Doss Fork Coal Company

Plain-English summary

The Commission reviewed four enforcement matters arising from conditions at Doss Fork’s Seminole Mine. It sent two orders back for further analysis of whether the operator’s conduct was an unwarrantable failure, and it vacated the dismissal of a third order after holding that the cited roof-examination standard was in effect on the citation date. It affirmed the judge’s high-negligence finding for a separate roof-support citation and left that matter otherwise undisturbed. The decision did not finally resolve the remanded violations.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.400, 30 C.F.R. § 75.202(a), 30 C.F.R. § 75.305, 30 C.F.R. § 75.202(b)
• Outcome: Two unwarrantable-failure determinations and a dismissal were vacated and remanded, while a separate high-negligence finding was affirmed.
• Key point: The Commission required further analysis of the evidence for three matters and affirmed the high-negligence finding for the fourth.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    February 16, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. WEVA 93-129
v. :
:
DOSS FORK COAL COMPANY :

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners1

                                  DECISION

BY: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

     This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), and involves three orders and one citation
issued to Doss Fork Coal Company (“Doss Fork”) by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) pursuant to sections 104(a) and (d) of the Mine Act, 30 U.S.C.
§§ 814(a) & (d). Administrative Law Judge Gary Melick determined that two violations giving
rise to orders were not the result of the operator’s unwarrantable failure. 16 FMSHRC 797 (April
1994) (ALJ). He also vacated a third order based on his determination that the underlying
regulation was not in effect at the time of the alleged violation. Id. at 812. He determined that
another cited violation was the result of the operator’s high negligence. Id. at 812-14. The
Commission granted the Secretary’s petition for discretionary review (“PDR”) challenging these
determinations.

   1
      Commissioner Riley assumed office after this case had been considered and decided at a

Commission decisional meeting. A new Commissioner possesses legal authority to participate in
pending cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16
FMSHRC 1218 n.2 (June 1994). In the interest of efficient decision making, Commissioner Riley
has elected not to participate in this matter.

Page 2

    The issues on review are whether the judge erred (1) in determining that two violations

were not the result of Doss Fork’s unwarrantable failure, (2) in vacating the third order based on
his determination that the underlying regulation was no longer in effect, and (3) in failing to
address the Secretary’s assertion that one of the cited violations resulted from the operator’s
reckless disregard. For the reasons that follow, we vacate and remand for further analysis the
judge’s determination that two violations were not the result of unwarrantable failure. We reverse
the judge’s determination that the regulation giving rise to the third alleged violation was not in
effect at the time of the order, vacate his order of dismissal, and remand for analysis of the
evidence as to that violation. We affirm the judge’s finding of high negligence as to the last cited
violation.

                                               I.

                                     Order No. 3554292

    On October 26, 1992, MSHA Inspector James Graham, accompanied by MSHA

Supervisor Clyde Ratcliff, observed that loose coal, mixed with pieces of rock, had been pushed
into ten crosscuts in the right return air course of Doss Fork’s Seminole Mine in McDowell
County, West Virginia. 16 FMSHRC at 809-810; Tr. I-194-97.2 Inspector Graham issued Order
No. 35542923 under section 104(d)(1) of the Act alleging a “significant and substantial” (“S&S”)4

   2
     The hearing was conducted over a period of five days. A separate transcript volume

was prepared for each day.
3
Order No. 3554292 stated in part:

            Loose coal and coal dust was stored at spot locations in the left and
            right cross-cuts in the right return air course starting one cross-cut
            inby survey station No. 375 and extended inby this point to within
            ten crosscuts of the face on the 002-0 section, a distance of
            approximately 1,200 feet. The loose coal and coal dust ranged in
            depth of up to 26 inches.

16 FMSHRC at 809.
4
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious in nature any violation that “could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard . . . .”

                                               2

Page 3

violation of 30 C.F.R. § 75.400.5 16 FMSHRC at 809. He also charged that the violation was
the result of Doss Fork’s “unwarrantable failure.” Id.

   The judge concluded that the cited material constituted a violation but determined that the

Secretary had not proven the violation was S&S, finding that “[t]here is insufficient evidence of
the combustibility of this admitted mix of rock, mud and coal and of the likelihood of an ignition
source.” 16 FMSHRC at 810. The judge also found that section foreman Carl Dalton had a
“good faith belief that the material was not a violative ‘accumulation,’” and that “[t]he testimony
of Dalton that the material had only recently been pushed into the crosscuts is also undisputed.”
Id. On those bases, he concluded that the violation was not the result of Doss Fork’s
unwarrantable failure. Id.

    The Secretary seeks review of the judge’s determination that the violation was not

unwarrantable, arguing that the violation was obvious and extensive. S. Br. at 10-11. Contrary
to the judge’s finding that the accumulation had “only recently” occurred, the Secretary asserts
that the accumulations had existed for more than three weeks. Id. at 13; see 16 FMSHRC at 810.
The Secretary also asserts that the judge failed to consider that, during a previous inspection on
June 3, 1992, the operator had been cited three times for storing coal in crosscuts. S. Br. at 14.
The Secretary further argues that the judge erred in concluding that the violation was not
unwarrantable based on the operator’s “good faith” belief that the accumulations were not
violative. Id. at 15-20. The Secretary urges that a good faith belief must also be “reasonable.”
Id.

     Doss Fork argues that it believed the accumulation was non-violative because it consisted

primarily of mud and rock; the entries were extremely wet and contained “shaley clod-rock,”
which, when exposed to water, turns to mud. D.F. Br. at 5-6. Doss Fork also argues that, prior
to the issuance of the subject order, two other inspectors had traveled through the same return
without issuing a warning or taking enforcement action. Id. at 6-7. The operator further states
that the “good faith” defense to unwarrantable failure should not include an additional
requirement of “reasonableness.” Id. at 9-12.

     The unwarrantable failure terminology is taken from section 104(d) of the Act and refers

to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9
FMSHRC 1997 (December 1987), the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”

   5
       30 C.F.R. § 75.400 provides:

                   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.

                                             3

Page 4

“indifference” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-94 (February 1991).

    The Commission has identified several factors to be considered in analyzing whether a

violation resulted from unwarrantable failure: among these are “the extensiveness of the violation,
the length of time that the violative condition has existed, the operator’s efforts to eliminate the
violative condition, and whether an operator has been placed on notice that greater efforts are
necessary for compliance.” Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February 1994).

    As to extensiveness of the violation, the judge found that there were accumulations of up

to 26 inches in depth in ten crosscuts. 16 FMSHRC at 809. As to the length of time the violative
condition had existed, the record does not support the judge’s finding that the violative
accumulation was a recent occurrence. Section foreman Dalton testified that the material was
pushed into the crosscuts during the last week of September or the first week of October, thereby
conceding that the accumulation had existed for at least three weeks. Tr. IV-119.

    The judge did not discuss the operator’s efforts to eliminate the violative condition or

whether Doss Fork had been placed on notice that greater efforts were necessary for compliance.
Concerning the latter factor, the Commission has examined, inter alia, whether an operator has
been previously cited for a similar violation. See, e.g., Youghiogheny and Ohio Coal Co., 9
FMSHRC 2007, 2011 (December 1987). Here, the record indicates that the operator was on
notice that the storing of coal, mixed with rock and mud, was violative. Prior to issuance of the
subject order, the operator was cited on June 3 and October 21, 1992, for three violations of the
same standard. 16 FMSHRC 802-03. In addition, MSHA warned the operator on October 15
about similar accumulations. Id. There is no indication that the judge considered this evidence in
his analysis.

     The Commission has held that, to serve as a defense to a finding of unwarrantable failure,

an operator’s good faith belief that his actions were not violative must also be reasonable. Cyprus
Plateau Mining Corp., 16 FMSHRC 1610, 1615 (August 1994) (holding that the judge erred in
failing to consider the reasonableness of an operator’s belief). Although the judge concluded that
the operator maintained a good faith belief that the cited condition was not violative, he did not
analyze whether that belief was reasonable. On remand, the judge shall provide such analysis.

     In addition, the judge’s determination that this violation was not unwarrantable is

inconsistent with his disposition of another accumulation violation (Order No. 3554286, issued
five days earlier on October 21, 1992), decided by the judge at the same time but not challenged
before the Commission. 16 FMSHRC at 801-05. In determining that that violation resulted from
an unwarrantable failure to abate, the judge considered very similar factual circumstances relating
to accumulations in the mine where damp conditions existed and where the operator also asserted
that it believed the cited material was non-violative rock and mud. The judge rejected the
operator’s defense and concluded that the violation was unwarrantable. This apparent

                                             4

Page 5

inconsistency must be reconciled by the judge. See Drummond Co., 13 FMSHRC 1362, 1369
(September 1991).

    Accordingly, we vacate the judge’s determination and remand for further analysis

consistent with this opinion.
II.

                                    Order No. 3554293

    On October 26, 1992, Inspector Graham, accompanied by MSHA Supervisor Ratcliff,

issued a section 104(d)(1) order6 alleging an S&S violation of 30 C.F.R. § 75.202(a),7 based on
his observation of inadequate roof support in the left return air course of the mine. 16 FMSHRC
at 810-11. Inspector Graham charged that the violation was the result of Doss Fork’s
unwarrantable failure. Id. at 811.

    The judge concluded that the cited condition constituted an S&S violation but determined

that the Secretary had not proven unwarrantable failure. 16 FMSHRC at 812. Relying on the
testimony of section foreman Dalton that he “had performed the weekly examination in the return
air courses on October 17, 1992, and at that time did not observe any hazardous roof conditions,”
and the fact that “the mine roof in this area of the mine could deteriorate rapidly,” the judge
concluded that the Secretary had not proven that the “deteriorated conditions found on October
26 had existed at the time of the previous weekly examination.” Id.

   6
       Order No. 3554293 stated in part:

            The mine roof in the left return air course is not adequately
            supported at spot locations starting at cross-cuts outby survey
            station no. 65 and extended outby this point to within 3 cross-cuts
            of the surface portal. There were several roof bolts at each location
            that were damaged to a point they no longer adequately supported
            the roof.

16 FMSHRC at 810.

   7
       30 C.F.R. § 75.202(a) provides:

                    The roof, face and ribs of areas where persons work or travel
            shall be supported or otherwise controlled to protect persons from hazards
            related to falls of the roof, face or ribs and coal or rock bursts.


                                             5

Page 6

    The Secretary seeks review of the judge’s finding and argues that the judge’s conclusion is

based on erroneous facts. S. Br. at 20-21. The Secretary maintains that, according to the record,
the cited area was examined on October 21, not October 17, as found by the judge. Id. The
Secretary also maintains that section foreman Webb, not Dalton, performed the relevant weekly
examination. Id. at 20. Doss Fork agrees with the Secretary that Webb conducted the weekly
examination on October 21, but argues that the judge’s error is not relevant because no roof
defects were observed during Webb’s examination. D.F. Br. at 14-15.

     In support of his conclusion that the roof conditions were violative, the judge credited the

testimony of both MSHA inspectors, and stated that “Graham’s testimony is corroborated in
essential respects by the testimony of . . . Ratcliff.” 16 FMSHRC at 811. Inspector Graham
testified that, during his inspection of the left return air course, “several places existed where roof
bolts were hanging down and exposing 24 inches between the roof and the plate.” Id.; Tr. II-6-7.
Graham also described three particular areas where groups of 6, 10, and 12 adjacent defective
bolts were observed. Id.; Tr. II-10-12. Additionally, Graham testified that there were many
other damaged bolts throughout the area “with cracked and loose rock in the roof with much of
the loose roof left hanging.” Id.; Tr. II-14. The judge also noted Graham’s conclusion that the
condition had existed for at least several weeks because of the state of deterioration. Id.; Tr. II-
18. Indeed, Graham disputed that the deterioration could have occurred within the five days since
the last weekly examination. Tr. II-27. MSHA Supervisor Ratcliff testified that the conditions he
observed were similar to an earthquake, with “fallen material in any direction you looked.” Tr. II-
132. He observed areas of major roof falls that he believed had existed for weeks because “[r]oof
transition that excessive doesn’t occur in a matter of days.” Tr. II-135-37.

    Section foreman Webb testified that he made the last weekly examination on October 21,

five days before the conditions were observed and cited by MSHA, and that he did not observe
any violative conditions at that time. Tr. V-4-5.

    The parties agree that the judge erroneously based his finding of no unwarrantable failure

on a weekly inspection date of October 17, instead of October 21, and on testimony from section
foreman Dalton rather than section foreman Webb. Because the judge failed to consider the
correct testimony regarding this violation and because the elapsed time between the weekly
examination and the day of inspection and citation appears to be relevant, we vacate the judge’s
negative conclusion as to unwarrantability and remand for his consideration of the appropriate
testimony.

                                              III.

                                     Order No. 3554294

   On October 26, 1992, after concluding from the weekly examination book that adequate




                                              6

Page 7

examinations had not been conducted, Inspector Graham issued a section 104(d)(1) order8
alleging an S&S violation of 30 C.F.R. § 75.305.9 The judge concluded that the cited standard
was no longer in effect on the day the order was issued and vacated the order. 16 FMSHRC at
812.

    The Secretary asserts that the judge erred in determining that section 75.305 was not in

effect on the day of citation. PDR at 9-10. The Secretary states that the regulation remained in
effect until November 16, 1992, the effective date of its final rule revising section 75.305. Id.,
citing 57 Fed. Reg. 34,683 (August 6, 1992). He urges that the order be remanded to the judge
for disposition on the merits. Id. Doss Fork, without commenting on whether the standard was
in effect at the time of citation, also urges remand to the judge. D.F. Br. at 17.

     As maintained by the Secretary, section 75.305 was among the standards that were revised

in the final rule, which did not become effective until November 16, 1992. Thus, the cited
standard was in effect on October 26, 1992, the date the order was issued. Accordingly, we
vacate the judge’s order dismissing this violation and remand for analysis of the record evidence
as to this alleged violation.

                                              IV.

                                    Citation No. 3981551

   On November 23, 1992, after observing Doss Fork’s roof bolter James Wright move

under unsupported roof while installing a roof support strap, Inspector Graham issued an

   8
       Order No. 3554294 stated in part:

                     Adequate weekly examinations for hazardous conditions
             in the return air courses of this coal mine are not being conducted.
            There were obvious violations that were observed and there was
            no report made of these violations in the weekly examination book.
   9
       30 C.F.R. § 75.305 (1991) provided in part:

            [E]xaminations for hazardous conditions . . . shall be made at least
            once each week . . . . [I]f any hazardous condition is found, such
            condition shall be reported . . . promptly. . . . A record of these
            examinations . . . shall be recorded . . . in a book . . . and the record
            shall be open for inspection . . . .


                                                7

Page 8

imminent danger order and the subject section 104(a) citation10 alleging an S&S violation of 30
C.F.R. § 75. 202(b).11 16 FMSHRC at 812-13. He also charged that the violation was the result
of Doss Fork’s high negligence. Id. at 813.

    In his post-hearing brief, the Secretary urged the judge to assess the proposed civil penalty

of $3,000, asserting that it was “consistent with the criteria set forth in the Act.” S. Post Hearing
Br. at 91. He also urged “the Court to modify the citation to conform to the evidence establishing
that a negligence finding of ‘reckless disregard’is appropriate in this case, and to adjust the
penalty accordingly.” Id. at 96.

    The judge found that an S&S violation was proved as charged, and that the violation was

“the result of high operator negligence.” 16 FMSHRC at 813. The judge assessed the $3000
penalty proposed by the Secretary. Id. at 814.

    In his PDR, the Secretary asserts that the judge erred because he failed to address the

Secretary’s request that the citation be modified to reflect a finding of reckless disregard. PDR at
11. The Secretary notes that, notwithstanding his post-hearing request for modification of the
citation by the judge, the Secretary was merely requesting that the judge consider the record
evidence and “make his own determination as to whether the operator’s violation should be
considered ‘reckless disregard.’” S. Br. at 23 n.11.12 Doss Fork defends the judge’s finding of

   10
        Citation No. 3981551 states in part:

            A roof bolt machine operator was observed traveling inby
            permanent roof supports in the face of the No. 3 cross-cut on the
            001-0 section. The roof bolting machine had been moved into the
            face of the No. 3 cross-cut and the machine operator traveled inby
            permanent roof supports to position a metal roof support strap
            before the T.R.S. [temporary roof support] had been installed
            against the roof.

16 FMSHRC at 812-13.

   11
        30 C.F.R. § 75.202(b) provides:

                    No person shall work or travel under unsupported roof
            unless in accordance with this subpart.

   12
       The Secretary also states, however, “[I]n sum, the evidence fully supports the

Secretary's request that [the citation] be modified to reflect a finding of ‘reckless disregard’and
that the penalty be adjusted accordingly.” S. Br. at 24-25.

                                               8

Page 9

high negligence on both procedural and substantive grounds, arguing that the Secretary’s attempt
to seek modification of the citation only after completion of the evidentiary hearing was untimely
and prejudicial. D.F. Br. at 18-19.

    The Commission has de novo authority in assessing civil penalties and is not bound by the

Secretary’s proposed penalties under section 110(i) of the Act. Sellersburg Stone Co., 5
FMSHRC 287, 290-93 (March 1983), aff’d, 736 F.2d 1147, 1151-52 (7th Cir. 1984). Thus, the
issue before the Commission is whether the level of negligence found by the judge is supported by
substantial evidence and whether the penalty he assessed is consistent with the six penalty criteria
set forth in section 110(i), one of which is the operator’s negligence, Warren Steen Constr., Inc.,
14 FMSHRC 1125, 1131 (July 1992), not whether the judge expressly responded to the
Secretary’s request for a finding of reckless disregard.13

      In reaching his conclusion of high negligence, the judge credited the testimony of MSHA

Inspectors Graham and Ratcliff over that of former superintendent Dillon as to Dillon’s prior
knowledge that miners were going inby permanent roof support when installing roof support
straps. Graham’s testimony was accurately summarized by the judge: “Dillon told him en route to
the section that the straps could not safely be installed and that it was causing workers to go inby
permanent supports.” 16 FMSHRC at 813; Tr. II-74-75. Ratcliff’s testimony was similarly
summarized by the judge: on November 16, 1992, Ratcliff received a call from Dillon, who
“complained about the necessity of miners to go inby the last row of permanent support in order
to install the straps.” 16 FMSHRC at 813; Tr. II-163-164. The judge rejected Dillon’s denial
that he had spoken to the inspectors about miners’exposure to unsupported roof before the cited
condition occurred. 16 FMSHRC at 813-14. The judge also relied upon the testimony of James
Wright, who admitted that, for two or three weeks prior to the instant citation, he had reached
inby permanent roof support to install the roof straps. Id. at 813; Tr. V-50-52. Thus, the record
evidence on which the judge relied is substantial and supports his conclusion of high negligence.

   Accordingly, we affirm the judge’s determination of high negligence.




   13
        Commissioners Doyle, Holen and Marks are of the opinion that the judge did not err in

failing to respond to the Secretary’s request for modification of the citation, which was set forth
in his post-hearing brief. They believe that a request for modification is in the nature of an appeal
for an order and therefore is properly made on motion. See Wyoming Fuel Co., 14 FMSHRC
1282, 1289 (August 1992) (citing Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990))
(footnote omitted) (“The Commission has previously analogized the modification of a citation to
an amendment of pleadings under Fed. R. Civ. P. 15(a)”). Chairman Jordan would treat the
Secretary’s request as one for modification of the penalty in light of the record evidence. See S.
Br. at 23 n.11. She believes that such a request need not be presented by motion.

                                              9

Page 10

                                         V.

                                     Conclusion

  For the foregoing reasons, we vacate and remand the judge’s determination as to

unwarrantable failure regarding Order Nos. 3554292 and 3554293 and his dismissal of Order No.
3554294. We affirm the judge’s determination of negligence with respect to Citation No.
3981551.

                                              _____________________________
                                              Mary Lu Jordan, Chairman



                                              _____________________________
                                              Joyce A. Doyle, Commissioner



                                              ______________________________
                                              Arlene Holen, Commissioner




                                              ______________________________
                                              Marc Lincoln Marks, Commissioner




                                         10