Virginia Crews Coal Company
Virginia Crews Coal Company (FMSHRC WEVA 92-246 and WEVA 92-247): Three violations modified and affirmed
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Virginia Crews Coal Company operated the No. 14 Mine and contested three alleged violations in two penalty proceedings. The ALJ found the violations established, but modified the first two from section 104(d)(1) matters to section 104(a) citations and modified the third to a section 104(a) non-significant-and-substantial citation. The judge affirmed the violations as modified and assessed penalties of $275, $150, and $225, for a total of $650. Payment within 30 days would result in dismissal of the proceedings.
Decision snapshot
- Cited standards: 30 C.F.R. § 75.220(a)(1); 30 C.F.R. § 75.208; 30 C.F.R. § 75.400
- Outcome: Three violations were modified and affirmed, with total penalties of $650.
- Key point: The ALJ found the operator had not shown aggravated conduct supporting unwarrantable-failure findings, so the matters were modified to section 104(a) citations.
Full text (FMSHRC public release)
CCASE:
MSHA V. VIRGINIA CREWS COAL
DDATE:
19921013
TTEXT:
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SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-246
Petitioner : A.C. No. 46-04702-03562
v. :
: Docket No. WEVA 92-247
VIRGINIA CREWS COAL COMPANY, : A.C. No. 46-04702-03563
Respondent :
: No. 14 Mine
DECISIONS
Appearances: Patrick L. DePace, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
David J. Hardy, Esq., Jackson & Kelly, Charleston
West Virginia, for the Respondent.
Before: Judge Koutras
Statement of the Proceedings
These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a). Docket No. WEVA 92-246, concerns
alleged violations of mandatory safety standards 30 C.F.R.
75.220(a)(1), and 75.208, and Docket No. WEVA 92-247,
concerns an alleged violation of mandatory safety standard
30 C.F.R. 75.400.
The respondent filed timely notices of contests and answers,
and hearings were held in Charleston, West Virginia. The parties
filed posthearing briefs, and I have considered their arguments
in the course of my adjudication of these cases.
Issues
The issues presented are (1) whether the cited conditions or
practices constitute violations of the cited standards;
(2) whether the alleged violations were significant and
substantial (S&S); (3) whether the alleged violations were the
result of the respondent's unwarrantable failure to comply with
the cited standards; and (4) the appropriate civil penalties to
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be assessed for the violations taking into account the civil
penalty assessment criteria found in section 110(i) of the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. 301, et seq.
2. Sections 104(d)(1), 110(a), and 110(i) of the Act.
3. Commission Rules, 29 C.F.R. 2700.1, et seq.
Stipulations
The parties stipulated to the following (Tr. 7-8):
1. The No. 14 Mine is owned and operated by the respondent.
2. The respondent and the mine are subject to the Act.
3. The presiding judge has jurisdiction to hear and decide
these matters.
4. MSHA Inspector Gerald L. Cook was acting in his official
capacity when he issued the contested citation and orders.
5. True copies of the citation and orders were properly
served on the respondent or its agent.
6. The imposition of appropriate civil penalty assessments
for the alleged violations in question will not adversely
affect the respondent's ability to continue in business.
7. The respondent is an average sized mine operator, and
has a low history of prior violations as shown in an MSHA
computer print-out (Exhibit P-1).
8. The cited conditions and practices were abated by the
respondent in good faith within the times fixed by the
inspector.
Discussion
Docket No. WEVA 92-246
This case concerns a section 104(d)(1) significant and
substantial (S&S) Citation No. 3740213, issued by MSHA Inspector
Gerald L. Cook at 7:15 a.m., April 16, 1991. The inspector cited
a violation of mandatory safety standard 30 C.F.R. 75.220(a)(1)
and the condition or practice cited is described as follows:
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The approved Roof Control Plan (permit No. 4-RC-5-76-
11069-10 dated 2-20-91) was not being complied with on
the 1st Left (003-0) section in No. 6 working place in
that the face had been advanced about 15(sic) inby last
row of bolts and not supported and evidence indicated
that crosscut right had been advanced about 20 feet and
not bolted traveling past openings that create
intersection that was not supported.
Following the issuance of the citation, Inspector Cook
issued section 104(d)(1) "S&S" Order No. 3740214, at 7:18 a.m.,
April 16, 1991, citing a violation of 30 C.F.R. 75.208, and he
included a reference to the previous citation in support of the
order. The cited condition or practice is described as follows:
The No. 6 working place had the face advanced about
15 feet inby last row of permanent roof support and
crosscut turned left advanced about 20 feet inby last
row permanent roof support and areas not posted with
readily visible warning. This condition observed prior
to mining started on section. This condition observed
on 1st left (003-0) section.
Docket No. WEVA 92-247
This case concerns a section 104(d)(1) Order No. 3739989,
issued by Inspector Cook on April 29, 1991, citing an alleged
violation of mandatory safety standard 30 C.F.R. 75.400.
Inspector Cook relied on the previously issued April 16, 1991,
section 104(d)(1) Citation No. 3740213, in support of the Order,
and the cited condition or practice is described as follows:
Loose coal and coal dust was allowed to accumulate from
3 to 24 inches deep and 16 to 18 feet wide and 6 to 10
feet in length in about 6 locations in the left return
off the left mains section (003-0). This accumulation
had been pushed up and placed in these areas.
Accumulations from 2 to 12 inches was present along
roadways and ribs also in this area and had not been
cleaned on cycle starting at about 70 feet inby the
return overcast and extending inby for about
1,000 feet. Some rock had been mixed in some of the
accumulations and this entry is ranging from damp to
wet conditions with some areas dry. (This company is
not following their clean up program).
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Petitioner's Testimony and Evidence
Section 104(d)(1) Citation No. 3740213 30 C.F.R. 75.220(a)
MSHA Inspector Gerald L. Cook, Sr., confirmed that he
visited the mine on April 16, 1991, to continue an inspection
which began the previous day, and he rode in with the day shift
section foreman and crew. He identified a copy of the section
104(d)(1) citation which he issued (Exhibit P-1). Mr. Cook
stated that he inspected the working faces, travelling from the
No. 1 through No. 6 working places, and when he arrived at the
No. 5 or No. 6 entry he met union representative Richard Patton
who was performing a preshift examination. Mr. Cook stated that
he observed that the No. 6 working face had been advanced
approximately 15 feet inby the roof bolts, and that the crosscut
right, turned back toward the No. 7 entry, had been advanced
about 20 feet, and that neither roof area was supported. He
concluded that these conditions constituted a violation of the
roof control plan because openings that create an intersection
must be supported before mining or miners can advance past the
openings. He identified a copy of the plan (Exhibit P-3), and
stated that paragraph 3 of page 4 of the plan was violated
(Tr. 19-25).
Mr. Cook confirmed that the cited areas were not permanently
supported, and he saw no evidence of any temporary support. The
No. 6 entry had been advanced inby the last row of bolts, and the
crosscut to the right, off No. 6, had also been advanced. This
indicated to him that someone had to pass by one of the two
openings to mine the other opening without any roof support, and
that this was a violation of the roof control plan. He confirmed
that the intersection itself was supported, but that the crosscut
right and the No. 6 heading were not. He stated that the
respondent could have mined the right crosscut, or the heading,
as long as a row of posts was installed across the mouth of the
intersection before mining either opening. Mr. Cook observed
that some coal that appeared to have been cleaned from the
roadway was shoved into the crosscut between the No. 6 and No. 7
entries in an area which had been mined and not supported and he
concluded that work had been performed in that area without any
roof support. He confirmed that this was an active area of the
mine (Tr. 26-27).
Mr. Cook stated that he based his "significant and
substantial" finding on the following (Tr. 28-29):
A. Because it's been proved -- they want to go back to the
history of fatalities. We do have several fatalities that
have resulted from a situation as this one where they are
mining in past an opening that is not supported.
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We've had miners killed and we've had miners badly injured
and it's due to the fact that we have a lot of unsupported
top, and swinging, that could fall. If it fell, it could
ride back past your -- even back past your permanent
supports, which it had done before.
Mr. Cook believed that the violation would reasonably likely
cause a fatality "because of the fact that we have had fatalities
on this" and "where you're exposing miners to unsupported top,
you're giving them a little bit extra where they can have a
chance of having a roof fall and getting a person killed". He
further stated that "if you go under unsupported top, you're
asking for a fatality" and that "the company exposed the miners
to unsupported top unnecessarily" (Tr. 29). Mr. Cook further
explained that anytime miners are exposed to unsupported top "it
is S&S in our criteria" (Tr. 30). He confirmed that the roof did
not fall and that he observed no one in the area of unsupported
roof while he was there. However, he saw evidence that someone
had taken a scoop through the area pushing coal up into the
breakthrough, and he saw no evidence that any temporary support
had been installed when this was done (Tr. 32). Mr. Cook
confirmed that this was his first visit to the underground mine
area and he did not observe any broken or loose top in the cited
unsupported areas (Tr. 32).
Mr. Cook stated that he based his "unwarrantable failure"
finding on the following (Tr. 32-33):
A. Because the operator has a roof control plan which is
their plan . It's supposed to be known by everybody who is
working on that section that has to deal with roof control.
And whenever they have an approved plan, that is their plan
they mine by. And when they violate that plan, there is no
way they can tell me they didn't know the plan had that
stipulation in it, because they're supposed to review the
whole plan and this plan is supposed to be known by
everybody.
And once they violate it, the negligence come out that -- if
you have a roof control plan that is approved, it's supposed
to be known by everybody on that section, what the parts
stipulate and what the parts mean. And there is no excuse
for them to create a situation, as they did, and there is no
way they can tell me they didn't know it existed, because
they're supposed to know what the plan states. It is their
plan and they're supposed to review it.
Mr. Cook stated that after issuing the citation and order he
spoke with section foreman Clyde Bailey who confirmed that he was
located in the No. 6 entry. Mr. Bailey assembled the crew and
Mr. Cook informed the crew that he had issued the citation and
order because they had mined the cited area without any roof
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support and no one spoke up to tell him that this was not the
case (Tr. 35-36). Since no one spoke up, Mr. Cook assumed that
what he had observed "was the way it was done" (Tr. 36). He
confirmed that the crew acknowledged that they knew about the
roof control plan and that they were not supposed to mine past an
opening they had created without supporting it first, and no one
suggested that a violation had not occurred (Tr. 37). Mr. Cook
confirmed that temporary supports were installed after he issued
the citation, and that when he next returned to abate the
violation, both entries had been permanently supported (Tr. 37).
On cross-examination, Mr. Cook confirmed that he saw no
evidence of the roof dripping or any indications that it was
about to fall, and he saw no evidence of any roof danger in the
cited areas (Tr. 38). Mr. Cook also confirmed that he did not
know which crew had cut the intersection in question, but he
believed that any crew that knows that the area is not supported
should attend to the matter (Tr. 38). He stated that
Mr. Bailey's morning crew had just arrived on the section, and
Mr. Cook did not know when the area had been mined or who mined
it (Tr. 40). He confirmed that the violation was an
unwarrantable failure because "the plan is supposed to be known
by the coal crews and the company. It's an approved plan and
they're supposed to know what it requires them to do, to mine
according to the roof control plan" (Tr. 40).
Mr. Cook stated that he was confident that he was in the
No. 6 to No. 7 break and at the No. 6 heading when he made his
observations and roof measurements. He initially assumed that he
was in the No. 1 entry, but it was not as advanced as the other
entries. Mr. Bailey and Mr. Patton both told him he was in the
No. 6 entry before he issued the violation, and he asked both of
them for his location because he wanted to make sure of the entry
location before issuing the violation (Tr. 42). Mr. Cook stated
that he made his measurements from the last row of roof bolts,
but he could not recall which side of the entry he measured from
or whether the entry or face was squared up or at an angle
(Tr.43-44). Mr. Cook stated that under the roof control plan he
is allowed to be in four feet from the last row of roof bolts,
and he explained the measurements he made with his tape and the
procedures he followed (Tr. 45-47).
Referring to a mine map (Exhibit R-3), Mr. Cook identified
the two unsupported roof locations which he observed, and he
explained how he made his measurements while standing under the
last row of roof bolts (Tr. 50-54). Mr. Cook confirmed that
there were two distinct areas which were not supported, namely,
the No. 6 heading, and the No. 6 to No. 7 break. He also
confirmed that if the mouth of the No. 6 heading were supported
with two rows of roof bolts into the crosscut, it would not have
been illegal to mine the No. 6 to No. 7 break, and vice versa
(Tr. 55). He stated that the coal accumulations in the break
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were roughly 20 to 24 inches deep, but he did not consider them
as a barrier preventing entry into the break because the
accumulations stopped before the last row of bolts. He did not
know how the accumulations got there (Tr. 56).
Mr. Cook clarified his previous "S&S" testimony by stating
that miners are exposed to the unsupported roof areas when they
pass by the two openings that are unsupported, and he concluded
that they had to pass by the unsupported roof area in the No. 6
heading when the loose coal was pushed into the break (Tr. 57).
He stated that the "evidence" that someone had been in the area
previously consisted of the "ridge of coal" across the mouth of
the intersection and rubber tired scoop or tractor tracks going
down the No. 6 entry (Tr. 59).
In response to further questions concerning his "S&S"
finding, Mr. Cook stated as follows at (Tr. 62-64):
Q. What you're saying, Mr. Cook, is whether you had
evidence of miners in this area or not, you were going to
write this as an S&S violation. Is that what you're saying?
A. Yes. It's an S&S violation due to the fact that --
Mr. Hardy: That is all. Thank you.
Judge Koutras: Well, you can finish your answer. Go Ahead.
Mr. Hardy: Yes. Please.
The Witness: It's an S&S violation regardless of whether
there is miners active in that area or not. The fact is
it's already done. You had exposed the miners to it. And
what we're saying is the more times you expose miners to
this type of areas leads them up to having more chances or
them getting roof on them.
Mr. Cook stated that in the normal course of business the
crew would have started producing coal, but he did not know the
mining sequence and did not know where mining would have started.
He confirmed that the two cited unsupported roof areas had
already been mined, and the next step would have been for miners
to go to those areas to support the roof before cleaning up the
coal accumulations. If the areas were to be abandoned they would
still have to be timbered to abate the violation (Tr. 66). He
confirmed that the intersection itself, as shown by an "X" mark
on the mine map (Exhibit R-3), was permanently supported. In the
instant case, the break to the right and the heading straight
ahead in the No. 6 entry were not supported. The heading needed
to be supported to keep miners from going into the break under
unsupported roof (Tr. 68).
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Section 104(d)(1) Order No. 3740214, 30 C.F.R. 75.208.
Inspector Cook confirmed that he issued the order after
observing that neither of the previously cited unsupported roof
areas contained any visible warnings devices. He stated that
section 75.208, requires barriers to prevent persons from going
under unsupported roof, or visible warning devices such as
reflectors or surveyor's ribbons to warn miners not to pass under
unsupported roof. In the case at hand, barriers or reflectors
should have been located at the last row of bolts at both the
No. 6 heading and at the No. 6 to No. 7 crosscut (Tr. 69-70).
Mr. Cook confirmed that these unsupported areas were a part of
the active working section, and he could find no visible warnings
or physical barriers to alert miners about the unsupported areas
(Tr. 71).
Mr. Cook explained the basis for his "S&S finding as follows
at (Tr. 71-72):
A. By them not having any kind of means provided to show
that this area wasn't supported, a person could go into that
area and be out from under supported top before he realized
he was out from under supported top. There was no means
showing it wasn't supported. That is why we place -- that is
why this law is in, so they can make miners aware that this
area is unsupported. So you don't need to go past this
area.
Q. Why did you determine that this was reasonably likely to
cause a fatality?
A. Because there is no means provided and anybody could
have been in that area. As it shows here, the way it looks,
the evening shift might have mined that area. So the day
shift could have thought that since there was no flag there
or no visible means, that the area was supported. They
might venture up into the face before they would realize
they was out from under supported top, exposing themselves
to the unsupported top.
Q. What was the likelihood of a roof fall?
A. There was no evidence right there. I'm not a specialist
on roof. There was no evidence to show that this area was
extremely bad and would be imminent to fall. If it was an
extremely bad top and imminent danger, I would have issued
an imminent danger, but the top condition in this area
wasn't enough to show that there was a fall going to occur.
Q. Under normal mining operations, what was the likelihood
of a fatality occurring?
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A. Again, we've had people killed by roof and this is --
again, you're taking a chance, exposing the miners to the
roof, unsupported. You're just boosting -- You're just
increasing your chances on getting someone killed. I can't
say that it might have led to a fatality or not, but you
have the case of having people exposed to it.
And this is what we're trying to prevent, people being
exposed to this unsupported top. And there was no means
provided to keep them out of that area, to let them know
that the area wasn't supported.
Mr. Cook stated that he based his "unwarrantable failure"
finding on the following (Tr. 73):
A. This is a statutory provision of the law which was up
until the new roof control plan, new roof control law came
into effect, this was part of the plan. And they took this
part of the plan out and made it law. Everybody is aware of
what needs to be done while they mine a place. It's a
statutory provision of the law and it's required to be known
on mining.
If you're mining a section, you're supposed to know what
parts of the roof control plan you have to abide by and what
parts of the law pertain to roof control.
Mr. Cook stated that the violation was abated after foreman
Bailey obtained reflectors or ribbons and placed them at the
crosscut and the heading to show that these roof areas were
unsupported (Tr. 74). Mr. Cook confirmed that the regulatory
requirement for reflectors is not included as part of the
respondent's roof control plan (Tr. 75).
On cross-examination, Mr. Cook confirmed that although he
was aware of the fact that the preshift examiner's book for
April 16, 1991, indicated that there was a reflector present in
the intersection in question between 4:30 and 5:30 a.m., he still
considered the violation to be an unwarrantable failure (Tr. 76).
Mr. Cook acknowledged that in his pretrial deposition he stated
that in his judgment one ribbon posted in the intersection would
suffice, but he now believed that two ribbons, or reflectors,
would be required
(Tr. 76).
In response to further questions Mr. Cook stated that one
reflector would probably have been sufficient if it were placed
in the middle of the intersection to let people know that the
cited areas were unsupported. He then stated that he would still
have considered this to be a violation because each of the
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unsupported entries would not have been posted with a warning.
However, he would not consider it to be an unwarrantable failure
because "they at least tried to post it off" (Tr. 81). In the
instant case, however, he found no warnings posted at any
locations. If the accumulations which were present were pushed
all the way out to the last row of roof bolts, this would have
constituted a sufficient physical barrier. However, the
accumulations were two or three feet short of the last row of
bolts and he would not consider this to be a sufficient barrier
(Tr. 81).
Mr. Cook confirmed that he checked the preshift book for
April 16, 1991, (Exhibit R-2) and after reviewing the entry for
that day, he assumed that someone had placed reflectors in the
areas shown, but he did not observe any at the time of his
inspection (Tr. 86). He stated that ribbons or tape may be used,
rather than reflectors, provided they are visible (Tr. 86). He
confirmed that he did not check the mine production records to
determine when anyone was last present in the area. However,
based on the mine map (Exhibit R-2), it would appear that mining
last took place in the area three days prior to his inspection
(Tr. 87). He had no knowledge that anyone was travelling through
the entry to reach any face area where mining was taking place,
but someone informed him that a water pump car was brought
through the area sometime prior to the day shift and that the car
travelled down the No. 6 entry and over to the No. 7 crosscut.
However, Mr. Cook did not know when this occurred, and he had no
evidence that anyone travelled through the cited unsupported
areas (Tr. 89). However, travelling through the supported
intersection would be a violation of the roof control plan
because the openings must be supported before any other work or
travel in the intersection (Tr. 90).
Section 104(d)(1) Order No. 3739989, 30 C.F.R. 75.400.
Inspector Cook confirmed that he issued the order in the
course of an inspection on April 29, 1991 (Tr. 91-92;
Exhibit P-5). He stated that he was accompanied by company
representative Ronald Kennedy, and that he issued the order after
observing accumulations of loose coal and coal dust in several
areas along the ribs and roadways in the return airways starting
at the overcast at the mouth of the first left section and
extending inby for about one thousand feet. Referring to the
mine map, (Exhibit R-3), Mr. Cook marked the mine areas where he
found the accumulations. He stated that a lot of the
accumulations were along the rib line and some had been left in
the roadway. Coal had been scooped up and placed in piles at six
locations, and the "piles" were 16 to 18 feet wide, 6 to 10 feet
long, and 3 to 24 inches deep. The remaining accumulations were
"here and there, numerous places along the ribs and along the
roadway." He measured the accumulations with a rule, and
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although they varied in size, the widths and lengths were
basically "about the same" (Tr. 91-95).
Mr. Cook stated that the area in question is one of the
returns off the first left section and it is required to be
traveled on a weekly basis by the fire boss (Richard Patton), who
is responsible for inspecting the area. If he is not present, a
foreman or other certified person is required to conduct a weekly
examination of the area. Some of the area was rock dusted, and
some of the accumulations were rock dusted (Tr. 96).
Mr. Cook stated that he based his unwarrantable failure
finding on the following (Tr. 97-98):
A. Due to the fact that a lot of the accumulations were
ranging up to one thousand foot outby the working section
indicates that the accumulations had been there for a long
time and were left, and in some cases were placed and left.
75.400 requires that no accumulation shall be permitted --
no loose coal or coal dust or combustible material shall be
allowed to accumulate in the coal mines. And they allowed
this to accumulate for at least a month, month and a half
from the time I found it. It had been placed there and
left.
Mr. Cook stated that he concluded that the accumulations
were allowed to accumulate for at least a month or a month and
half before he found them because the mine map (Exhibit R-3),
shows that "the earliest they could have started in this area was
3/14/91". He explained that this was the date that the engineers
surveyed the area and they were "approximately at that location"
at the mouth of the section (Tr. 98). Mr. Cook stated that some
of the cited areas had been cleaned, but the accumulations were
placed in piles and left, and some of the areas had never been
cleaned. The violation was abated after the entire return was
cleaned "from just around the overcast up to the section"
(Tr. 99).
On cross-examination, Mr. Cook agreed that if the previous
citation No. 3740213, which he cited in support of the order, is
found not to be an unwarrantable failure violation, the order
would not be unwarrantable and there would be no "S&S" finding
because it has been modified to a non-"S&S" order (Tr. 100).
Mr. Cook could not recall whether he was told that mining in
the area had started at the beginning of the quarter or at the
end of the last quarter which is shown as March, 1991, on the
mine map. The inspector who last inspected the mine before he
did was no longer employed by MSHA when he conducted his
inspection, and Mr. Cook's supervisor told him that "they were
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just getting ready to start up this first left at the end of the
last quarter, which would have been the end of March" (Tr. 101).
Mr. Cook confirmed that the coal accumulations were damp,
but were still combustible. However, there were no ignition
sources such as power cables or electrical installations in the
return (Tr. 101-102). Responding to questions concerning his
prehearing deposition of July 8, 1992, Mr. Cook confirmed that he
previously stated that the coal dust accumulations which he
observed were not combustible (Tr. 103). Responding further,
Mr. Cook explained that any loose coal, wet or dry, is considered
to be combustible material, but that it needs an ignition source
to make it burn (Tr. 103). He confirmed that he did not make any
combustibility tests because the coal was damp and wet and there
was no way to determine the content of the incombustible material
at that time (Tr. 105).
Mr. Cook stated that Company representative Kennedy did not
travel the return airway with him until after he found the
accumulations and issued the order. He then went back to the
cited locations with Mr. Kennedy to show him the conditions, and
Mr. Kennedy offered no explanation, but stated that "he could see
what the problem was" (Tr. 106). Mr. Cook stated that he checked
the prior weekly examination records and he believed that he
found an entry which stated "None Observed" (Tr. 106). He
confirmed that the accumulations did not extend continuously for
one thousand feet, but they were "here and there" within that
distance (Tr. 107).
Respondent's Testimony and Evidence
Ronald L. Kennedy, mine chief electrician, stated that he
performed a preshift examination in the mine between 4:30 and
5:30 a.m., on April 16, 1991, and recorded the results in his
examiner's report (Tr. 109; Exhibit R-2). He stated that he
found a reflector at the No. 2 to No. 3 break, and that the No. 6
to No. 7 break, and the No. 7 to No. 8 break were not bolted, but
were reflected (Tr. 110). His report shows that he reported the
results of his preshift examination to foreman Clyde Bailey
(Tr. 111). Mr. Kennedy explained that his examination notations
"needs bolted, reflector" for the No. 6 to No. 7 entry means that
a crosscut was not bolted and that there was a reflector there.
He further explained that a "reflector" is a piece of red tape
which is hung on the last roof bolt, and he confirmed that a
reflector was in the area when he conducted his examination, and
if it were not present he would have installed one as a warning
to miners not to proceed beyond the last roof bolt. He stated
that he would not have knowingly signed the examination book if
the reflector had not been in the No. 6 to the No. 7 area
(Tr. 111-112).
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On cross-examination, Mr. Kennedy stated that his report
does not reflect any observations that he may have made in the
No. 6 heading, but he was sure that he inspected that location
and knew of no violations. He stated that the reflectors which
he observed and recorded were standard markers used in the mine
and they were hanging down four to five inches from the roof
(Tr. 113). He confirmed that the No. 7 break needed bolting and
was not temporarily supported,and he observed no debris or coal
in the break (Tr. 114).
Referring to a mine map (Exhibit R-3), Mr. Kennedy
identified the No. 6 to No. 7 break area as the circled blue area
on the map (Tr. 114-115). Mr. Kennedy stated that he could not
recall seeing anything in the No. 6 entry and he did not see any
reflector there (Tr. 115). He stated that his crew were
maintenance people and were not in the face area, but that he had
to travel through the intersection area to conduct his examin-
ation. He could not remember whether a pump car was in the area
during the shift, but stated that "there might have been one in
there" (Tr. 116).
In response to further questions, Mr. Kennedy stated that he
saw no need for a reflector in the No. 6 entry and that is why he
did not note the lack of a reflector in his report. He confirmed
that all of the reflectors noted in his report were in place, and
that he did not put them up. He explained that reflectors are
supposed to be hung on the last bolt after a place is mined, and
if it is torn down, he will replace it (Tr. 117-118). Based on
his experience as a mine examiner, he believed that there were
adequate reflectors in the intersection. He could not recall
whether the No. 6 entry had been mined, but he did see the
reflector in the No. 6 to No. 7 break at the time of his
examination (Tr. 119).
Richard Patton, union employee and belt fire boss, confirmed
that he accompanied Inspector Cook during his inspection on
April 16, 1991. He stated that Mr. Cook "duckwalked" and
"crawled a little ways" into the No. 6 to No. 7 crosscut, and
although he was not sure, he believed that Mr. Cook was "a little
bit past the rib" when he told him to go and get foreman Bailey
and that "that place was down and the one on the left was down,
too" (Tr. 122). Mr. Patton stated that he observed some tracks
in the area but did not know the direction of travel (Tr. 122).
Mr. Patton stated that Mr. Cook may have been four to five feet
into the crosscut when he measured the area, but he could not
remember. He marked the mine map (Exhibit R-3), with a red "x"
mark to show where he and Mr. Cook were located (Tr. 123).
On cross-examination, Mr. Patton confirmed that he looked
for a reflector with Mr. Cook and although a reflector
(streamer) was laying on the ground, he could not recall the
particular location (Tr. 124). Mr. Patton confirmed that he
Page 15
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remembered the citation that was issued for unsupported roof, but
did not remember the one concerning the reflectors (Tr. 126). He
acknowledged that he was mistaken when he marked the mine map
location where he and Mr. Cook were at and stated that "I must
have been one back, because that hadn't been drove up yet, I
guess" (Tr. 127).
In response to questions concerning the two cited roof
locations in the No. 6 entry and the No. 6 to No. 7 break, which
are marked in orange and blue on the mine map (Exhibit R-3),
Mr. Patton recalled that a five or ten foot cut had been made in
the No. 6 entry and it was not supported. With regard to the
break, he stated that "it seemed like it might have been a row or
something in it there. I can't remember". (Tr. 129).
Guvenc Argon, respondent's president, testified that he
holds a master's degree in mining engineering from Achen, West
Germany Technical University, and that he has worked in the
mining industry for 34 years. He stated that he was familiar
with the three contested violations in question, and that he has
read the orders and citation issued by Inspector Cook. He stated
that he prepared the mine map (Exhibit R-3), as part of his
"investigation" to determine the locations of the violations and
that he used the surveyors notes and foreman's daily reports from
April 11, 1991 through April 15, 1991, to prepare the mine legend
and to determine where mining had taken place on those days,
including the number of cuts taken and the mining footage. He
explained what he believed had been done up to the morning of
Tuesday, April 16, 1991, and confirmed that the map reflects the
status of mining at 7:00 a.m., that day (Tr. 130-141).
Mr. Argon speculated that Mr. Cook may have been in the
No. 7 to No. 8 intersection rather than in the No. 6 to No. 7
break and if he were in fact in the No. 6 and No. 7, Mr. Argon
did not believe that Mr. Cook could have measured 20 feet, and
that the maximum measurement would have been 14 feet (Tr. 143-
144). Relying on the records, Mr. Argon concluded that Mr. Steve
Bailey made the last cut in the break from the No. 6 to the No. 7
entry late in the evening on Saturday, April 13, 1991
(Tr. 141-145).
On cross-examination, and in response to questions as to how
far past the last row of roof bolts may have been mined into the
No. 6 heading, Mr. Argon stated that "I was not there. I did not
see it" (Tr. 153). Based on the map measurements, he concluded
that mining may have advanced one or two feet beyond the corner
(Tr. 153). Mr. Argon also explained some of the information
contained in the examination reports that he used to prepare his
mine map (Tr. 155-157).
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Findings and Conclusions
Docket No. WEVA 92-246
Fact of Violation, Citation No. 3740213, 30 C.F.R. 75.220(a)(1)
Inspector Cook issued the citation after concluding that the
respondent had violated its approved roof control plan by failing
to provide roof support at two openings of an intersection where
mining had advanced . The inspector cited the respondent with a
violation of 30 C.F.R. 75.220(a)(1), which provides as follows:
Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and
the mining system to be used at the mine. Additional
measures shall be taken to protect persons if unusual
hazards are encountered.
The applicable roof control plan relied on by the inspector
in support of Citation No. 3740213, is dated February 20, 1991
(Exhibit P-3). The inspector confirmed that the specific plan
provision which was not followed is found at pg. 4, paragraph 3
of the plan, and it states as follows:
3. Openings that create an intersection shall be
permanently supported or a minimum of one row of
temporary supports shall be installed on not more than
4-foot centers across the opening before any other work
or travel in the intersection.
In the course of the hearing, respondent's counsel
introduced Exhibit R-1, which purports to be a copy of page 4 of
the respondent's roof control plan (Tr. 90-91). Paragraph 3 of
the document contains the same language found in the roof control
plan relied on by the inspector except for the addition of a last
sentence which reads as follows: "This does not preclude
preshift and on-shift inspections". After further consideration,
I reject the respondent's unsubstantiated version of page 4 of
its plan, and I accept the approved plan as submitted by the
petitioner and received in evidence in this case as the more
credible and applicable plan provision (Exhibit P-3).
In the course of the hearing, respondent's counsel suggested
that on April 16, 1991, Inspector Cook was confused and thought
he was observing conditions in the No. 6 heading and the No. 6 to
No. 7 break, when in fact he was looking at conditions at the
No. 7 to No. 8 break and that he was confused as to exactly where
he was and what he observed. Counsel asserted that there was no
violation of the roof control plan because the No. 7 to No. 8
area was properly bolted before the No. 7 heading was mined
Page 17
~1706
(Tr. 17-18). Counsel took issue with Inspector Cook's findings
that both locations off the intersection in question were
unsupported, and counsel maintained that "if you're bolted in one
place or the other, you're legal. You can go to one or you can
go to the other" (Tr. 48).
According to the respondent's approved roof control plan,
the company official responsible for the plan was Safety Director
Doug Pauley (Exhibit P-3). Although respondent's counsel
indicated during the hearing that Mr. Pauley would be a witness,
Mr. Pauley was not called to testify (Tr. 90). However, in
response to certain bench comments, respondent's counsel stated
that "Doug Pauley was able to get underground about four or five
hours after all this happened. We had already had bolts put up,
temporary supports put up. There had been numerous abatements
measures taken already" (Tr. 148). Inspector Cook testified that
temporary supports were installed after he issued the citation,
and that when he next returned to abate the violation, both cited
locations were permanently supported (Tr. 37).
In support of the suggestion that Inspector Cook may have
been confused as to where he was in the mine at the time of his
inspection on April 16, 1991, and that he was observing
conditions at a location different from the one described in his
citation, the respondent presented the testimony of union fire
boss Richard Patton, who was with Mr. Cook during the inspection,
and company president Guvenc Argon, who was not with Mr. Cook and
did not view the cited conditions, and who reconstructed the
conditions after reviewing the citation and certain mine records
and reports.
Although Mr. Patton initially testified that he and Mr. Cook
were at an intersection in the No. 6 entry different from the
intersection identified by Mr. Cook on the mine map
(Exhibit R-3), Mr. Patton acknowledged on cross-examination that
he was mistaken, and he "guessed" that the location that he had
initially placed on the mine map had not as yet been driven
(Tr. 127). Further, Mr. Patton specifically recalled the roof
plan citation and he confirmed that a five or ten foot cut had
been made in the No. 6 entry and that it was not supported
(Tr. 128). With respect to the second location cited by
Inspector Cook, Mr. Patton stated that "it seemed like it might
have been a row or something in it there. I can't remember"
(Tr. 129).
Insofar as Mr. Argon's testimony is concerned, I am not
persuaded or convinced that it provides a credible basis for
establishing that Inspector Cook was at some location other than
the one he cited and testified about. During a bench colloquy
concerning Mr. Argon's testimony, respondent's counsel
characterized the testimony "as speculation that perhaps he
(Cook) was in the wrong entry" (Tr. 148). Further, although
Page 18
~1707
respondent's counsel indicated that Mr. Argon's testimony was
presented to address foreman Steve Bailey's belief that mining
only progressed to a certain point on April 13, 1991, and that
Mr. Bailey might be called to testify, Mr. Bailey was not called
(Tr. 158).
Although Mr. Cook acknowledged that his inspection of
April 16, 1991, was his first visit underground at the mine, and
that he initially believed that he was in the No. 1 entry, he
testified credibly that in order to make sure of his location
before issuing the citation, he asked both Mr. Patton and
Mr. Clyde Bailey about it and they told him that he was in the
No. 6 entry (Tr. 42). Mr. Cook also testified credibly that
after issuing the citation and subsequent order, Clyde Bailey
assembled the crew so that he (Cook) could speak with them about
the violation, and that no one spoke up to dispute his findings
(Tr. 36).
After careful consideration of all of the testimony and
evidence in this case, I reject the respondent's suggestion that
Inspector Cook may have been at a location different than the one
described in his citation at the time he viewed the unsupported
roof areas in question. I conclude and find that Inspector Cook
was at the location described in the citation which he issued.
The respondent's applicable roof control plan provision
required all openings creating an intersection to be permanently
supported or temporarily supported with a minimum of one row of
supports on not more than 4-foot centers across the openings
before any work or travel in the intersection. Although
Inspector Cook confirmed that if one of the cited roof locations
had been supported in compliance with the roof control plan, the
failure to support the other location would not have been a
violation, I find no credible evidence establishing that any of
roof locations cited by Inspector Cook were supported. Inspector
Cook's credible testimony that the cited roof location in the
No. 6 entry was unsupported was corroborated by fire boss Patton.
With regard to the second location, the No. 6 to No. 7 crosscut
break, the inspector's testimony that it too was unsupported is
corroborated by the preshift examination report of examiner
Ronald Kennedy (Exhibit R-2), and Mr. Kennedy's testimony
confirming that the break was not bolted or temporarily
supported. Under the circumstances, I conclude and find that
both of the cited roof locations off of the intersection in the
No. 6 entry, and in the No. 6 to No. 7 crosscut break, were
unsupported and the inspector's findings in this regard are
affirmed.
Although Inspector Cook confirmed that he had no evidence
that anyone had gone out under unsupported roof in the two cited
locations, he nevertheless concluded that someone had performed
work and travelled through the supported intersection past the
Page 19
~1708
unsupported roof areas off of the intersection. Mr. Cook's
conclusion in this regard was based on his observations of
"ridges of coal" accumulations which had apparently been pushed
into the crosscut between the No. 6 and No. 7 entries, rubber-
tired scoop or tractor tracks going down the No. 6 heading, and
his belief that miners had to pass by one of the openings off of
the intersection to mine the other opening. Fire boss Richard
Patton and electrician Ronald Kennedy confirmed that they
observed the tire tracks, but did not know the direction in which
they travelled. Mr. Kennedy believed that a pump car may have
been in the area, but he could not recall for certain. However,
he confirmed that he had to travel the intersection to conduct
his preshift examination (Tr. 116).
I conclude and find that the credible testimony of Inspector
Cook establishes that the two cited locations off of the
intersection in the No. 6 entry as shown on the mine map,
(Exhibit R-3), were not supported as required by the respondent's
approved roof control plan, and that work or travel had been
performed in those areas without the required additional roof
support. Under the circumstances, I conclude and find that the
petitioner has established a violation by a preponderance of the
evidence, and the violation IS AFFIRMED.
Fact of Violation, Order No. 3740214, 30 C.F.R. 75.208.
Inspector Cook issued the violation after finding that the
unsupported roof areas which he previously cited in Citation
No. 3740213, were lacking the readily visible warning devices
required by mandatory safety standard 30 C.F.R. 75.208, which
provides as follows:
Except during the installation of roof supports, the
end of permanent roof support shall be posted with a
readily visible warning, or a physical barrier shall be
installed to impede travel beyond permanent support.
Inspector's Cook's credible and unrebutted testimony clearly
establishes that at the time he inspected the intersection and
the adjacent two cited unsupported roof areas, there were no
readily visible warnings posted to warn miners not to enter those
areas. As a matter of fact, in the course of the hearing,
respondent's counsel conceded that "there was no reflector in the
intersection" when the inspector was at that location at
7:15 a.m., and counsel asserted that the respondent has "never
taken the position that there was a reflector there. There
wasn't" (Tr. 18, 163). The failure to post such reflectors, or
other appropriate warning devices, constitutes a violation of
section 75.208. See: Day Branch Coal Co., Inc., 12 FMSHRC 247
(February 1990); Ramblin Coal Co., 14 FMSHRC 1025 (June 22,
1992). Under all of these circumstances, I conclude and find
that the petitioner has established a violation of
Page 20
~1709
section 75.208, by a preponderance of the credible evidence
adduced in this matter, and the violation IS AFFIRMED.
Docket No. WEVA 92-247
Fact of Violation. Order No. 3739989, 30 C.F.R. 75.400.
Inspector Cook issued the violation after finding
accumulations of loose coal and coal dust at the locations
described in the order, and he cited a violation of 30 C.F.R.
75.400, which provides as follows
Coal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
I conclude and find that the credible testimony of Inspector
Cook with respect to his observations and measurements of the
accumulations in questions has not been rebutted by the
respondent and it clearly establishes the existence of the
accumulations. Indeed, in the course of the hearing the
respondent's counsel conceded that the cited accumulations did in
fact exist (Tr. 19, 164). However, in closing arguments, counsel
raised the issue as to whether or not accumulations of loose coal
and coal dust which are not combustible may support a violation
of section 75.400 (Tr. 164-165).
Inspector Cook testified that notwithstanding the absence of
any ignition sources, accumulations of loose coal and coal dust
are still considered to be combustible materials that will burn
if ignited by an ignition source (Tr. 101, 103). He acknowledged
that he did not sample the coal or make any combustibility tests
because he had no way to make that determination with the damp
and wet coal which was present (Tr. 105). Mr. Cook also
acknowledged that in his prior deposition, he answered "no" in
response to a question as to whether he believed the cited
accumulations were combustible (Tr. 103). In explanation of that
answer, Mr. Cook suggested that his answer may have been taken
out of context, and that the question may have been preceded by
other questions dealing with his "S&S" finding (Tr. 103-104).
The respondent's suggestion that the violation should be
dismissed because of the inspector's failure to establish that
the coal accumulations were in fact combustible IS REJECTED.
Although the inspector agreed that no ready sources of ignition
were present, he testified credibly that although the coal
accumulations were damp, they were nonetheless combustible.
See: R.B.M Enterprises, Inc., 13 FMSHRC 222 (February 1991),
holding that wet and muddy mine conditions did not preclude a
Page 21
~1710
violation of section 75.400, since wet accumulations are still
combustible. See also: Secretary v. Black Diamond Coal Mining
Company, 7 FMSHRC 1117 at pgs. 1120-1121 (August 1985); and Utah
Power & Light Company v. Secretary, 12 FMSHRC 965, at pgs. 968-
969 (May 1990), where the Commission observed that even though
coal accumulations may be damp or wet they are still combustible.
I conclude and find that Inspector Cook's credible and
unrebutted testimony with respect to his personal observations
and measurements of the cited coal accumulations establishes that
they existed as charged in the notice of violation served on the
respondent. With regard to the issue of combustibility, while it
is true that Mr. Cook testified at his deposition that he did not
believe the accumulations were combustible, after reviewing the
deposition page submitted by the respondent's counsel, I agree
with Mr. Cook's assertion that his response, taken in contest,
was in connection with other questions concerning his "S&S"
finding. In any event, it seems clear to me from Mr. Cook's
credible and unrebutted hearing testimony that while wet and damp
coal cannot be ignited in the absence of an ignition source, such
accumulations are nonetheless still combustible.
In view of the foregoing, and after careful consideration of
all of the evidence in this case, and in the absence of any
credible rebuttal by the respondent, I conclude and find that the
cited coal accumulations were combustible and constituted a
violation of section 75.400, and the violation is therefore
AFFIRMED.
Significant and Substantial Violations
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)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the 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 its interpretation of the term "significant
and substantial" as follows:
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-
Page 22
~1711
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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that 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). We have emphasized that, in
accordance with the language of section 104(d)(1),
it is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Citation No. 3740213
In support of his significant and substantial (S&S) finding
Inspector Cook took into account his prior knowledge of fatal and
serious accidents (not at respondent's mine) resulting from
mining past an opening that is not supported. Although Mr. Cook
did not personally observe anyone under unsupported top, based on
his observations of coal accumulations and tire tracks, he
concluded that the coal had been pushed through the breakthrough
and that someone had passed by the unsupported roof area while
travelling through the area doing this work. He also indicated
that the two unsupported roof areas had been mined, and that in
the next step in the mining cycle miners would go to those areas
to support the roof before cleaning up the coal accumulations.
Mine Electrician Kennedy confirmed that he had to travel through
the intersection while performing his preshift examination, and
this was before Mr. Cook arrived in the area.
Although Mr. Cook confirmed that he saw no evidence that the
roof was dripping and did not believe that there was an immediate
danger of the roof falling, he nonetheless confirmed that he was
concerned that the unsupported top could fall, and if it did, it
could "ride back past your permanent supports" (Tr. 29).
Page 23
~1712
Further, even through he acknowledged that he observed no one in
the area, he was still concerned that miners had been exposed to
the unsupported roof areas when they were mined and he did not
want the miners exposed again to unsupported roof areas because
"the more times you expose miners to this type of areas leads
them up to having more chances of them getting roof on them"
(Tr. 63).
The Commission has taken note of the fact that mine roofs
are inherently dangerous and that even good roof can fall without
warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January
1984). It has also stressed the fact that roof falls remain the
leading cause of death in underground mines, Roof Mining Co.,
4 FMSHRC 1207, 1211 & n. 8 (July 1982); Halfway Incorporated,
8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company, supra.
In the Consolidation Coal Company case, supra, the
Commission affirmed my "S&S" finding concerning an over-wide roof
bolting pattern which had existed along a supply track for a
period of 6-months, and stated that "[T]he fact that no one was
injured during that period does not ipso facto establish that
there was not a reasonable likelihood of a roof fall."
In U.S. Steel Mining Company, Inc., 6 FMSHRC 1369 1366 (May
1984), Judge Melick found that a hazardous roof condition was
significant and substantial notwithstanding testimony from a mine
foreman that it was unlikely that the roof would fall "right
away," and his belief that the condition was not unsafe because
he and the inspector were under the roof while taking certain
measurements. In R B J Coal Company, Inc., 8 FMSHRC 819, 820
(May 1986), Judge Melick cited Mathies Coal Company, 6 FMSHRC 1
(1984), in support of his finding that a hazardous roof condition
constituted a significant and substantial violation even in the
absence of an "immediate hazard."
In Halfway Incorporated, supra, the Commission upheld a
significant and substantial finding concerning a roof area which
had not been supported with supplemental support, and ruled that
a reasonable likelihood of injury existed despite the fact that
miners were not directly exposed to the hazard at the precise
moment of the inspection. In that case, the Commission stated as
follows at 8 FMSHRC 12:
[T]he fact that a miner may not be directly exposed to
a safety hazard at the precise moment that an inspector
issues a citation is not determinative of whether a
reasonable likelihood for injury existed. The
operative time frame for making that determination must
take into account not only the pendency of the
Page 24
~1713
violative condition prior to the citation, but also
continued normal mining operations. National Gypsum,
supra, 3FMSHRC at 825; U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574 (July 1984).
I agree with Inspector Cook's credible and unrebutted
testimony that in the context of continued mining operations on
the section, miners would be exposed to the hazards of a roof
fall in the two cited unsupported roof areas adjacent to the
intersection in the No. 6 entry, and that if the roof was to fall
it could ride back past the supported intersection. If this were
to occur, I believe one may reasonably conclude that any miners
working or travelling the intersection would be exposed to the
hazards of a roof fall. If a roof fall had occurred, I further
believe that that it was reasonably likely that the affected
miners would sustain injuries of a reasonably serious nature.
Under all of these circumstances, I conclude and find that
Inspector Cook's "S&S" finding was both reasonable and proper,
and IT IS AFFIRMED.
Order No. 3740214
Inspector Cook based his "S&S" finding on his belief that in
the absence of a visible warning device someone could venture out
beyond the supported intersection into the areas of unsupported
roof in the No. 6 entry and the No. 6 to No. 7 crosscut break
where coal accumulations had been pushed. Since the areas in
question were in an active working section, Mr. Cook believed
that anyone could have gone into these areas under unsupported
roof and exposed themselves to the hazards of a roof fall.
Although Mr. Cook did not believe that there was an immediate
danger of the unsupported roof areas falling, he nonetheless
believed that under normal mining operations the absence of
visible warnings to alert miners to stay out of the unsupported
roof areas exposed them to a hazard and increased the chances of
a fatality if the roof were to fall.
The obvious purpose of requiring visible warnings is to
alert miners to stay out of areas where the roof is not
supported. Although preshift examiner Kennedy's testimony
reflects that he found a warning tape installed at the No. 6 to
No. 7 break when he conducted his preshift approximately two
hours before Inspector Cook observed the area, I take note of the
fact that Mr. Kennedy confirmed that no warning was posted in the
No. 6 entry. However, the fact remains that Inspector Cook found
no warning devices in place at either location when he inspected
the areas. Under the circumstances, I agree with Mr. Cook's
safety concerns, and I conclude and find that in the course of
continued normal mining operations a measure of danger to safety
was contributed to by the violation, and that it was reasonably
likely that miners would venture beyond the unsupported areas
which were not posted with visible warnings, thereby exposing
Page 25
~1714
them to the dangers of fall of unsupported roof. If the
unsupported roof were to fall on a miner, I believe it would
result in a fatality, or injuries of a reasonably serious nature.
Under the circumstances, the inspector's "S&S" finding IS
AFFIRMED.
Order No. 3739989
In the course of the hearing, petitioner's counsel requested
that the prior "S&S" finding made by the inspector be modified to
non-"S&S" (Tr. 16, 97). In support of the request, counsel
stated that the inspector has now determined that the violation
was not significant and substantial (Tr. 16-17). Inspector Cook
confirmed that this was the case, and he stated that in the
absence of any ignitions sources, and any history of excess
liberation of methane, he did not believe that the cited damp and
wet coal accumulations constituted a significant and substantial
violation (Tr. 104-105) Respondent's counsel agreed that in the
absence of any ignition sources, the accumulations which were
present in the damp return entry did not constitute a significant
and substantial violation (Tr. 19). Under the circumstances, the
petitioner's request to modify the violation to non-"S&S" was
granted from the bench, (Tr. 97), and my decision in this regard
is herein reaffirmed.
Unwarrantable Failure Violations
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several subsequent decisions concerning the
interpretation and application of the term "unwarrantable
failure," the Commission further refined and explained this term,
and concluded that it means "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
Page 26
~1715
10 FMSHRC 249 (March 1988). Referring to its prior holding in
the Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless", or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New
International Dictionary (Unabridged) 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
Citation No. 3740213
Inspector Cook testified that he considered the violation to
be an unwarrantable failure because the approved roof control
plan is the respondent's plan and everyone working on the section
should review it and know what the plan requires (Tr. 32-33; 40).
Mr. Cook also testified that when he assembled the crew after the
citation was issued to speak to them about the matter, they
acknowledged that they were aware of the roof control plan for
supporting the cited locations and no one spoke up to the
contrary or suggested that a violation had not occurred
(Tr. 35-37).
Inspector Cook had no knowledge as to which production crew
may have last mined the cited areas and he confirmed that he did
not review any mine production records to determine when anyone
was last present in those areas. Based on the reconstructed mine
map and legend produced by the respondent (Exhibit R-2), Mr. Cook
stated that it would appear that mining took place in the area
three days prior to his inspection (Tr. 87). Although Mr. Cook
believed that a water pump car may have travelled through the
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area, and he observed coal pushed into the break adjacent to the
intersection in the No. 6 entry, he had no evidence to establish
when these events may have occurred, and he conceded that these
activities would have occurred under supported roof in the
intersection, and he had no evidence that anyone actually
travelled under unsupported roof.
The cited roof control plan requires roof support across an
intersection opening before any other work or travel in the
intersection. Thus, it would appear that such support is not
required until such time as men are expected to work or travel in
the intersection. Mr. Argon testified that the foreman's report
for April 12, 1991, shows that the No. 6 entry was bolted, but
that the April 13, 1991, report shows that it was not bolted.
Mr. Argon could not further explain these entries and he deferred
to foreman Steve Bailey, the individual whose signature appears
on the reports. However, Mr. Bailey was not called or subpoenaed
for testimony and it does not appear that he was deposed. In the
absence of any credible testimony from witnesses who were
actually present during the mining activities which may have
taken place during the days prior to Mr. Cook's inspection, I
find no credible evidence to establish that the respondent
deliberately and consciously failed to act, or engaged in conduct
which one may reasonably conclude was aggravated. I also note
the absence of any prior violations of section 75.220(a)(1).
Under the circumstances, and coupled with the inspector's belief
that the violation was an unwarrantable failure because the
respondent "knew or should have known" about the requirements of
its own roof control plan, I cannot conclude that the petitioner
has carried its burden of proof to establish that the violation
was in fact an unwarrantable failure violation within the
parameters established by the Commission's decisions.
Accordingly, the inspector's unwarrantable failure finding IS
VACATED, and the section 104(d)(1) citation IS MODIFIED to a
section 104(a) citation.
Order No. 3740214
Inspector Cook testified that the requirement for visible
warning devices at the end of permanent roof supports was a part
of the respondent's roof control plan until it was enacted as a
part of MSHA's mandatory safety standards. Mr. Cook based his
unwarrantable failure finding on his belief that the respondent
should have known about any roof control requirements as well as
the regulatory standards pertaining to roof control (Tr. 73).
However, Mr. Cook confirmed that after reviewing the preshift
inspection book for April 16, 1991, he assumed that someone had
placed warning reflectors in the areas shown in the book entries
(Tr. 86). Further, although his prior deposition testimony that
one warning reflector placed in the middle of the intersection
would suffice to comply with section 75.208, was contrary to his
hearing testimony that two reflectors would be required (one at
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each cited location), Mr. Cook candidly conceded that he would
not consider this to be an unwarrantable failure violation
because "they at least tried to post it off" (Tr. 81).
I accept as credible the unrebutted testimony of mine
electrician Ronald Kennedy who conducted a preshift examination
on April 16, 1991, approximately two hours before Inspector Cook
arrived on the section to conduct his inspection. Mr. Kennedy
testified that he observed a reflector at the No. 6 to No. 7
break and that the inspection book contained no additional
notations as to what he may have observed in the No. 6 entry. I
take note of the fact that the foreman's reports for the three or
four days prior to the inspection on April 16, 1991, contain no
information that reflectors were needed at the cited locations in
question (Exhibit R-3). I also note the absence of any prior
citations for violations of section 75.208, in the respondent's
history of prior violations (Exhibit P-1).
After careful consideration of all of the evidence and
testimony in this case, I find no credible evidence of any
egregious or aggravated conduct on the part of the respondent in
connection with this violation. In my view, the inspector's
belief that the respondent knew or should have known about the
requirements found in section 75.208, falls short of the standard
of conduct required by the Commission's decisions to support an
unwarrantable failure violation. Accordingly, the inspector's
unwarrantable failure finding IS VACATED, and the contested order
IS MODIFIED to a section 104(a) citation.
Order No. 3739989
In support of the order in question, Inspector Cook relied
on the previously issued section 104(d)(1) Citation No. 3740213,
which has been modified to a section 104(a) citation. With
regard to his prior "S&S" finding with respect to the order,
Inspector Cook changed his position and agreed that the violation
was non-"S&S", and the order was modified accordingly. Inspector
Cook agreed that if the section 104(d)(1) citation which he cited
in support of the order is found not to be an unwarrantable
failure citation, the order would not be an unwarrantable failure
order and the violation would not be "S&S" because it has been
modified to a non-"S&S" violation (Tr. 100).
In its posthearing brief the respondent argues that the
order was issued at the end of a "d-chain" beginning with
Citation No. 3740213, and it believes that this citation, as well
as Citation No. 3740214, should be modified to section 104(a)
citations. Assuming that this is done, the respondent further
believes that Order No. 3739989, is no longer part of a "d-chain"
and should initially be considered as a section 104(d)(1)
citation and nor an order. However, the respondent concludes
that a section 104(d)(1) citation must describe a significant and
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substantial condition, and that since the cited condition has
been modified to a non-significant and substantial violation, it
concludes that a section 104(d)(1) citation cannot stand as a
matter of law and that the order should be modified to a
section 104(a) citation.
After careful review of all of the facts and circumstances
surrounding the issuance of the order in question, and the
arguments presented by the parties, I agree with the respondent's
position and adopt its aforementioned arguments as my findings
and conclusions. Accordingly, the contested section 104(d)(1)
order IS MODIFIED to a section 104(a) non-"S&S" citation.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue to Business.
The parties have stipulated that the respondent is an
average sized mining operator and that the imposition of
appropriate civil penalty assessments will not adversely affect
its ability to continue in business. I conclude and find that
the civil penalty assessments which I have imposed for the
violations which have been affirmed are appropriate and will not
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The parties stipulated that the respondent has a low history
of prior violations, and I cannot conclude that its compliance
record is such as to warrant any additional increases in the
civil penalty assessments which I have made for the violations in
question.
Gravity
On the basis of my "S&S" findings and conclusions, I
conclude that the roof control and warning device violations
(Citation Nos. 3740213 and 3740214) were serious violations, and
that the coal accumulation violation (Citation No. 3739989) was
non-serious.
Negligence
I conclude and find that the roof control and warning device
violations were the result of the respondent's failure to
exercise reasonable care to prevent the violative conditions
which it knew or should have known existed on the section and
that this amounts to ordinary or moderate negligence. With
regard to the coal accumulations violation, I conclude and find
that the inspector's credible testimony concerning the duration
of the existence of the cited accumulations, including his
testimony that the coal was pushed into piles and left unattended
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and not cleaned up, supports a finding of a high degree of
negligence for this violation. I therefore conclude and find
that the violation resulted from a high degree of negligence on
the part of the respondent because of its failure to promptly
clean up and remove the cited accumulations in question.
Good Faith Compliance
The parties stipulated that the respondent exhibited good
faith in timely abating the violations in question and I adopt
this as my finding and conclusion with respect to all of the
violations.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that the
following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:
Docket No. WEVA 92-246
Citation No. Date 30 C.F.R. Section Assessment
3740213 4/16/91 75.220(a)(1) $275
3740214 4/16/91 75.208 $150
Docket No. WEVA 92-247
Citation No. Date 30 C.F.R. Section Assessment
3739989 4/29/91 75.400 $225
ORDER
IT IS ORDERED THAT:
-
The initial section 104(d)(1) "S&S" Citation
No. 3740213, April 16, 1991, citing a violation of 30 C.F.R.
75.220(a)(1), IS MODIFIED to a section 104(a) "S&S
citation, and as modified, IT IS AFFIRMED. -
The initial section 104(d)(1) "S&S" Order No. 3740214,
April 16, 1991, citing a violation of 30 C.F.R. 75.208,
IS MODIFIED to a section 104(a) "S&S" citation, and as
modified, IT IS AFFIRMED. -
The initial section 104(d)(1) "S&S" Order No. 3739989,
April 29, 1991, citing a violation of 30 C.F.R. 75.400, IS
MODIFIED to a section 104(a) non-"S&S" citation, and as
modified, IT IS AFFIRMED.
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- The respondent shall pay civil penalty assessments in
the amounts shown above for the three (3) violations which
have been affirmed. Payment is to be made to MSHA within
thirty (30) days of these decisions and Order, and upon
receipt of payment, these proceedings are dismissed.George A. Koutras Administrative Law Judge
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
/ml
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