed him about the fall he stated that he was
unsure as to whether it was reportable or not, but that he was
letting him know that a fall had occurred. Mr. Workman further
confirmed that inspector May and the state inspector were also
present at that time, but that he and Mr. May did not go to the
section to look into the matter because "I didn't know that it
was a reportable fall under Part 50, as to whether it would
require an investigation under 103(k) of the Act" (Tr. 42). The
state inspector informed him that he would go to the area, but he
did not call the inspector to determine what he may have found,
and he did not know whether any state violations were issued

~1787
(Tr. 41-45). Mr. Workman confirmed that when there is a fall
above the anchorage area it must be reported to MSHA as a
reportable roof fall and MSHA will then inform the operator that
it will investigate the matter (Tr. 46). He indicated that not
all reportable falls require the closing of a portion of the mine
to insure the safety of miners, nor do they require the immediate
attention of MSHA (Tr. 48).

 Mr. Workman stated that he based his order on the

information he received from foreman Keener that a roof fall had
occurred, and the interviews with the three miners on the 12:00
a.m. to 8:00 a.m. Monday morning shift. He acknowledged that Mr.
Keener told him "he didn't know that much about what was going on
up there", and that he would not know what happened between 8:00
a.m. and the time he issued the order at 11:50 p.m. Mr. Workman
confirmed that management was working during the day to remove
the fallen roof material and was following proper cleanup
procedures (Tr. 51). He also confirmed that the information from
the anonymous caller that there had been "a massive roof fall"
was exaggerated.

 Mr. Workman stated that it was necessary to issue the order

in order to determine whether the fallen roof area was properly
supported to prevent the fall from continuing to fall down the
entry, whether the edge of the fall was properly supported, the
type of supports which were present in the area, and the
maintenance of the equipment (Tr. 57). He also considered the
fact that the fall was still present after 14 hours after it
happened and that it was reported to be 20 to 30 feet high, and
"that gives me a lot of reason to go in and look at it for the
health and safety of the people" (Tr. 59).

 Mr. Workman confirmed that other than speaking to shift

foreman Keener, he did not inform the safety department that he
was going to conduct interviews with the three miners in
question. However, Mr. Keener and another foreman were present
during the interviews. Mr Workman also confirmed that he told the
company safety representative that it was basically his
investigation and that he was not to ask any questions while he
was interviewing the miners (Tr. 63-64). Mr. Workman conceded
that he could have gone underground immediately after issuing the
order at 11:50 p.m., and that a union and company safety
representative were present at that time. He explained that he
did not do so because "I didn't feel there was an imminent danger
situation", but that based on the information he received during
the three interviews "I felt that a policy order, such as a
103(k), is issued to make an investigation, which is what I done"
(Tr. 67). He further explained as follows at (Tr. 68):

      Q. But you didn't look at the conditions and then issue
         the order. You issued the order, then waited a few

~1788
hours and then looked at the conditions. Is that correct?

      A. Yes, it is.

      Q. It appears to me that the reason why a order was
         issued was largely due to you being upset about not
         being told about the roof fall. Is that a fair
         statement?

      A. That is a very fair statement. Yes, sir, it is.

      Q. So then if the roof fall would have been reported,
         you may not have issued the (k) order?

      A. I would have investigated and may not have issued a
         (k) order. That is exactly right.

 Mr. Workman stated that after he and Mr. May went to the

fall area, he found that the crosscuts had been supported
properly and that cribs were installed in the entry. However, the
brow at the edge of the fall needed to be supported, and after
discussing it with management, it was supported and he was then
able to terminate the order within a half an hour (Tr. 74). He
agreed that the best course of action to take when there is a
roof fall at the headgate longwall area is to mine through the
area as quickly as possible. He conceded that his order stopped
all mining, but since 14 hours had already been wasted, "I didn't
think a couple more hours was going to hurt that much" (Tr. 76).

 Mr. Workman confirmed that roof falls above the anchorage

zone have occurred in the past at the mine, and they have been
reported by management. He did not believe that the mine has a
history of trying to hide them from MSHA (Tr. 77). He further
justified his order with the following explanation at (Tr.
90-91):

      After I gained the knowledge and the aspects of the
      particular occurrence of that fall on the B-12
      longwall, I made the determination at that time as a
      Federal Coal Mine Inspector that I needed to issue a
      103(k) order because of the length of time that the
      condition existed; because of the lack of
      communication, of properly reporting; not knowing
      whether any injuries had occurred or were reported to
      me to have occurred; or a potential of other conditions
      existing that could have caused injuries to
      individuals.

 Mr. Workman confirmed that the fact that 14 hours had passed

did not indicate that management was not trying to do anything
about the roof conditions, and he explained what was being done
(Tr. 98).

~1789
MSHA Inspector Thomas W. May confirmed that he inspected the mine
on March 18, 1991, with Mr. Workman and that they were there from
7:30 a.m. until 5:30 p.m. He stated that at approximately 4:15
p.m., he received a report from Mr. Conoway who informed him and
Mr. Workman that there was a roof fall at the longwall headgate
but that he did not know whether it was reportable or not and
that he was going to investigate. Mr. Workman informed Mr.
Conoway to notify him if the roof fall was reportable, and if it
was, he and Mr. May would go back underground. Mr. May stated
that he and Mr. Workman left the mine at 5:30 p.m., and no one
called them further about the fall (Tr. 107-111).

 Mr. May stated that Mr. Workman called him late on the

evening of March 18, and informed him of the fall. Mr. Workman
advised him that someone had called him and reported that the
fall was above the anchorage level. Mr. May then went to the mine
and arrived there shortly after 1:00 a.m., Tuesday, March 19. Mr.
Workman had already issued the section 103(k) by the time he
arrived at the mine (Tr. 112). Workman told him he issued the
order "for the health and safety of the miners" and that he had
been informed that the headgate had fallen in above the anchorage
level and that there was a problem with the passageway to the
longwall face. Mr. May confirmed that he signed the order and
agreed with it (Tr. 113).

 Mr. May stated that upon investigation of the fall area, he

found that the roof had fallen above the roof bolt anchorage in
the headgate entry, and that cribs and posts were set in response
to the fall. He stated that the operator was trying to mine out
from under the fall, and discussions and recommendations took
place with management in order to find a way to get the shields
under the supports in order to mine out of the area (Tr.
113-114). Mr. May confirmed that he spoke with the headgate
operator (Duke Willard) who informed him that the fall occurred
at approximately 7:00 a.m. on his previous midnight shift and
that bolts had fallen out and were in the pan (Tr. 115).

 Mr. May believed that the order was justified to protect the

health and safety of miners because of the roof conditions and
impeded headgate passageway, and the fact that he and Mr. Workman
were not modified of the fall in a timely manner so they could
investigate it. He believed that miners faced a danger of
additional fall of roof while going to and from the face. He
believed that Mr. Workman had acted properly in issuing the order
to insure that the recovery procedures were adequate to insure
that no one was injured (Tr. 117). Mr. May stated that the
purpose of the investigation was to find out what was going on
underground in the section (Tr. 118). He confirmed that the order
was in effect from approximately midnight, March 18, to 3:00
a.m., March 19, and he did not believe that this was a long time
for an accident investigation (Tr. 119).

~1790
On cross-examination, Mr. May confirmed that he did not believe
it was necessary to go back into the mine after Mr. Conoway
initially reported the fall because a state inspector was there
and he indicated that he would look at the fall. However, Mr. May
did not follow up and speak with the inspector because he "felt
no need" to do so. Mr. May also considered the fact that two
other MSHA inspectors were in the mine and that "If they had a
reportable fall and there was a hazard, they would surely have
reported it to someone during the day" (Tr. 122). Mr. May further
confirmed that if the fall were reportable under Part 50 of
MSHA's regulations, he would have gone back into the mine.
However, absent other circumstances, if the fall is not
reportable, there would be no need to go back in (Tr. 122).

 Mr. May stated that he first learned that Mr. Workman had

issued the order when he arrived at the mine, and that they did
not previously discuss the order. Mr. May confirmed that the
order was initially verbally issued and it was issued in writing
"after everything was taken care of". Mr. May explained why the
order was issued, and he indicated that the fall area had not
been moved through and was not supported to facilitate passage.
The area must be properly supported before it is mined through
(Tr. 130-132).

 Mr. May confirmed that he was involved in the examination

and investigation of the fall area, including some discussions
with miners who were working on the shift when the fall occurred
(Tr. 137-138). MSHA's counsel pointed out that Mr. Workman issued
the section 103(k) order verbally at 11:50 p.m., as noted on the
face of the written order. Counsel confirmed that Mr. May did not
participate in the miner interviews conducted by Mr. Workman, and
that Mr. Workman made his own decision to issue the order based
on his interviews with the miners (Tr. 137-139).

 Mr. May conceded that he did nothing about the fall from the

time it was initially reported at 4:00 p.m, March 18, by Mr.
Conoway, and the time he went to the fall scene on the morning of
March 19, because "it had not been reported as a reportable roof
fall" (Tr. 139). However, he indicated that one of the purposes
of a section 103(k) order is to "preserve the site". He denied
that doing nothing was contrary to the safety interests of
miners. He explained that work continued for 16 hours before the
order was issued and the area still had not been mined through.
Under the circumstances, he believed "there is something wrong
with the procedure that they're using" (Tr. 141).

 Mr. May explained his reasons for not going to the fall area

when it was initially reported at 4:00 p.m., March 18, by Mr.
Conoway, and he relied on the fact that there was no report of
any safety problem and management had not reported that the roof
fall was in fact a reportable fall pursuant to MSHA's Part 50

~1791
regulations (Tr. 143). He confirmed that he does not always go to
an area first to check it out before issuing a section 103(k)
order. He did not do so in this case because "we wanted to
investigate the area before further work was done" (Tr. 144).

 Mr. May confirmed that within a half hour or more after he

and Mr. Workman reached the site of the fall, "a good bit of
work" was done so that the area could be immediately mined
through. He also confirmed that upon reaching the scene, the roof
had not as yet been adequately supported enough to mine through
(Tr. 146).

 Roger D. Vandergrift, general laborer, testified that he

worked the midnight shift which ended at 8:00 a.m., on March 18,
1991, but he did not hear any reports of any roof falls until he
returned to work on the midnight shift on March 19. He arrived at
work at 10:30 p.m. that evening and served as the miners'
walkaround representative accompanying Inspectors Workman and
May. He confirmed that Mr. Workman interviewed three miners who
were working at the time of the roof fall trying to find out what
had occurred. Referring to his notes which he made during the
interviews (exhibit R-5), Mr. Vandergrift indicated that one of
the miners told Mr. Workman that the top was "dripping and
working a little bit most of the shift," and that after the roof
fell roof bolts were observed in the pan line (Tr. 149-152).

 Mr. Vandergrift stated that a second miner told Mr. Workman

that he wasn't sure how high the fall was and did not go under it
to look, and that the third miner, mechanic Robbie Robinson,
called out and reported the fall to Joe Verges, the communication
man. Foreman Ed Lane had instructed Mr. Robinson to report the
fall (Tr. 153). Mr. Workman also spoke with management personnel
about the fall, but superintendent Wes Hoag was the only
individual to say anything about the fall. Mr. Workman then
informed shift foreman Jim Keener that he was issuing a section
103(k) order and that there was not to be any work done until he
arrived. Mr. Workman stated that he was issuing the order "for
the safety of the miners" (Tr. 154-155).

 Mr. Vandergrift believed that an investigation was justified

after Mr. Workman interviewed the miners because the fall
occurred above the anchorage point and "it had to be checked to
find out what happen" (Tr. 155). A fall above the anchorage is a
reportable fall pursuant to the roof control plan, and "You have
no support to hold the top" (Tr. 155).

 Mr. Vandergrift confirmed that he travelled to the fall site

with the inspectors after Mr. Workman issued his verbal order and
he described what he observed. He stated that the area had not
been mined through and that the only work which had been done was
to run the pan line and clean out the rock. Mr. Workman and
company personnel then discussed what was needed to correct the

~1792
fall and to help work their way out of the fall area, including
work to support the brow with crossbars and boards (Tr. 157).

 On cross-examination, Mr. Vandergrift confirmed that Mr.

Workman did not tell him that the roof fall was an urgent matter,
but that he did issue the order for the safety of the miners who
were going to be in the fall area. Mr. Vandergrift agreed that
based on the miner interviews conducted by Mr. Workman, the order
was justified (Tr. 160). He confirmed that Mr. Hoag had stated
that "not much work had been done since the midnight shift on
March 18" (Tr. 164). Mr. Vandergrift stated that the additional
brow supports were significant in allowing mining to continue and
to prevent the fall from continuing outby (Tr. 165).

           Respondent's Testimony and Evidence

  Daniel Conoway, safety and health manager, and former

afternoon shift foreman, stated that he first learned of the roof
fall at 4:15 p.m., on March 18, 1991, but that superintendent
Wesley Hoag informed him at 10:00 a.m. that morning that "we had
some bad conditions on the B-12 headgate". Mr. Hoag also informed
him that the fall was not reportable but that he would send some
people in to evaluate the situation and report back to him.
During the shift change, general superintendent John Metz
informed Mr. Conoway that "conditions had deteriorated on the
B-12 face and that I should report to MSHA that we have had a
fall" (Tr. 169). Prior to this time, Mr. Conoway knew that "we
had some bad top conditions", but he did no know the extent of
the fall. As soon as he received this information, Mr. Conoway
informed MSHA Inspectors Workman, May, and state inspector Albert
Lacara that he had received conflicting information about the
fall, and that he was first informed in the morning about "some
had top", but was then notified "that we do have a reportable
fall". Mr. Conoway stated that he had no knowledge of any of the
details of the fall, but informed the inspectors that "for the
sake of argument, I'm reporting to you that we have a fall" (Tr.
172).

 Mr. Conoway stated that after informing the inspectors of

the fall, Mr. Workman asked him to let him know when he found out
more of the details, and state inspector Lacara stated that he
would inspect the area and asked Mr. Workman if he wished to be
called. Mr. Workman stated that he did not. Mr. Conoway then
informed Mr. Workman that "we're going in and look at it", and
Mr. Conoway stated that his intent was to learn the details of
the fall and to make measurements so that he could submit the
information on an MSHA Form 70001. Mr. Conoway confirmed that
there was a question in his mind as to whether or not the fall
was reportable "because I had not seen it or no one in the safety
department had seen it", but that "for the sake of argument, I

~1793
wanted to report it" (Tr. 173). Mr. Conoway explained the work
that is generally done to take care of a roof fall (Tr. 174-175).

 Mr. Conoway stated that he returned to the mine at

approximately 12:30 a.m., March 19, and Mr. Workman informed him
that he had conducted an investigation of the fall with some of
the people who were there and determined that it had occurred at
7:30 or 8:00 a.m., the previous morning and that he had issued a
section 103(k) order (Tr. 176). Mr. Conoway stated that he was
concerned that the order was issued because "you're just setting
there basically letting the conditions worsen and not taking any
corrective measures" (Tr. 178). When he and the inspectors
reached the longwall face, Mr. Conoway and the group observed the
top from under supported roof, and Mr. Conoway believed that
sufficient cribs had been set at the headgate entry where the
fall had occurred. He also indicated that the fall was somewhere
in the neighborhood of twenty feet above the mine floor, which
made it "seven, maybe eight feet from the roof". He further
confirmed that the fall was "from rib to rib", and that some
shields and the pontoons were covered with "quite a bit of loose
rock and material". No one was voicing any safety concerns about
the cleanup work, and Mr Workman made some recommendations to
support the brow and reposition some cribs, and this was done.
Mr. Conoway believed that the place was adequately supported
without the additional work which was done, but he could not
state that the additional work did not enhance safety (Tr. 181).

 Mr. Conoway stated that the operator had never been cited

for not reporting a longwall roof fall, and that if the roof is
broken above the bolts, it is reported. He confirmed that Mr.
Workman's order was the first time the mine had received a
section 103(k) order for a roof fall, and that on prior occasions
inspectors have asked to review the operator's report of a fall,
and that depending on the location of the fall, they would not go
to the fall area (Tr. 182).

 On cross-examination, Mr. Conoway confirmed that he first

learned of "bad top" at 9:30 or 10:00 a.m, March 18, 1991, and
that he spoke with Mr. Metz at 4:00 p.m. He stated that he did
not know why it took six hours to determine the extent of the
fall, and he explained that "part of the problem was to make sure
the conditions were such that people could work, that we had a
plan of attack developed" (Tr. 184). He confirmed that telephones
are located in the underground section, and when asked how
difficult it would be for someone underground to determine the
extent of the fall, he stated "if they were there, it would not
be that difficult" (Tr. 185). He confirmed that he did not go
underground at 4:00 p.m., on March 18, but that he did go to the
fall area with the inspectors after 11:00 p.m. (Tr. 186).

 Mr. Conoway stated that he informed the inspectors at 4:00

p.m., March 18, that "I do not have any facts, but for the

~1794
sake of argument, I'm telling you it's a reportable roof fall"
(Tr. 187). He confirmed that he did not ask the inspectors to go
to the section, that he did not definitely tell them "there is a
reportable fall", and that he did not formally report it under
section 50.10 of MSHA's regulations (Tr. 187). However, by
reporting it and stating "for the sake of argument", he believed
that he was in technical compliance with the law (Tr. 188).

 Mr. Conoway stated that he did not exactly know what

measures were being taken during the period after the fall, and
that he could "just speculate". He explained that the cleaning up
of the fallen rocks and debris was a slow process, and he
confirmed that he never informed Inspectors Workman or May at
4:00 p.m., about any corrective work that was being done (Tr.
190). Mr Conoway stated that "sometimes the roof begins to drip
or work or rip down one side; conditions deteriorate rather
slowly. However, there are other times when it drops to the
roots" (Tr. 191).

 Ernest L. Weaver, longwall supervisor, confirmed that he was

the supervisor on the B-12 longwall section on March 18, 1991, on
the 8:00 a.m. to 4:00 p.m. day shift. He stated that when he
arrived on the section that morning the midnight shift foreman
advised him that "the top on the headgate was getting worse", and
that when they went to look, they observed that the top was
deteriorating and that "parts of the roof bolts were showing
where rock had fell out" (Tr. 200). Mr. Weaver then informed his
crew to set additional timbers and cribs if needed to insure
their safety to and from the face. Mr. Weaver identified certain
"call-out sheets" (exhibits C-1 though C-3), reflecting some of
the work done with respect to the roof fall. One of the reports
was his call-out which reflected that "we tried to advance the
headgate as many times as we could possible, but due to the rock
and the bad top conditions, we weren't able to advance like we
wanted to" (Tr. 204).

  Mr. Weaver confirmed that after the call-outs, production

stopped, and the section was idled. He explained the ensuing work
to address the fall conditions (Tr. 204-205). He confirmed that
during the attempts to advance and drop the roof support shields,
"the top deteriorated to the point where it fell in" and as
attempts were made to move the shields forward, more roof
materials were falling between the shields. When asked if he saw
any hazards associated with not doing anything, he responded "the
rule of thumb is you do not let a longwall set in bad top" (Tr.
206).

 On cross-examination, Mr. Weaver confirmed that during the

time measures were taken to clean out the fall area, the brow of
the fall was not supported with bars or boards. He also confirmed
that he did not inform any MSHA personnel of the measures being
taken to address the fall. He stated that he

~1795
called outside at noon during his shift on March 18, and told Pat
Zuchowski that "it was a reportable fall" (Tr. 207). Mr. Weaver
confirmed that he was not present with the inspectors when the
brow was supported, and that the shields in the fall area were
never up under supported roof during his shift (Tr. 208). Mr.
Weaver further explained as follows at (Tr. 209):

      Now, Ed Lane encountered a bad top during this shift,
      and by us going in there and trying to advance it, we
      more or less, in a sense, made it worse. But you had to
      make it worse in order to make it better, if you can
      understand what I mean.

      Simply by loading the shields up and down, that makes
      it worse, but you have to do that to try to advance
      them forward. And if you have a lot of loose material
      up above you, naturally, when you keep doing this, it's
      going to fall. And that is what happened. It finally
      did all fall in.

 Randolph K. Ice, accident prevention officer, stated that he

worked the midnight shift of March 18, 1991, which ended at 8:00
a.m. that morning, and that he had learned nothing about any roof
fall on that shift by the time he left the mine at 9:00 or 9:30
a.m. He next returned to the mine at 10:45 p.m. that same evening
in preparation for going to work on the midnight shift of March

19. Upon arrival at his office he learned that Inspector Workman
    had issued a section 103(k) order. He then proceeded to the
    longwall office and found Mr. Workman interviewing a miner who
    worked on the midnight shift, and Mr. Workman confirmed to him
    that he had issued the order and was conducting an investigation.
    Mr. Workman informed him that he could stay in the room during
    the interviews, but that it was his investigation, and that
    miners would have to stay outside as long as he needed them (Tr.
    214-215). Mr. Ice did not believe the order was justified, and it
    was his opinion that Mr. Workman issued it because "he was mad,
    very upset". Mr. Ice further stated that he assumed that someone
    had called Mr. Workman and filed a complaint.

                  Contestant's Arguments
    

    The contestant argues that it is undisputed that the roof
    fall in question was reported to the MSHA inspectors at the end
    of the day shift at approximately 4:00 p.m., on March 18, 1991.
    However, the inspectors chose not to view the location of the
    fall, and issued the section 103(k) order at 11:50 p.m., that
    same evening without the benefit of first viewing or inspecting
    the fall location. Contestant maintains that the order forced it
    to discontinue work to alleviate the dangers associated with the
    roof fall and that it was not necessary to insure the safety of
    the miners, and in fact did not promote the safety of the miners.

~1796
Under these circumstances, contestant concludes that the issuance
of the order was unreasonable and an abuse of the inpsectors'
discretion, and that it should be vacated.

 The contestant concedes that it would be appropriate to

close down a section of the mine by issuing a section 103(k)
order for an accident investigation when it is necessary to
insure the safety of the miners. However, the contestant takes
the position that the inspectors should have understood that it
was not necessary to close the section down to insure the safety
of miners, and that based upon what inspector Workman should have
reasonably known at the time he issued the order, the order
should not have been issued. The contestant points out that at
the time the state inspector indicated that he would go to the
fall location to determine the existing conditions, the MSHA
inspectors declined to go with him. The state inspector issued no
violations, and management was attempting to support the roof as
necessary and to mine through the area, which everyone concedes
is the proper procedure in the circumstances. This was a time
consuming process, and the contestant's efforts continued
throughout the day on March 18.

 The contestant asserts that upon his return to the mine on

the evening of March 18, Inspector Workman did not speak with the
state inspector, and spoke to one who was really knowledgeable
about the fall conditions, and there is no evidence that the
three miners who he interviewed considered the conditions in the
fall area particularly dangerous. Contestant further points out
that Inspector Workman testified that he saw no urgency with
regard to the roof and indicated that it had been that way for 14
hours and that "a few more hours wouldn't hurt". Yet, he still
issued the order without first going to the fall location to
observe the conditions, and that by doing so, the order resulted
in an increase, rather than a decrease, of any danger resulting
from the fall.

 The contestant further points out that even after he issued

the order, Mr. Workman waited several hours before going to the
fall location. Contestant suggests that the obvious inference
from this is that the inspectors knew there were no dangerous
conditions at the fall location, and that any irritation by the
inspectors because they were not notified earlier about the fall
does not justify the issuance of the order.

                    MSHA's Arguments

 MSHA asserts that the inspectors were first informed of bad

top or a possible reportable roof fall at the end of the day
shift on March 18, at approximately 4:15 p.m. The inspectors
informed management officials that they would be at the mine for
another hour, and invited them to inform them if further details
were known or if the fall was a reportable fall pursuant to

~1797
MSHA's reporting requirements. Since no further reports were
forthcoming, the inspectors left the mine, but returned later
that evening after Mr. Workman received an anonymous phone call
informing him of a reportable fall. After interviewing three
miners who had knowledge of the fall, Inspector Workman verbally
issued the section 103(k) order and subsequently put it in
writing, and it was co-signed by Inspector May who concurred in
its issuance. The inspectors subsequently went to the location of
the fall to conduct an investigation.

 MSHA agrees that the issue presented in this case is whether

or not the inspectors abused their discretion and acted
unreasonably in issuing the order. Rochester and Pittsburgh Coal
Company, 11 FMSHRC 2159 (November 1989). MSHA's position is that
in determining whether or not the inspector acted reasonably, the
only relevant fact is the knowledge available to him when he
decided to issue the order, and not what he subsequently learned
when he went underground to actually view and inspect the
location of the fall. In support of this argument, MSHA cites a
decision by former Commission Judge Virgil Vail in a compensation
proceeding resulting from the issuance of a section 103(k) order.
Homestake Mining Company, 4 FMSHRC 1829 (October 1982). In that
case, in upholding the order, Judge Vail stated in part as
follows at 11 FMSHRC 1839-1840:

      A reasonable assessment of the facts known by Homestake
      at 6:30 a.m. prompted management to withdraw the miners
      from the Ross shaft that morning. Further, as late as
      10:00 a.m. when the inspectors arrived, Homestake
      management had not made a positive determination as to
      the cause of the CO and smell of wood smoke in the
      shaft. Based on these facts, it is reasonable for the
      inspectors to believe there were grounds to issue the
      103(k) order for the health and safety of the miners.
      If subsequent investigation revealed that the condition
      causing the CO and smoke in the shaft had abated, this
      would not make the original decision wrong.

                        * * * * * * *

      It is clear to me that section 103(k) of the Act
      clearly authorized the inspectors to issue the order of
      withdrawal on June 21, 1979. The plain language of this
      provision of the Act and related regulations authorizes
      representatives of the Secretary to issue such orders
      as they deem necessary to protect the health and safety
      of the miners. As the conditions existed at the time of
      the inspectors arrival at the mine, a prudent reading
      of the potential perils warranted the action taken in
      issuing the order and conducting the subsequent
      inspection of the affected area. Until the inspectors
      could be assured there was

~1798
no further danger to the miners from a fire or CO, the issuance
of the 103(k) order was valid and proper.

 MSHA asserts that the situation presented on March 18,

indicated that a roof fall occurred in the morning, or as late as
the afternoon on that day, and that there was confusion among
mine management as to what was going on. Given the variety of the
reports communicated to the inspectors, including the lack of any
definitive information from management regarding the fall, and
the miscommunication as to whether or not management was going to
investigate the fall after 4:00 p.m. when it was reported to the
inspectors, MSHA concludes that it is difficult to say what the
inspectors should have done at that time. However, after
receiving the anonymous call and returning to the mine, the
inspector spoke to miners who were working on the section when
the fall occurred and a supervisor, and he learned that roof
bolts were down. The inspector also knew that the fall had
occurred 16 hours earlier, and except for the anonymous call, no
one told him anything about the fall. In these circumstances,
MSHA concludes that it was natural for the inspector to be
suspicious, and at that point in time, he issued the order and
went underground to the fall location. Simply because mine
management believes that the inspector should have done something
else and disagrees with his decision to issue the order does not
support any conclusion that the inspector abused his discretion.

                 Findings and Conclusions

 Section 103(k) of the Mine Act authorizes a mine inspector,

in the event of an accident which occurs in a coal or other mine,
to "issue such orders as he deems appropriate to insure the
safety of any persons" in the mine. MSHA's regulations at 30
C.F.R. Part 50 provides several definitions of an "accident". The
relevant definition for purposes of this case is the definition
found in section 50.2(h)(8), which defines an accident as "An
unplanned roof fall at or above the anchorage zone in active
workings where roof bolts are in use; or, an unplanned roof or
rib fall in active workings that impairs ventilation or impedes
passage".

 Section 103(k) orders are typically issued by MSHA

inspectors to secure the scenes of accidents, to insure the
continued safety of mine personnel, to preserve evidence, and to
facilitate the investigation of accidents. See: Miller Mining
Company Co., Inc., 4 FMSHRC 1509 (August 1982), aff'd at 3 MSHC
1017 (9th Cir. 1983); Itmann Coal Company, 1 FMSHRC 1573 (October
1979); Harman Mining Corporation, 3 FMSHRC 45 (January 1981);
Lancashire Coal Company, 12 FMSHRC 272 (February 1990; Homestake
Mining Company, Supra.

 Section 103(k) authorizes an inspector to issue such orders

as he deems appropriate to insure the safety of miners. Thus,

~1799
the issuance of such an order by an inspector is discretionary.
If an inspector believes that an operator has the situation well
in hand, and that the safety of miners is insured, he need not
issue any orders at all. On the other hand, if the inspector is
in doubt, or has insufficient information to enable him to make a
judgment as to the severity of the situation, or the hazard
exposure to miners, I believe he must be afforded the latitude to
act according to the wisdom of his discretion and experience,
particularly in accident situations involving an unplanned roof
fall. In my view, in order to successfully respond to such
situations, an inspector must be able to do what he believes is
appropriate according the to the facts as they are known to him,
or as they appear to exist, at the time he makes the decision to
act. Viewed in this context, I believe that the issue in this
case is whether the facts and circumstances known to Inspector
Workman at the time he decided to act warranted the issuance of
the section 103(k) order. If the order was routinely issued,
without regard to the safety or health or miners, then I believe
it should be vacated. If, on the other hand, it was issued in
order to insure the safety or health of the miners, it should be
affirmed.

 In this case, Inspector Workman testified that he issued the

order out of consideration for the health and safety of the
miners working in the location of the fall. He also testified
that he decided to issue the order after he learned more about
the fall through interviews with three miners who gave him
information about the roof fall and roof conditions. Mr. Workman
also took into consideration the length of time the roof
conditions had existed, the lack of communication and more
detailed information from mine management in properly and
promptly reporting the fall, and his lack of any specific
knowledge as to the existence of potentially hazardous conditions
which could have resulted injuries to miners (Tr. 90-91).

 Inspector May, who arrived at the mine after Mr. Workman had

issued the oral order, countersigned the order when it was
reduced to writing and he expressed agreement with the order and
Mr. Workman's reason for issuing it. Mr. May confirmed that Mr.
Workman told him that he issued the order out of concern for the
health and safety of the miners, and that he had been informed
that the roof had fallen above the roof bolt anchorage and that
there was a problem with the passageway to the longwall face. Mr.
May believed the order was properly issued in order to facilitate
the investigation, and to insure that proper recovery procedures
were being followed to preclude any injuries.

 The miner's walkaround representative, Rodger Vandergrift,

testified that one of the miners who Mr. Workman interviewed
shortly before he issued the order told Mr. Workman that the roof
had been "dripping and working" most of the shift, and that after
the roof fell, roof bolts were observed in the longwall pan line.

~1800
Mr. Vandergrift indicated that when there is a roof fall above
the roof bolt anchorage there is no support to hold the top, and
he believed that the order and investigation which followed Mr.
Workman's interviews with the miners was justified in order to
check out the situation. Mr. Vandergrift also indicated that Mr.
Workman informed shift foreman Keener that he was issuing the
order for the safety of the miners. Mr. Keener was not called to
testify, and Mr. Vandergrift's testimony, which I find credible,
stands unrebutted.

 Foreman Conoway, who admitted that he knew about the bad top

conditions early on Monday morning, March 18, but who disclaimed
any knowledge of any of the details, nonetheless indicated that
the roof conditions were continually deteriorating as the day
went on before the inspectors return to the mine. He also
indicated that a "working or dripping" roof may sometimes
deteriorate slowly, but at other times it may "drop to the
roots". Under the circumstances, it would appear that all of
these potential hazards were present prior to the issuance of the
verbal order by Inspector Workman, and the fact that the order
may have resulted in the cessation of further work to mine
through the area is irrelevant. Indeed, the existence of those
hazards lends support to the action taken by the inspector.

 I am not persuaded by the contestant's arguments that the

work stoppage which resulted from Mr. Workman's verbal order at
11:50 p.m. increased the level of potential hazards to miners.
The work to clear the fall was apparently taking place throughout
the day shift of March 18, after the fall was initially reported
out, and it apparently continued during part of the evening
before the inspectors returned to the mine. Longwall supervisor
Weaver testified that difficulties were encountered in advancing
through the fall area because of the bad top conditions, and that
during the attempts to advance and drop the shields, roof
materials were falling between the shields, and that the top
deteriorated further to the point where it fell in.

 I take note of the fact that Mr. Conoway, who initially

reported the fall to the inspectors at the end of the March 18,
day shift, could only speculate as to the measures being taken to
address the fall. He, like the inspectors, did not go to the fall
location after he reported it to them. I quite frankly have
difficulty comprehending why the inspectors, a shift foreman,
union walkaround representative, and company safety
representatives, all of whom apparently had some knowledge at the
end of the shift that a roof fall occurred, chose not to go to
the fall area to investigate. Although I understand the lack of
knowledge as to whether or not the fall was "reportable" under
MSHA's regulatory definition of a "reportable accident", as I
stated during the course of the hearing, a roof fall, technically
"reportable" or not, can injure and kill people. Under the
circumstances, I believe that the inspectors, and mine management

~1801
as well, had an obligation to timely follow up on the fall and to
communicate with each other to ascertain the extent of the fall
and the necessary corrective action. Since they failed to do so,
I am not persuaded by their respective "finger pointing" and
attempts to lay blame.

 The contestant's assertions that the inspectors should have

reasonably known that closing down the section by a section
103(k) order was not necessary to protect the health and safety
of miners, and in fact exacerbated the situation because it
delayed the mining through of the area are rejected. While it is
true that Inspector Workman did not immediately go to the fall
area upon his return to the mine on Monday evening before he
issued his verbal order, I find nothing in section 103(k), or in
MSHA's policy, that requires him to do so. While I agree that a
view of the scene before the issuance of the order may have
enabled the inspector to make a more precise and informed
judgement with respect to the prevailing conditions, the fact
that he relied on the information supplied by the three miners
does not warrant a conclusion that the order was improperly
issued. Further, I believe that mine management had more than
ample time and opportunity to communicate with the inspectors and
to inform them of the measures being taken to address the fall.
If they had promptly done so, the order may not have issued.
Since management failed to communicate further with the
inspectors after the 4:00 p.m. informal and rather equivocal
notice by shift foreman Conoway, it is in no position to
complain.

 After careful consideration of all of the testimony and

evidence in this case, I conclude and find that the facts and
circumstances concerning the roof fall, as known to the inspector
at the time he verbally issued the order, warranted the action
which he took and reasonably support his judgment that the order
was necessary to insure the health and safety of the miners until
he was able to go to the fall location and complete his
investigation of the roof fall incident. I further conclude and
find that the inspector acted properly and that the issuance of
the order was not an unreasonable or arbitrary abuse of his
authority and discretion. Accordingly, the contested order IS
AFFIRMED.

                          ORDER

 In view of the foregoing findings and conclusions, the

contested section 103(k) Order No. 3116688, issued on March 18,
1991, IS AFFIRMED, and the Notice of Contest filed by the
contestant IS DENIED and DISMISSED.

                           George A. Koutras
                           Administrative Law Judge