Consolidation Coal Company

Plain-English summary

Consolidation Coal operated the Robinson Run No. 95 underground coal mine in West Virginia. Judge Jacqueline R. Bulluck found that the mine lacked a readily accessible supply of supplementary roof-support materials within four crosscuts of the 12-D working section, in violation of 30 C.F.R. § 75.214. She found the violation significant and substantial, but concluded that the Secretary did not prove unwarrantable failure or more than ordinary negligence. The judge modified the order to a section 104(a) citation, reduced negligence to moderate, affirmed the citation as modified, and assessed a $2,000 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.214
• Outcome: Order No. 4888994 was modified from a section 104(d)(2) order to a section 104(a) citation, the unwarrantable-failure designation was deleted, negligence was reduced to moderate, and a $2,000 penalty was assessed.
• Key point: Emergency roof-support materials must be kept readily accessible, but the evidence here did not establish unwarrantable failure because mine officials took steps to obtain additional supplies after the inspector raised the issue.

Full text (FMSHRC public release)

CONSOLIDATION COAL COMPAN
June 9, 1999
WEVA 98-111

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041

                      June 9, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-111
Petitioner : A. C. No. 46-01318-04348
v. :
: Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                        DECISION

Appearances: Melonie J. McCall, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Petitioner;
Elizabeth Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Before: Judge Bulluck

 This proceeding  is before me upon a Petition for Assessment

of Penalty filed by the Secretary of Labor, through the Mine
Safety and Health Administration ("MSHA"), against Consolidation
Coal Company ("Consol"), pursuant to section 105(d) of the Mine
Safety and Health Act of 1977, 30 U.S.C. § 815.

 A  hearing was held in Morgantown,  West  Virginia.[1]   The

post-hearing briefs are of record. For the reasons set forth
below, the order contested in the instant proceeding, as modified
to a 104(a) citation, shall be AFFIRMED.

 I.  Stipulations

 The parties stipulated to the following facts:

 1.  The Administrative Law Judge and the Federal Mine Safety
 and Health Review Commission  have  jurisdiction to hear and
 decide this civil penalty proceeding and this contest

 proceeding  pursuant  to  section 105 of  the  Federal  Mine
 Safety and Health Act of 1977.

 2.  Consolidation Coal Company  is the owner and operator of
 the Robinson Run No. 95 Mine.

 3.  Operations at Robinson Run No.  95  Mine  are subject to
 the jurisdiction of the Act.

 4.   The  maximum penalty which could be assessed  for  this
 violation pursuant  to  30  U.S.C.  section  820(a) will not
 affect  the  ability  of  the Consolidation Coal Company  to
 remain in business.

 5.   A  true  copy  of  Order  No.  4888994  was  served  on
 Consolidation Coal Company or its  agent, as required by the
 Act.

 6.  Order No. 4888994 is authentic and  may be admitted into
 evidence for the purpose of establishing  its  issuance  and
 not  for  the  purpose  of  establishing the accuracy of any
 statements asserted therein.

 7.   MSHA Inspector Charles J.  Thomas  was  acting  in  his
 official  capacity  as  an  authorized representative of the
 Secretary of Labor when he issued Order No. 4888994.

 8.  Order No. 4888994 has not  been  the subject of previous
 review proceedings.

 9.   The  alleged violative conditions were  abated  by  the
 operator in good faith.

           10.   The  conversation in which Inspector Charles
 Thomas instructed foreman Kevin Carter to count the posts on
 the 12-D section took  place during the day shift of January
 15, 1998.


 II.  Factual Background

 On the day shift of January 15, 1998, while conducting a

Triple A inspection of Robinson Run No. 95, MSHA Inspector
Charles Thomas inspected the 12-D section. Mining on 12-D
had been ongoing for about four months, since October 1997
(Tr. 36, 56). While checking safety devices on the section,
Inspector Thomas noticed the absence of a centrally located
supply of supplementary roof support, which occasioned a
conversation between the inspector and the day shift
foreman, Kevin Carter.[2] The essence of the conversation
established that posts were scattered along the supply
track, and that 20 should be made readily available on the
section, in case of an emergency (Tr. 14, 96, 113-14).
Carter assured Inspector Thomas that he would "take care
of it," and the inspector did not count the posts along the
track that day (Tr. 14-15, 71, 96). When Inspector Thomas
left the mine, Dave McCullough, the safety representative
who had accompanied him during the inspection, was aware of
the inspector's concern, and the inspector alerted safety
director Robert Church that attention to supplementary roof
support was required on the 12-D section (Tr. 15).

 Sometime  toward  the  end of his shift on January 15th,

Carter counted 11 posts and cap pieces on the section along
the supply track, had the utility man, Charlie Davis, gather
them together alongside the supply car at the end of the
track, and called general mine foreman Tom Harrison for a
delivery of additional posts and related roof support
materials (Tr. 96-97, 100-01, 120, 131-32, 136-37). Around
3:30 or 4:00 that afternoon, Harrison ordered the posts from
the supply yard at the Robinson Run portal, some ten miles
from the Oakdale portal where the 12-D section is located,
anticipating that the supply crew would load and deliver the
additional materials on the next day, during their working
shift (Tr. 132-36).

 Subsequently, Inspector Thomas, continuing his Triple A

inspection of Robinson Run No. 95 during the midnight shift
on January 17th, found outby foreman Frank Slovinsky
substituting for the foreman regularly assigned to 12-D (Tr.
15, 28). When Slovinsky was unable to identify the location
of the emergency posts for Inspector Thomas, Slovinsky and
the inspector searched the section's tool car, down the
belt, track and return entries, and found a total of 11
posts, some cap pieces and wedges along the supply track
outby the mantrip station, approximately five to eight
blocks from the tailpiece; a saw could not be located on the
section (Tr. 15, 25-28). Consequently, Inspector Thomas
issued 104(d)(2) Order No. 4888994 at 3:30 that morning,
charging a violation of 30 C.F.R. § 75.214, describing the
violation as follows:

      No  supply  of supplementary roof support material
 was available at a  readily  accessible location within
 four crosscuts of the 12D (MMU  072-0) working section.
 This section has been in coal production  since October
 of    1997 and no supply of supplementary roof  support
 has been stored within four crosscuts of the face.   To
 abate  the  order  post[s]  were  obtained  on mainline
 haulage between 12D-5 North and 11D-5 North, a distance
 of over 2500 feet.  Also a timber saw was obtained  off
 or outby the mouth of this section

(Ex. P-1; Tr. 40).

 The  order  was  abated  between 3:30 and 5:00 that morning,

when miners Jesse Skinner and Danny Harbert, driven by foreman
Slovinsky in a personnel carrier (jeep), rounded up nine
additional posts from the crosscuts along the supply and the main
tracks, and ultimately stored 20 posts, a saw, cap pieces and
wedges at the No. 11 crosscut (Tr. 26-27, 67-68, 79-80,
Attachment A).

 III.  Findings of Fact and Conclusions of Law

 A.  Fact of Violation

 30 C.F.R. § 75.214 requires the following:

      (a)   A   supply  of  supplementary  roof  support
 materials and the  tools  and  equipment  necessary  to
 install  the  materials shall be available at a readily
 accessible location  on  each working section or within
 four crosscuts of each working section.

      (b) The quantity of  support  materials and  tools
 and equipment maintained available in  accordance  with
 this section shall be sufficient to support the roof if
 adverse  roof  conditions  are  encountered,  or in the
 event of an accident involving a fall.

 Robinson   Run   No.  95's   approved  roof  control  plan

specifies the quantity and type of supplementary roof support
material that shall be maintained in accordance with section
75.214:

      The   quantity   of   supplementary  roof  support
 material required by C.F.R. 30, 75.214(b) shall consist
 of a minimum of twenty (20) posts of proper length with
 sufficient cap pieces and wedges

(Ex. P-2; Tr. 20-21). It is clear from the evidence that
Consol had failed to maintain a supply of 20 posts and
associated installation tools and materials at a readily
accessible location on the 21-D working section, or within four
crosscuts of the loading point, at the time the order was
issued, and Consol acknowledges the violation (Tr. 86-87; Resp.
Br. at 6). However, Consol disputes that the violation was
"significant and substantial," the result of Consol's
"unwarrantable failure" to comply with the standard, and that
Consol was highly negligent in violating the standard.

 B.  Significant and Substantial

 Section  104(d)  of  the  Mine  Act designates a violation

"significant and substantial" ("S&S") when it is "of such a
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "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 set forth the four criteria that the Secretary must
establish in order to prove that a violation is S&S under
National Gypsum: 1) the underlying violation of a mandatory
safety standard; 2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation;
3) a reasonable likelihood that the hazard contributed to will
result in an injury; and 4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature. See
also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary, 861 F. 2d 99, 103-
04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria). Evaluation of the third
criterion, the reasonable likelihood of injury, should be made
in the context of "continued mining operations." U.S. Steel
Mining Co.,6 FMSHRC 1573, 1574 (July 1984). Moreover,
resolution of whether a violation is S&S must be based "on the
particular facts surrounding the violation." Texasgulf, Inc.,
10 FMSHRC 498, 501 (April 1998).

 Inspector Thomas  determined  that  the violation was S&S.

He testified that the strata above the Pittsburgh coal seam
running through Robinson Run No. 95 is unconsolidated slate
which, exposed during continuous miner or longwall advance and
retreat, becomes bad top (Tr. 28). He opined that, in the
event of a roof fall between roof bolts, it is reasonably
likely that a miner would suffer lacerations, contusions,
broken bones, trauma or, in the case of a major roof fall,
death (Tr. 28). The importance of having supplementary roof
support at the ready, he asserted, is to stop or contain the
fall, and to create a safe pathway for rescuers to reach and
assist the injured miner, as quickly as possible (Tr. 23, 29,
31). The inspector emphasized that 14 coal miners had been
killed due to roof fall in 1998, and four roof falls had
occurred in West Virginia in January 1998, alone (Tr. 23, 28).
He also noted some of the telltale signs of roof fall -- ribs
showing weight, roof sloughage and cracking -- but concluded
that roof conditions can change rapidly and that one cannot
predict when a fall will occur (Tr. 28-29, 32).

 The  evidence,  evaluated  in terms  of  continued  mining

operations, indicates that the roof conditions on the 12-D
section were good and that a roof fall was unlikely (Tr. 43-44,
100, 138). However, as the Secretary points out, section
75.214 contemplates unforseen or emergency circumstances
requiring swift attention, irrespective of existing roof
conditions. As such, while Consol was able to establish that
alternative roof support materials were available in different
locations throughout the section, locating and gathering these
materials is time consuming and left to happenstance at best,
contrary to the standard's purpose of insuring a consolidated,
readily accessible store of emergency supplies. This point is
illustrated by the fact that it took 1½ hours to locate and
gather the nine additional posts and related materials to abate
the order. The standard does not bar use of other roof support
materials, depending on the circumstances, but does insure that
a supply, ready for immediate use, exists at all times. I find
it reasonably likely that, in the event of an unforseen
emergency, failure to maintain the supply of supplementary roof
support materials, tools and equipment in the manner required
by regulation, would escalate the injuries of a roof bolter or
other miner to the extent of delayed rescue, and/or result in
serious injury to rescuers who might enter an area of bad top.
Therefore, I conclude that the violation was S&S.

 C.  Unwarrantable Failure

 "Unwarrantable failure" is aggravated conduct constituting

more than ordinary negligence. Emery Mining Corp., 9 FMSHRC
1997, 2001 (December 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of
reasonable care." Id. at 2001-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (February 1991).

 Inspector   Thomas   testified  that  he  attributed   the

violation to Consol's unwarrantable failure to comply with
section 75.214 because Robinson Run No. 95 had been previously
cited for the same violation in October 1997, foreman Slovinsky
lacked knowledge of the whereabouts of emergency supplies on
12-D, two miners had reported to the inspector that the section
had never maintained emergency supplies in a readily accessible
location and, despite focusing management's attention on the
condition during the day shift of January 15th, Consol had not
remedied the situation by the time he had returned on the
midnight shift of January 17th (Tr. 32, 35-36, 39, 41, 57, 62,
75, 83; Exs. P-3, P-4).

 The  record  makes  clear  that  Consol was aware  of  the

requirements of the standard, and that the company was notified
on January 15th that remedial measures for compliance were
necessary. Consol has established, through the Pre-Shift Mine
Examiner's Report of December 15, 1997, and foreman Carter's
credible testimony, that emergency posts had been available on
the 12-D section, contrary to the information upon which
Inspector Thomas relied (Ex. R-1; Tr. 93-95). The evidence
also establishes that foreman Carter and general mine foreman
Harrison acted promptly on January 15th in assessing the
deficiency and ordering additional supplies (Tr. 96-97, 132-
37). While Harrison testified credibly to the probability that
the supply crew had already left the supply yard by the time he
had ordered the additional posts on the afternoon of January
15th, Consol has advanced no explanation for the lack of
delivery during the supply crew's next working shift -- the day
shift on January 16th. Carter testified credibly that lack of
delivery on that shift did not cause him concern, but that no
delivery on the next day shift, January 17th, would have
merited his attention (Tr. 124-27). However, Inspector Thomas
issued the order prior to that shift. Based upon Inspector
Thomas's attention to 12-D's supplementary roof support on
January 15th, I find that Consol assumed the risk of being
cited by failing to ensure delivery to the section during the
supply crew's first available shift, i.e., the day shift of
January 16th. I do not find Consol's lack of follow-up, to the
time of the second inspection on the midnight shift of January
17th, to constitute intentional misconduct, recklessness or
serious lack of reasonable care that would amount to more than
ordinary negligence. Accordingly, I find that the Secretary
has not proven that the violation was the result of Consol's
unwarrantable failure.

 IV. Penalty

 While  the  Secretary  has  proposed  a  civil  penalty of

$5,000.00, the judge must independently determine the
appropriate assessment by proper consideration of the six
penalty criteria set forth in section 110(i) of the Act, 30
U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92
(March 1993), aff'd, 763 F. 2d 1147 (7th Cir. 1984).

 Consol is a large operator, previously cited for violation

of the same standard in October 1997, with an overall history
of violations that is not an aggravating factor in assessing
an appropriate penalty (Ex. P-6). As stipulated by the
parties, the proposed penalty will not affect Consol's ability
to remain in business.

 The  remaining   criteria  involve  consideration  of  the

gravity of the violation and the negligence of Consol in
causing it. I find the gravity of the violation to be serious,
since time is of the essence in providing safe passage for
rescue of miners who have been injured by unforseen adverse
roof conditions. Considering that supplementary roof support
materials had been maintained on the 12-D section prior to the
instant inspection, and crediting Carter and Harrison's efforts
to come into compliance with the standard, I ascribe moderate,
rather than high negligence to Consol. Therefore, having
considered Consol's large size, insignificant history of prior
violations, seriousness of the violation, moderate degree of
negligence, good faith abatement and no other mitigating
factors, I find that a penalty of $2,000.00 is appropriate.

                     ORDER

 Accordingly,  it  is  ORDERED  that  Order  No. 4888994 is

MODIFIED from a 104(d)(2) order to a 104(a) citation, 30 U.S.C.
§ 814(a), by deleting the "unwarrantable failure" designation
and reducing the level of negligence to "moderate," that the
citation is AFFIRMED, as modified, and that Consol pay a penalty
of $2,000.00 within 30 days of the date of this decision.

                          Jacqueline R. Bulluck
                          Administrative Law Judge

Distribution:

Melonie J. McCall, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

\nt

FOOTNOTES

 [1]:Due  to  the  court  reporter's  loss of portions of the

testimony of Inspector Thomas and Jesse Skinner, the parties
stipulated to a synopsis of Skinner's testimony, which was
incorporated into the record on March 9, 1999, as Transcript
Attachment A.

 [2]:It  is  customary  at  Robinson Run No. 95  for  working

sections to maintain supplementary roof support supplies on a
sled or tool car at the power center and track entry (Tr. 16-17,
104, Attachment A).