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 9, 2012

DECISION

Before:            Judge Rae

            This case is before me upon a petition for assessment of the civil penalties filed under section 105(d) of the Federal Mine Safety and Health Act of 1977. At issue is Citation No. 8494886, alleging a violation of 30 C.F.R.§75.220(a)(1), which requires a mine operator to develop and follow an approved roof control plan. On October 27, 2011, The Secretary of Labor (“Secretary”) filed a Motion for Summary Decision. On October 28, Highland Mining submitted Respondent’s Motion for Summary Decision and Respondent’s Memorandum of Points and Authorities in Support of Motion for Summary Decision.

            For the reasons set forth below, the Secretary’s Motion for Summary Decision is DENIED. Respondent’s Motion for Summary Decision is GRANTED and this case is DISMISSED.

Statement of the Case

            Citation No. 8494886 was issued on April 7, 2010. This citation alleges that Highland Mining violated the mandatory safety standard encoded in 30 C.F.R. §75.220(a)(1), which provides:

Each mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.

            Citation No. 8494886 alleges that the following condition or practice resulted in the issuance of the Citation:

The Approved Roof Control Plan dated 12/18/2009 is not being followed on the #5 unit (MMU-065). The #7 entry is not bolted to within 5 feet of the face. The last row of bolts if approximately 15 feet from the face. The plan on the bottom of page 10 states the faces will be bolted within 5 feet of the face.

            As stated above, the parties have each filed a Motion for Summary Decision. Pursuant to Commission rules, a party moving for summary decision is entitled to a judgment in its favor if, based upon the record before the court, the record shows (i) that there is no genuine issue as to any material fact; and (ii) that the moving party is entitled to a summary decision as a matter of law. 29 C.F.R. §2700.67.

Facts

            The parties submitted a copy of the roof control plan at issue. Page 10 of the roof control plan is titled “Typical Bolting Sequence and Pattern for Dual Boom Bolters.” This page depicts two maps showing required distances of intersections, as well as the placement of roof bolts. At the bottom of the page, in a smaller font, is the sentence “Dead end places will be bolted to within 5' of the face.”

            The roof control plan also provides a list of 32 numbered items titled “Safety Precautions for Full Bolting Plan.” Item 27 states “Extended cuts greater than 20 feet will be bolted within 48 hours unless a condition such as loss of power, equipment failure or other factors beyond management’s control exist which would prevent the bolting from being completed within the specified time.”

            At the time the citation was issued, the #7 entry was an active face. This entry had been mined approximately 10 hours before the citation was issued. (Resp.’s Motion for Summary Decision Ex. G.) The last row of roof bolts in the #7 entry was approximately fifteen feet from the face of the entry. (Citation No. 8494886; Resp.’s Motion for Summary Decision Ex. D at ¶6.)

Arguments

            The Secretary, in her Motion for Summary Decision, argues that she is entitled to a summary decision as a matter of law because the #7 entry was not bolted within five feet of the face. The Secretary contends that the “intent of the statement in the [roof control] plan is to have any face bolted within five feet of each face to prevent the potential of any weakness to become a hazard.” The Secretary also cites the fact that Highland has received eleven similar citations between June 11, 2007 and January 26, 2010. The Secretary has submitted documentation to show that Highland has not contested seven of these citations, opting instead to pay them without contest.

            In its Response, Highland argues that page 10 of the roof control plan does not apply because the #7 entry was a working face, rather than a dead end face. Highland also contends that there is no evidence that the intent of the statement in the roof control plan was to require roof bolts within five feet of any face. Highland further contends that the citation was prematurely issued, as the roof control plan allows Highland 48 hours after mining an entry to install roof bolts in that entry. (Plan at p. 5, ¶27.) Highland also maintains that it is not precluded from contesting this citation merely because it has not contested allegedly similar citations in the past. These arguments are reiterated in Highland’s Motion for Summary Judgment.

Analysis

            I find that Highland is entitled to summary decision as a matter of law. The unambiguous wording of the roof control plan states that dead end places will be bolted within five feet of the face. Previous Commission cases have used the term ‘dead end places’ to refer to areas where mining has been abandoned. See Green River Coal Co., 10 FMSHRC 1640, 1647 (referencing provision in ventilation plan requiring “all dead-end places shall be ventilated, and when practical, crosscuts will be provided at or near the face of each entry room before the place is abandoned.”) The definition of dead end place as one where mining has been abandoned also fits in with dictionary definitions of the term dead end. See Miriam Webster Dictionary (11^th ed. 2008)(defining “dead end” as “(i) to come to a dead end: TERMINATE; (ii) an end (as of a street) without an exit; (iii) a position, situation, or course of action that leads to nothing further.”) Additionally, if page 10 of the roof control plan is interpreted as requiring roof bolts within five feet of any face, then the requirement on page five does not make sense. The requirement on page five allows Highland 48 hours after mining to install roof bolts in an entry. Under the Secretary’s interpretation, if Highland installed roof bolts within 48 hours after mining an active face, Highland would be in compliance with page five, but would be in violation of page 10.  

            The Secretary does not dispute that the #7 entry was active at the time the citation was issued. Rather, the Secretary contends that Highland is in violation of the purpose of the plan. The Secretary does not point to any section of the roof control plan which requires roof bolts within five feet of an active face. The Secretary also does not provide evidence to show that page 10 of the roof control should be read to require roof bolting within five feet of an active face. The fact that Highland has paid similar citations, rather than contesting them, is not relevant. It is unclear whether the prior citations were in fact similar, as there is no evidence that the previous citations were issued for working faces or dead end faces. Additionally, a paid citation in the past is not an admission to the facts of the instant violation nor does it estopp Highland from contesting this alleged violation.. Considering all of this, I find the Secretary’s argument without merit.

            Additionally, I find that there is no genuine issue of any material fact. Both parties agree that the #7 entry was bolted approximately fifteen feet from the active face. As stated above, the Secretary does not dispute that the #7 entry was active at the time the citation was issued. Since these facts are not disputed, I find that summary decision is appropriate.

Order

            It is ORDERED that the Secretary’s Motion for Summary Decision is DENIED. Respondent’s Motion for Summary Decision is GRANTED and this case is DISMISSED.

                                                                        /s/ Priscilla M. Rae

                                                                        Priscilla M. Rae

                                                                        Administrative Law Judge

Distribution:

William L. Barnwell, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 100 YMCA Drive, Madisonville, KY 42431

Brad Oakley, Esq., Jackson Kelly, PLLC, 175 East Main Street, Lexington, KY 40588

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