FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January 5, 2012

    DECISION

Appearances:  Matt S. Shepherd, Esq., of the Office of the Solicitor, U.S. Department of Labor, Denver, CO, on behalf of the Secretary of Labor;

Noelle Holladay True, Esq., of Rajkovich, Williams, Kilpatrick, Lexington, KY, and Gary D. McCollom, Esq., Corporate Counsel for Excel Mining, LLC, on behalf of Respondent, Excel Mining, LLC.

Before:            Judge L. Zane Gill

Procedural History

            This case involves a Petition for Assessment of Civil Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). It alleges that Excel Mining, LLC (“Excel”) is liable for a single 104(d)(1) violation of the Secretary's Mandatory Safety Standards (30 C.F.R. § 75.220) for Underground Coal Mines, and seeks a total civil penalty of $23,229.00. A hearing was held on April 6, 2011, in Pikeville, KY. The parties filed briefs after receipt of the transcript.

            For the reasons set forth below, I find that Excel committed a violation of 30 C.F.R. § 75.220, but I reduce the negligence to “moderate.” I conclude that the violation was significant and substantial (“S&S”) and constituted an unwarrantable failure to comply with the alleged mandatory standard. Thus, I impose a civil penalty in the amount of $6,997.00.

Stipulations

1.         At all times relevant to this proceeding, Excel Mining, LLC was the operator of the No. 3 mine, Mine ID Number 15-08079.

2.         The No. 3 mine is a “mine”, as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. Sec. 802(h).

3.         At all times relevant to this proceeding, products of the No. 3 mine entered commerce or the operations or products thereof affected commerce within the meaning and scope of Sec. 4 of the Mine Act, 30 U.S.C. Sec. 803.

4.         Employees at the No. 3 mine produced more than 1.7 million tons of coal in 2008. Excel Mining, LLC is a “large operator.”

5.         A copy of the citation at issue in this proceeding was served on Excel Mining, LLC by an authorized representative of the Secretary.

6.         Excel Mining, LLC timely contested the citation.

7.         Excel Mining, LLC is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission, and the presiding Administrative Law Judge has the authority to hear this case and issue a decision regarding this case.

8.         The proposed penalties will not affect Excel Mining, LLC’s ability to remain in business.

9.         On January 25^th, 2011, counsel for the Secretary requested that the Respondent produce copies of the pre-shift reports that were completed from July15th, 2008 to July 22^nd 2008 for the 004 section. The Respondent has indicated that these reports are no longer available.

Allegations

            Citation No. 8216265 (Exhibit G-1) alleges that Excel violated the mandatory standard found at 30 C.F.R. § 75.220, relating to roof control plans (“RCP”). Specifically, it alleges that Excel failed to maintain the minimum pillar block size required by its approved RCP during retreat mining at its Mine No. 3. It alleges that the RCP prohibits cutting outby pillar blocks to less than eight feet along each stump face, and that Excel cut the blocks in entries 4, 5, and 6 in the 004 section of the mine to less than those minimums. In addition, it alleges that Excel had a practice of cutting pillar blocks too small, of which this incident was the latest manifestation, and which persisted despite a previous warning. It also alleges that this practice resulted in hazardous roof loading, evidenced by various signs of excess roof weight, including an unaddressed roof fall at entry 3. The citation alleges “high” negligence and characterizes the gravity as S&S and “highly likely” to result in a fatality for one person.

Fact Summary

            MSHA Inspector Silas Adkins (“Inspector Adkins”) traveled to Excel Mining’s No. 3 mine on July 21, 2008, to continue a quarterly E01 inspection. When he arrived, he reviewed the pre-shift/on-shift examination book (Tr. 31:21-32:16), then began his inspection of Mine No. 3, section 004. Billy Stiltner (“Stiltner”), another MSHA inspector, helped Inspector Adkins conduct the inspection. They split up, each taking half the mine area. (Tr. 189:20-190:6) Brady Fouch (“Fouch”) , the mine’s day shift foreman, accompanied Inspector Adkins to inspect entries 4, 5, 6, 7, and 8 on the right side of the 004 section. (Tr. 34:13-35:14; 40:22-42:9; 151:2-153:25; 185:8-15; 189:1-190:21; 249:9-14) Derick Adkins, section foreman on section 004, went to the other side with Stiltner. (Tr. 190:16-191:4; 247:16-248:1; 249:9-14) At the time, miners were retreat mining in section 004. (Tr. 18:16-19:12) Section 004 comprised eight entries, creating seven coal blocks that were being removed. (Tr. 36:1-19; Exhibit G-2A) The citation at issue in this case alleges RCP violations in four of the eight entries - entries 3, 4, 5, and 6. (Exhibit G-1)

            Preparations for retreat mining are made during the advance mining phase in a process called “rooming off.” As retreat mining progresses, coal is cut from the pillars created during advance mining according to a very specific sequence and to dimensions set out in the RCP. The RCP also specifies how many and where breaker timbers are to be set after each cut. (Tr. 18:16-23:23)

            Coal was being extracted by two continuous miner machines, one on each side of the section. (Tr. 18:25-22:21; Exhibit G-2A) The swath of coal extracted by a continuous mining machine is called a “lift” or “cut.” (Tr. 18:25-22:21) According to the RCP, after each lift during retreat mining, miners are required to set eight breaker timbers for roof support at the intersection of the entry and the cross cut. (Tr. 18:25-22:21;165:16-166:9) They are also required to leave blocks at the corners of the pillars, measuring at least eight feet on a side, to provide adequate roof support as retreat mining proceeds. (Tr. 25:1-6) The remaining blocks are the primary means of supporting the roof during pillaring. The breaker timbers provide some additional roof support. (Tr. 202:11-22) Ultimately, it is intended that the roof collapse along a line created by the breaker timbers and the remaining blocks. (Tr. 28:10-29:5)       

            One of the purposes of Inspector Adkins’ inspection was to confirm that breaker timbers had been properly set and to determine whether the required amount of coal had been left in the pillar “stumps” to support the roof as retreat mining continued. (Tr. 42:6-10; 27:6-17)

Entry 4

            When Inspector Adkins arrived at entry 4, breaker timbers had been set, preventing him from moving in any closer to inspect the remaining blocks. He checked from a safe distance to see if the required timbers had been set and to check the integrity of the roof in the area where they would be retreating into next. (Tr. 42:22-43:16) From his vantage point, he concluded that the blocks left at entry 4 were less than eight feet on a side. (Tr. 43:25-44:16)

            The RCP (Exhibit G-5, page 39) required that all blocks measure at least eight feet along each side. (Tr. 23:6-24:18; 225:6-22) The outby block corners appeared to Inspector Adkins to be significantly less that eight feet on a side. He could not confirm this to any greater degree of accuracy because he could not go inby the breaker line for safety reasons. (Tr. 42:13-14; 43:25-44:16) Stiltner made notes about what he observed at entry 4. (Exhibit G-7) They confirm that the block corners at entry 4 were less than eight feet. They also note that he could not see the outby corners of the pillars, and that the last timber was broken in the breaker row. Stiltner noted

this because he considered it a serious situation, and he wanted to document that he was in personal danger as he inspected because of this situation. (Tr. 157:8 -158:6)

            Excel argued that there had been a roof fall at entries 4 and 5, and that it had destroyed the outby blocks at entries 4 and 5. Inspector Adkins did not recall with certainty if there was any evidence of such a roof fall, however even if there had been, the outby block corners were still sufficiently visible to assess their size and integrity. (Tr. 94:10-95:15) Inspector Adkins testified that he saw no evidence of sloughage on the blocks, as claimed by Excel’s witnesses. He observed clean cuts. (Tr. 62:25-64:15) In describing Exhibit G-2A, Inspector Adkins testified that the outby blocks on both sides of entry 4 were too small. He estimated that they were between one and four feet. (Tr. 43:23-44:16)

Entry 5

            Inspector Adkins concluded that the outby blocks in entry 5 were undersized as well. (Tr. 44:20-25) He was approximately 25 feet away from the corner blocks in entry 5 when he observed them with the light from his cap lamp. (Tr. 44:20-45:19; 92:16-94:9; 274:14-18) It was obvious to him, even with these limitations, that they were less than eight feet on a side. (Tr. 53:10-54:1; 91:19-92:11) Inspector Adkins wrote the citation because he concluded that there was less than eight feet of supporting wall left on at least one side of the blocks in entries 4, 5, and, 6. It did not matter to him whether it was one foot or four feet or more as long as it was less than the minimum of eight feet. (Tr. 107:20-109:2)

            As discussed below in greater detail, Excel argued, and its witnesses testified, that if a coal block is not cut on all four sides, it should not be considered a stump. (Tr. 234:15-237:15)

            In contrast, Fouch testified that there was also roof fall material in entry 5. From a distance of 20 - 30 feet (Tr. 219:11-14), he could see the side of the blocks closest to him, but the rest was obliterated. (Tr. 209:23-211:6) He recalled that the remaining blocks appeared to be at least eight feet on a side. (Tr. 211:11-23) He disagreed that the stumps in entries 4 and 5 were between one foot and four feet. (Tr. 220:4-16) Fouch testified that he had no way to even know about the over cutting in entries 4 and 5, since they had been cut the night before and the area had since fallen in. (Tr. 220:25-221:6; 255:7-18) He denied seeing any stress fractures, nor did he remember Inspector Adkins pointing them out. (Tr. 218:6-13)

            Fouch denied admitting to Inspector Adkins that he knew that the blocks in entries 4 and 5 were being cut to less than eight feet. (Tr. 220:17-24) He denied that he apologized for the blocks being over cut. He did not believe that the blocks had been over cut, except for entry No. 6. (Tr. 222:1-15) He did not recall another citation for undersized blocks issued in July 2008. (Tr. 222:16-20)

            Fouch agreed hypothetically that if the blocks at entries 4 and 5 were cut to less than 8 feet, Derick Adkins, the section foreman, should have noted the fact on his imminent danger run and “dangered off” the section and moved away from the area. However, he disagreed with the assumptions underlying the hypothetical. (Tr. 238:8-241:14) Derick Adkins admitted that he might have told Silas Adkins that too much had been cut out, but he claimed that it was in reference to the entry with the bad bottom. (Tr. 283:5-13)

 Entry 6

Figure 1

            Inspector Adkins also found the stumps in the entry 6 inadequate. However, the “push out” cut had not yet been taken from the front face flanking the number 6 entry when he made his observation and wrote the citation. The third cut in the number 6 entry could not leave the eight by eight foot stump required by the RCP. Inspector Adkins concluded that the third cut left only one foot along left side of the block from which the push out cut would have been taken. This would have left one side of the block, if it had been finished by taking the push out, measuring significantly less than eight feet. (Tr. 47:8-48:13; 87:11-16).

            Stiltner also observed the conditions at entry 6. His notes confirm that the stumps in entry 6 were less than eight feet. (Tr. 158:7-14; 161:2-14; 182:1-20) Stiltner chose not to put himself in jeopardy just so he could be more precise in his estimates. If a pillar looked less than eight feet from where he was, he did not go into danger to confirm it. He made his estimate based on the known spacing of roof bolts. (Tr. 160:1-161:2; 175:12-177:18)

            Fouch did not believe that Inspector Adkins could see any of the stump at entry 4, and only part of the stump at entry 5. The stump at entry 6 was the only one he could see. (Tr. 231:2-10) After being shown his own notes however, Fouch conceded that some of the stump at entry 5 was visible. (Tr. 231:11-21)

            According to Fouch, the bottom (floor) was bad at entry 6. No push out cut had been taken from entry 5 (Tr. 213:2-4), and the miner operator had already moved the continuous miner to entry No. 7. (Tr. 213:5-6) Inspector Adkins wanted to talk to miner operator, Mike Estep, (“Estep”) about what happened. Estep explained that he had not taken the last cut, and had moved the miner out of entry 6. The entry 6 area was breakered off and the miner moved to entry 7. Once this was done, there was no way to come back in for the final cut. (Tr. 213:7-214:16)

            The continuous miner tore up the bottom at entry 6, which affected its ability to maneuver. Estep told Derick Adkins that he did not think he was going to be able to leave eight feet in the stump, so Derick Adkins told him to skip the push out cut to the left of entry 6. Estep backed the miner out, timbers were set, and the continuous miner was moved to entry 7. (Tr. 264:15-266:20) Derick Adkins testified that he did not feel any pressure about having to sacrifice coal production. (Tr. 263:7-20); 266:21-267:5)

            From what Fouch saw, it was clear that the miner operator had finished with entry 5 and had moved to entry 7. There was no intent to take any more cuts out of this area because it had been breakered off, and the miner had already started cutting coal in entry 7. (Tr. 214:15-24) This is consistent with Fouch’s opinion that if a miner takes too much off a stump, the foreman should make the decision to back out and move to the next block, abandoning the last cuts. To do otherwise would not be safe. (Tr. 206:14-207:7) It that case, where a cut was abandoned, there could still be a sizeable block of coal - not just a pillar - left to support the roof. (Tr. 207:8-18)

            Nonetheless, Fouch conceded that the miner operator had cut outside the paint lines at entry 6 (Tr. 232:17-233:6) and that there was only one foot of the block wall left on the outby left corner. (Tr. 233:7-234:1) He contended that because they did not take the last cut at entry 6, there was, in reality, no stump at all. What resulted, in his view, was an unmined pillar wall with one side only one foot wide. (Tr. 233:21-234:7) This is consistent with Fouch’s view that a stump is an area where there cuts have been taken on all four sides. If that is the case, he agreed that each side must be eight feet or more. If that is not the case, what remains is a block of coal that has not been completely cut - not a stump. Therefore, the eight foot requirement does not apply.

            Fouch finally agreed that there was at least a technical violation of the RCP because of the one foot section of the wall or stump, regardless of what it is called. (Tr. 234:15-237:15) He also agreed that if the miners were intentionally cutting the stumps to less than eight feet, it would be a serious violation of the RCP. (Tr. 237:16-238:7)

Entry 3

            When Stiltner returned from inspecting his portion of section 004, he conferred with Inspector Adkins and told him that the blocks in entry 3 had been over cut just like those in entries 4, 5, and 6. However, in entry 3, the roof had fallen in, knocked down the breaker timbers (Tr. 50:6-11;170:9-172:24 ), and pushed material past the breaker line out to where men were hauling coal. (Tr. 48:20-49:17; 51:11-25; 154:20-156:4;163:8-164:11)

            Inspector Adkins went to entry 3 to confirm what Stiltner had told him. He found that there had been a roof fall and that no timbers had been set after the fall. According to the RCP, the mine was required to set timbers in such a situation to protect the miners from a bad roof. (Tr. 50:19-51:8) Inspector Adkins considered the roof collapse at entry 3 to be a separate violation of mandatory standard 30 CFR §75.220 (Tr. 119:6-10), and incorporated it into Citation No. 8216265. (Tr. 66:2-67:10) He also testified that, in his mind, there was a connection between the over cutting of the blocks he observed during this inspection (and on a previous occasion) and a roof fall such as that in entry 3. He testified that when a mine removes more coal than allowed in the approved RCP, roof falls - although anticipated and necessary during retreat mining - will involve more material than planned for and will ride out farther than anticipated. (Tr. 51:13-52:23)

            Inspector Adkins, Fouch, Stiltner, and Derick Adkins met back up at entry 3. Inspector Adkins asked Derick Adkins how entry 3 looked. He mentioned only that they had some “top” in entry 3.

            According to Fouch, the roof had fallen in at entry 3 and “rode out” some breaker timbers, making it impossible to go back in the area to remove any more pillars. (Tr. 216:9-21; 228:25-230:7) Because of the roof fall at entry 3, Derick Adkins decided to set up timbers to “breaker” it off. They gave up the remaining cuts and moved the continuous mining machine on to entry 2. (Tr. 215:11-217:4; 249:19-250:4; 254:2-22)

            Derick Adkins contradicted the MSHA inspectors’ version of how bad the roof fall was at entry 3. According to his version, the breaker timbers were rode out but not to the extent recalled by Inspectors Adkins and Stiltner. His recollection was that the breaker timbers had been set flush with the block corners by the third shift the day before, and the corners were still intact. (Tr. 269:15-270:17) However, Derick Adkins also testified that the roof fall at entry 3 had obliterated the timbers so that hardly any of them could be seen. (Tr. 250:13-251:5) He recalled that the breaker timbers inby the breaker line at entry 3 were rode out, and that the roof had shifted. (Tr. 278:8-19) He was also “pretty sure” the breaker timbers in the other line (outby) at entry 3 had not been rode out. (Tr. 278:20-279:2) Finally, Derick Adkins denied that the roof fall at entry 3 was as extensive as reported by Inspector Adkins because he would have heard about it and did not. (Tr. 257:15-258:2) He testified that he would have remembered seeing the roof fall at entry 3 if it had pushed out the timbers to the extent testified to by Inspector Adkins because his crew had just set them that morning. (Tr. 270:18-25)

            Fouch also challenged Inspectors Adkins’ recollection of the extent of the roof fall at entry 3. He did not accept that the roof fall at entry 3 could have taken out a second line of breaker timbers, as claimed by Inspector Adkins. (Figure 2) If it had, it would have been “pretty significant,” and he would have a clearer recollection of it. (Tr. 217:10-25) Fouch made notes about the inspection and his recollection of what he saw. (Exhibit G-6) Curiously, the notes document a roof fall at entry 3 and 5, but not at entry 4. (Tr. 231:22-232:5)

            Fouch and Derick Adkins testified that the roof fall at entry 3 had only gone to the line represented by the cross cut shown near the center of Figure 2, but according to Inspector Adkins, they were off by a line of timbers. Inspector Adkins testified that the roof fall material at entry 3 had come out to the ”X” on Figure 2. (Tr. 292:12-293:6 and Exhibit R-1) He recalled that the roof falls at entry 4 and 5 did not come out as far as the one at entry 3. The blocks in that area were also very visible to Inspector Adkins (Tr. 293:7-20), leaving no doubt about the size of the blocks he observed. (Tr. 293:21-24)

Roof Weight

            Inspector Adkins observed evidence that indicated to him that the roof was “taking weight.” Wooden cap wedges used to secure and drive timbers into place were crushed, and the timbers themselves were pushed into the floor. Some timbers were split from the roof load. He also noted stress fractures in the rock ribs and ceiling running perpendicular to the breaker timbers in entries 4, 5, and 6. (Tr. 56:7-57:18) Inspector Adkins testified that these are indications of extreme weight loads. (Tr. 54:3-24; 56:13-25) Derick Adkins agreed that these weight indicators were present. (Tr. 278:18-288:1) He also testified that his men had detected a crack in

a test hole in the ceiling at entry 3 when they ran their test tape up in it. To him, this is an indication that the roof had shifted and was potentially unsafe. (Tr. 250:25-253:24)

Mining Machine Was Too Big

Figure 2

            Inspector Adkins testified (and his inspection notes confirm) that Fouch told him that he expected the citation because he saw that the blocks did not meet the eight foot minimums. (Tr. 58:16-59:3 and Exhibit G-2, pages 4 and 5) Fouch denied that he told Inspector Adkins that he knew that the blocks in entries No. 4 and 5 were being cut to less than 8 feet. (Tr. 220:17-24) According to Inspector Adkins’ inspection notes and his testimony, Fouch talked with the right side continuous miner operator, Mike Estep, about the over cut blocks. (Tr. 213:7-214:16) Estep admitted that the blocks were not the right size and justified the over cutting because the continuous miner was too big to make a sharp enough turn to leave the eight foot minimums and still swing in to make cuts. (Tr. 59:5-60:19)

            According to Inspector Adkins, Derick Adkins also admitted that the blocks had been cut to less than the minimums because the continuous miner was too big. Derick Adkins’ statements are documented in the inspector’s notes. (Tr. 60:23-61:16 and Exhibit G-2, page 5) However, in his testimony, Derick Adkins denied telling Inspector Adkins that he knew the blocks had been cut too small. He allowed that if he did, he was probably referring to entry 6 where the bottom was broken up, and the miner operator admitted making a mistake. (Tr. 273:3-11) Derick Adkins also denied - albeit not categorically - that he ever told Inspector Adkins that the blocks had been cut too small in entries 4 and 5. (Tr. 273:15-20)

            Excel painted guide marks on the ribs and roof to give the men a reference for the eight foot block requirement. (Tr. 63:6-22; 64:23-65:13; 203:10-25) Inspector Adkins noted that the cut marks made by the continuous miner’s carbide bits were “significant[ly]” outby the paint marks remaining on the roof . In addition, the four-by-four foot roof bolt pattern gave him an indication of where the continuous miner started cutting the stumps. (Tr. 63:23-64:21; 87:2-10)

S & S and Unwarrantable Failure

            Inspector Adkins considered Citation No. 8216265 to be S&S and an unwarrantable failure because, if a proper pre-shift or on-shift examination had been conducted, the violations would have been spotted and abated. (Tr. 96:24-98:19) In addition, Inspector Adkins had issued a citation for the same sort of violation just 11 days earlier. (Tr. 131:2-132:6 and Exhibit G-3) After he issued the earlier citation, he conducted a safety meeting with mine personnel and put them on notice that he would take enhanced enforcement action if he found similar conditions in the future. (Tr. 67:15-69:12; 117:24-118:18; 119:14-120:2)

            Inspector Adkins considers over cutting blocks a very serious hazard. (Tr. 84:19-85:4) Over cutting can expose miners to roof falls because it can shift roof weight onto the section where the miners are working. (Tr. 72:14-24; 121:18-122:6) Inspector Adkins testified that the over cutting (and any steps the operator took to remedy the situation) should have been recorded in the examination book. (Tr. 76:16-17; 128:5-22) Details of the roof fall in entry 3 should have been recorded in the examination book as well. (Tr. 76:20-24) Lastly, the conditions were “very” obvious in Inspector Adkins’ opinion. (Tr. 73:1-17)

            With so many blocks being cut beyond the minimums, with the stress fractures, the broken timbers, and the roof fall in entry number 3, it seemed to Inspector Adkins that a fall was a certainty - it was just a matter of time. The miners whose job it was to place timbers after the continuous miner pulled out were being exposed to unnecessary danger because of the over cutting and the resulting hazards. Shuttle car operators were also exposed to unnecessary danger because they traveled by these entries while hauling coal. For these reasons, Inspector Adkins characterized the violation as “highly likely” that an accident would occur. (Tr. 78:1-79:17; 99:13-101:4; 122:7-123:5) However, he did not deem this to constitute an imminent danger. (Tr. 102:13-15)

Mitigating and Aggravating Circumstances

            Inspector Adkins considered the possibility that moving the continuous miner back a row could be considered a mitigating circumstance, despite the fact that the continuous miner operator (Estep) said nothing about moving the miner because of over cutting. The discussion dealt only with the condition of the bottom and the fact that he could not maneuver the miner. (Tr. 110:25-111:13) Nonetheless, even though the continuous miner was moved because the bottom was bad and not because of compromised roof support, Inspector Adkins treated it as a mitigating circumstance (Tr. 109:19-110:14; 145:6-23)

            Inspector Adkins considered the following to be aggravating circumstances (Tr. 134:13-135:9): He conducted a safety meeting with mine management both after the earlier citation and after this one. This was the second such meeting for the same type violation in 11 days. In the more recent meeting, he covered the same topics as before and reminded mine personnel that this was a repeat violation. He also talked to Derick Adkins and Fouch to confirm that they had conducted safety meetings in the interim. Not only had there been a repeat violation in 11 days, it happened despite similar safety issues being discussed in mine safety meetings. Inspector Adkins testified that despite considering this an aggravating circumstance, he nonetheless considered the interim safety meetings a mitigating factor. (Tr. 131:2-132:6)

            Inspector Adkins was convinced that mine management was aware that blocks were being over cut. The fact that Derick Adkins told the miners to move from entry 6 to entry 7 indicated to Inspector Adkins that Derick Adkins was on site and should have witnessed the violation. Derek Adkins’ shift started in entry 6, but entries 4 and 5 were cut prior to his shift. To Inspector Adkins, this means the cited conditions in entries 4 and 5 were present when Derick Adkins conducted his on-shift examination. (Tr. 74:20-75:4; 138:15-139:6)

Analysis

            There is no dispute that the approved RCP requires eight feet of unmined coal on “the outby and inby corners” of each block. (Exhibit G-5, page 39, Note 12.) What is disputed is: whether Inspector Adkins’ assessment of the size of the stumps at entries 4, 5, and 6 was accurate; whether the roof fall at entry 3 was properly pled and extensive enough to be a distinct violation of the standard; whether the alleged violations involve “high” negligence; whether the inspector’s assessment of gravity is justified; whether there was an unwarrantable failure to comply with 30 C.F.R. § 75.220; and what penalty, if any, is appropriate.

            Assessment of Block Size

            Entry 6

            Terminology is very important to the resolution of this dispute. Throughout the testimony, the parties used the vernacular term “stump,” a term which is not defined, nor to the Court’s knowledge, even used in the RCP. The plan uses the word “block” instead. This is particularly significant with respect to the allegations regarding entry 6.

            Use of the term “stump” conjures an image of a free-standing, rectangular column of coal. The RCP wisely uses the term “block” instead to describe the unmined coal left for roof support, regardless of its shape or size, and regardless of what stage of the process it pertains to. Otherwise, as is apparent in this case, the result can be unnecessary confusion and possible danger to miners resulting from disputes over terminology.

            Excel argues that it did not violate 30 C.F.R. § 75.220 at entry 6 because it did not take the push out cut, and as a result, no stump was created. (See Figure 2, supra.) Therefore, it argues, the dimensions of the corner surfaces is irrelevant. This argument fails when assessed in light of the actual wording of the RCP. During the advance mining phase, headings and crosscuts created the blocks that this citation relates to. When Excel attempted to retreat mine the block at entry 6, it reduced its size to the point where one of the surfaces at the outby corner of entry 6 was less than eight feet. The RCP requires that any block of coal left during the mining process measure at least eight feet on a side, regardless of whether it is during advance or retreat mining, and regardless of whether all four sides of the block are reduced during retreat mining.

            In this instance, there is convincing evidence that the inby block surface on the left side at entry 6 was less than eight feet. The evidence also makes it clear that the violation occurred when Excel’s miners attempted to take the third lift in entry 6. In an apparent attempt to mitigate the situation, Excel did not take the push out cut, they set breaker timbers to barricade off entry 6, and they moved the miner to entry 7. As a result, the RCP was violated despite the fact that no “stump” was created in the process. It avails nothing that, due to the fact that the push out cut was not taken, the other block surface was considerably more than eight feet. The standard does not allow for the excess size of one block wall to somehow compensate for the deficiency of another block wall. I find that the block wall forming the inby surface of the corner at entry 6 was less than eight feet, and I conclude that this violates the RCP and 30 C.F.R. § 75.220.

            Entry 4 and 5

            Although Excel’s witnesses denied that they made any admission to Inspector Adkins that the pillar blocks in entries 4 and 5 had been over cut, the weight of evidence supports a finding that the blocks in those entries had been cut to less than the required minimums. Inspector Adkins documented in his inspection notes (Exhibit G-2, page 4) that Fouch had admitted that the pillar blocks at entries 4, 5, and 6 had been over cut. Fouch denied making such an admission. However, both MSHA inspectors documented the existence of over cut blocks at entries 4, 5, and 6 in their inspection notes, Exhibits G-2 and G-7, respectively. Their written records are very similar and tend to undercut the less-than-consistent testimony of Excel’s witnesses. Excel’s witnesses offered differing and less convincing explanations, e.g., sloughage due to the roof fall in entries 4 and 5; inevitable over cutting due to bad bottom conditions; and unavoidable over cutting due to the size of the continuous miner.

            I find that the pillar blocks in entries 4 and 5 were cut to less than eight feet on a side and conclude that this makes out an independent violation of 30 C.F.R. § 75.220. 

            Roof Fall at Entry 3

            There is conflicting evidence in the record whether there was a significant roof fall in entry 3 that forced material through the array of breaker timbers that had been set on the outby side of the intersection of entry 3 with the crosscut creating all the entries relevant to this case. Excel’s witnesses questioned whether a roof fall had occurred at entry 3 at all, suggesting instead that Inspector Adkins had conflated it with the admitted roof falls in entries 4 and 5. The evidence from inspectors Adkins and Stiltner is more convincing, however. (Tr. 49:10-50:8; 66:19-24; and Exhibits G-1 and G-2) Inspector Adkins noted, and I find, that the roof fall in entry 3 pushed over the timbers that had been placed in entry 3 before the fall, and that after the fall, no replacement timbers had been placed to reestablish the breaker line.

            Inspector Adkins considered this an independent violation of the RCP and 30 C.F.R. § 75.220. (Tr. 50:19-51:8) However, when questioned about which provision in the RCP was violated by this roof fall, he gave no specifics. Further, there is nothing in the Secretary’s pleadings to indicate which provision of the RCP was violated by the roof fall in entry 3. The Respondent also failed to challenge the sufficiency of the allegation of a roof fall in entry 3 as a separate violation. As a result, although the Secretary and Respondent treated the alleged roof fall as a distinct violation of the RCP, and although there is convincing evidence that the roof fall occurred, pushed over a group of breaker timbers, and that no replacement timbers were put in place, I conclude that the entry 3 roof fall is not a distinct violation of the RCP. I decline to infer corrections in the pleadings that could have made it facially clear that MSHA considered the roof fall to be a separate violation of the RCP. I also decline to conclude that by failing to challenge the sufficiency of the Secretary’s pleadings, the Respondent waived its right to contest whether the entry 3 roof fall was a violation of the RCP. This has no bearing on the violation arising from over cutting the blocks at the other entries.

            I do, however, rely on the evidence of the roof fall in entry 3 in the following assessment of the elements of negligence, gravity, S&S, and unwarrantable failure relating to the violation of the RCP arising from over cutting the blocks at entries 4, 5, and 6.

            Negligence

            Section 110(i) of the Mine Act requires that in assessing penalties the Commission must consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(I). Each mandatory standard carries with it an accompanying duty of care to avoid violations of the standard. An operator's failure to satisfy the appropriate duty can lead to a finding of negligence, if a violation of a standard occurs. In this type of case, we look to such considerations as the foreseeability of the miner's conduct, the risks involved, and the operator's supervising, training, and disciplining of its employees to prevent violations of the standard in issue. Southern Ohio Coal Co., 4 FMSHRC at 1463-64. See also Nacco Mining Co., 3 FMSHRC at 848, 850-51 (April 1981) (construing the analogous penalty provision in 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith Stone Company, 5 FMSHRC 13, (January1983).

            Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.” Id. Reckless negligence is when “[t]he operator displayed conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have known of the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id.

            Citation 8216265 (Exhibit G-1) alleges “high” negligence. Table X of 30 C.F.R. §100.3 links an allegation of high negligence with the absence of mitigating circumstances. From the evidence summarized above, I conclude that Excel should have known that the pillar blocks in entries 4, 5, and 6 were cut beyond limits set by the RCP. There is no credible question that the blocks in those entries were less than eight feet on at least one side. Although Excel’s witnesses attempted to cast doubt on Inspector Adkins perception and accuracy, I am convinced that he was able to make a reasonably accurate assessment of the block dimensions.

            As stated above, Inspector Adkins considered the moving of the continuous miner out of the compromised area and foregoing the remaining lifts a mitigating circumstance. He also testified that he viewed the safety meetings in the interim between the two citations for over cutting pillar blocks as evidence of mitigation as well. I am not bound by his perhaps overly generous view of these factors. Nonetheless, I find and conclude that leaving the affected area and giving up the remaining cuts mitigates the negligence element down from “high” to “moderate,” in keeping with the guidance in Table X. I do not consider holding safety meetings in response to the first violation anything more than a minimum response to the violation. The fact that the violative conduct was repeated in less than two weeks time speaks loudly against any consideration of this as an act of mitigation.

            Gravity

            The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is

most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (April 1987). The seriousness of a violation can be examined by looking at the importance of the standard which was violated and the operator's conduct with respect to that standard, in the context of the Mine Act's purpose of limiting violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be made assuming continued normal mining operations without abatement of the violation. Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).

            However, the gravity of a violation and its S&S nature are not the same. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996). The gravity analysis can include the likelihood of an injury, but should focus more on the potential severity of an injury, and the number of miners potentially injured. The analysis should not equate gravity, which is an element that must be assessed in every citation or order, with “significant and substantial,” which is only relevant in the context of enhanced enforcement under Section 104(d). See Quinland Coals Inc., 9 FMSHRC, 1614, 1622, n.1 (September 1987).

            Citation 8216265 (Exhibit G-1) alleges a high likelihood of a fatal injury to at least one miner as a result of this violation. I concur. Over cutting the pillar blocks was not an isolated, one-off incident. Excel was cited twice for the same violation in less than two weeks. Multiple entries were compromised. Although there is evidence that the condition of the bottom might have played a role in at least one of the entries, the evidence of widespread and repeated over cutting is much more compelling. For these reasons, I conclude that there was a reasonable likelihood of a fatal injury to at least one miner, as alleged.

            Significant and Substantial and Unwarrantable Failure

                        It is clear in the Mine Act that since negligence and gravity, which are clearly delineated in 30 C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced enforcement provisions set out in Section 104(d) contemplate something distinct and “more,” when talking about significant and substantial and unwarrantable failure. The Secretary must prove negligence and gravity for all citations and orders and, in order to invoke the enhanced enforcement plan in Section 104(d), must also prove that the circumstances of the violation satisfy both the S&S and unwarrantable failure standards. If the Secretary fails to prove both, there can be no enhanced enforcement. Thus, the Secretary has to prove four distinct elements when the enhancement scheme in Section 104(d) is alleged: (1) negligence; (2) gravity; (3) “significant and substantial;” and (4) “unwarrantable failure.”

            Significant and Substantial

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health Review Commission (“Commission”) explained that:

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 – 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.

Id. at 3-4.

            In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (Aug. 1985), the Commission held:

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.” [ . . .] 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.”

Id. at 1129 (internal citations omitted) (emphasis in original).

            The question of whether a particular violation is significant and substantial must be based on the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to violations of mandatory standards. Cyprus Emerald Res. Corp. v. FMSHRC. 195F.3d42 (D.C. Cir. 1999)

            The evidence of potentially catastrophic roof loading and multiple roof falls beyond the limits set by the breaker lines is important here. It has convincing weight on the issue of potential severity of an injury and supports a finding that a serious injury is at least a reasonable likelihood. In this case there is evidence to support a finding of more than a reasonable likelihood of a significant injury.

            I cannot conclude that Excel’s practice of over cutting pillar blocks caused the signs of increased roof loading summarized above, however I am convinced that, as a minimum, Excel over cut the blocks in an environment of heightened hazard evidenced by stress fractures, crushed top wedges, and visibly cracked breaker timbers. This is evidence of increased likelihood of injury, which is consistent with the authority cited above. I also conclude that practices that compromise the integrity of the mine roof or are permitted to exist in an area of compromised roof integrity are per se of a “reasonably serious nature.” The Secretary has proved the S&S nature of this violation.

            Unwarrantable Failure

            The term “unwarrantable failure” comes from section 104(d) of the Act and, taken together with “significant and substantial,” creates a standard for enhanced enforcement procedures, including withdrawal orders and potential enhanced liability, if a pattern of violations is eventually proved.

            In Emery Mining Corp., 8 FMSHRC 1997 (Dec. 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,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). The Commission has examined various factors in determining whether a violation is unwarrantable, including the extent of a violative condition, the length of time that it has existed, whether the violation is obvious, or poses a high degree of danger, whether the operator has been placed on notice that greater efforts are necessary for compliance, and the operator's efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992). The Commission has also examined the operator's knowledge of the existence of the dangerous condition. e.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug.1994) (affirming unwarrantable failure determination where operator aware of brake malfunction failed to remedy problem); Warren Steen, 14 FMSHRC at 1126-27 (knowledge of hazard and failure to take adequate precautionary measures support unwarrantable determination); see also Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).

            One factor not addressed by the authority cited above is how easy it would be for an operator to avoid the violating practice. There is evidence that the continuous miner used in this situation was too big for the conditions or perhaps not operated with the requisite skill level to avoid over cutting the pillar blocks. Either possibility is fully within the knowledge and control of the operator and is of little value as evidence of mitigation, as suggested by Excel. The fact that the final lifts were not taken and the equipment was moved to the next mining area does tend to weigh against a finding of unwarrantable failure. However, the evidence of aggravating circumstances preponderates.

            Pillar blocks were over cut in three entries; the practice was extensive. The over cutting occurred twice in a short time period, resulting in two citations for the same violation. Inspector Adkins conducted a safety meeting with miners after the first violation to point out the importance of complying with the RCP and to put mine management on notice that further such violations would lead to enhanced enforcement. In addition, mine management conducted additional safety meetings in the interim between the violations during which it is presumed that some emphasis was put on the importance of complying with the RCP and the dangers of over cutting. Despite this, the second violation happened. The violation was obvious enough for anyone within 30 feet to see with a cap lamp. The violation was significant enough to be specifically included in the RCP. I conclude that Excel’s actions constitute a serious lack of reasonable care and were properly characterized as an unwarrantable failure to comply with a mandatory safety regulation.

            Penalty

            Applying the penalty regulations found at 30 C.F.R. § 100.3 and related tables, I conclude that an appropriate penalty for this violation is $6,997.00.

ORDER

            It is ORDERED that Citation No. No. 8216265 be MODIFIED to reduce the negligence assessment from “high” to “moderate.”

            It is further ORDERED that Excel pay a penalty of $6,997.00 within 30 days of this order. Upon receipt of payment, this case will be DISMISSED.

                                                                                    /s/ L. Zane Gill

                                                                                    L. Zane Gill

                                                                                    Administrative Law Judge

Distribution: (CERTIFIED)

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

Matt Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456