FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

June 22, 2012

DECISION

Appearances:  Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee, for Petitioner,

Melanie J. Kilpatrick, Esq., Rajkovick, Williams, Kilpatrick, and True, PLLC, Lexington, Kentucky, for Respondent.

Before:            Judge Weisberger

Statement of the Case

            This case is before me based upon a petition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), alleging that Leeco, Inc. (“Leeco”) violated 30 C.F.R. § 75.220 (a)(1), which requires, in essence, that an operator comply with its approved roof control plan.

            Subsequent to notice, the case was heard in Richmond, Kentucky on February 28 and 29, 2012. On April 27, 2012, the Secretary filed Proposed Findings of Fact, Brief and Argument, and Leeco filed a Post-Hearing Brief. On May 9, 2012, Leeco filed a Response Brief.

Introduction

            On September 4, 2007, a roof fall occurred in the transition zone between a crosscut and the adjacent No. 5 entry in the 001 section of Leeco’s underground coal mine (Mine No. 68). MSHA was notified of the fall, and sent Randall Lewis, an MSHA inspector, to the site. He arrived at the mine at approximately 8:00 a.m. He conducted an investigation that day, and interviewed miner witnesses. Based on the investigation, he determined that sometime during the third shift, Kenneth Bryant, a roof bolter operator, was struck by a roof fall while operating a continuous miner down a crosscut between entry No. 4 and entry No. 5, in order to turn the corner from the crosscut to head inby down entry No. 5. Bryant was injured by the fall.

            Based on the investigation, Lewis issued a citation alleging a significant and substantial violation of Section 75.220(a)(1), supra.

I.         Violation of Section 75.220(a)(1), supra

            On September 4, the applicable roof control plan (“the Plan”) allowed for the cutting of a “corner clip” 5 feet by 5 feet in the corner of a pillar between a crosscut and the adjoining entry. The parties stipulated that Leeco violated its roof control plan, when a corner clip was taken which was larger than 5 feet by 5 feet. (Government Exhibit 2 (“Gov. Ex.”), page 19). Based on this stipulation and the record before me, I find that on September 4, 2007, Leeco violated p. 19 of the plan, and hence was not in compliance with Section 75.220(a)(1) supra. Accordingly, I conclude that it has been established that Leeco violated Section 75.220(a)(1) supra, as alleged in the citation at issue.

II.        Significant and substantial

            A.        The Secretary’s witnesses

            Lewis indicated that he observed the area of the roof fall. He measured the adjacent crosscut, which ran between entries No. 4 and No. 5, as 18 feet 5 inches wide. Lewis also measured the corner clip at issue as 11 feet 10 inches, by 7 feet 9 inches. According to Lewis, if a corner clip is too large, it exposes additional unsupported roof, and thus creates a hazard of a roof fall.

            Lewis indicated the corner clip that had been taken left a brow. According to Lewis, the brow extended throughout the entire area of the corner clip. Lewis testified that he measured the brow which had fallen on Bryant. He indicated that it was 21 feet in length; its maximum width was 66 inches; and its maximum thickness was 12 inches. Lewis opined that the violation was significant and substantial.

            James Vadnal a registered professional engineer, who has served as a roof control specialist in the MSHA office in Arlington, Virginia, was proffered as the Secretary’s expert. He testified that a “corner clip” is a cut taken from a coal pillar to allow passage of equipment around the corner. He confirmed that too large a corner clip “exposes a larger area of unsupported roof.” (Tr. 101). Vadnal indicated that the roof control plan provides for 20 foot wide entries, and a corner clip 5 feet by 5 feet, which creates an intersection of 570 square feet. (Gov. Ex. 8A) In contrast, utilizing measurements taken by Leeco of the actual clip cut taken on September 4, the area of the intersection created was approximately 580 square feet. He opined that the respective areas of the intersections created were “comparable” in size (Tr. 113).

            According to Vadnal, a corner clip, 5 feet by 5 feet, as provided in the plan, creates an unsupported area of roof of 10.82 square feet. In contrast, the corner clip actually taken, 11 feet 10 inches by 7 feet 9 inches created an unsupported area of roof of 39.69 square feet, which was approximately 366% larger than the permitted corner clip in the plan. (Gov. Exs. 9, 9A).

            Vadnal opined that the roof fell because the operator made a corner clip with “. . . an exceptionally large area. . .” [a]nd as a result, that area fell and injured the miner.” (Tr. 125). According to Vadnal, had Leeco followed the plan and taken only a 5 foot by 5 foot cut, the area of the clip would have been “much smaller” (Tr. 125), and the roof would not have fallen.

            B.        Case Law

            A “significant and substantial” violation is described in section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated significant and substantial “if based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981.)

            In Mathies Coal Co., the Commission explained its interpretation of the term “significant and substantial” as follows:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – 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.

6 FMSHRC 1, 3-4 (Jan. 1984).

            In United States Steel Mining Company, Inc., the Commission stated further as follows:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable

likelihood that the hazard contributed to will result in an event in which there is an injury.”

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984).

            Applying the factors set forth in Mathies, supra and U.S. Steel, supra, I find it has been established that Leeco did violate a mandatory standard i.e., Section 75.220(a)(1) supra. Also, as explained by Vadnal, the area of the corner clip actually taken by Leeco was approximately 366% larger than the area that would have been exposed had the cut been limited to the dimensions provided for in the plan, i.e., 5 feet by 5 feet. As such, I find, that due to the larger size of clip cut actually taken, the violative condition, to some degree, contributed to the hazard of a roof fall. Further, it is clear, based on the record, that should a roof fall have occurred, it could have resulted in serious injuries. Hence the sole issue for resolution relating to significant and substantial, is the third element of Mathies. In this connection, the Secretary has the burden of establishing that as a consequence of the violative condition there was a reasonable likelihood of an injury producing event, i.e. a rockfall. (U.S. Steel, supra). For the reasons that follow, I find that the record fails to establish this critical element.

            C.        The Secretary’s Position

            The Secretary’s initial argument is that since the plan was violated and the roof did fall, there is a presumption that the fall was due to the violation of the plan.

            The Secretary next argues that even without the benefit of this presumption, the evidence establishes that the violation of the plan caused the rockfall at issue. In this connection, the Secretary cites the following: (1) the clip actually taken contributed to a roof fall, (2) the area of the clip as it was taken was approximately 366% larger than that permitted by the plan, and (3) the resulting unsupported area was three times more than what was permitted under the plan.

            D.        Discussion

                        1.         The opinion of the inspector

            I take cognizance of the opinion of Lewis, which the Secretary relies upon, that the violation was significant and substantial, because “[t]he roof fell. The Plan was violated and there was an injury.” (Tr. 51).

            I do not accord much weight to his opinion, as it was not rendered within the framework of Mathies, supra, i.e., which requires the Secretary, in order to prevail, to establish the third element in Mathies, supra i.e., whether there was a reasonable likelihood of an injury producing event. In this connection, it is significant to note that Lewis failed to address this critical issue. (See, U.S. Steel, supra.)

                        2.         Whether the excessive clip cut contributed to a reasonable likelihood of a rockfall.

                                    a.         Vadnal’s testimony

            According to Vadnal, the area of the clip that was actually taken was 366% larger than the 5 by 5 cut allowed in the plan and that “a larger area is more susceptible to fall when it is not supported.” (Tr. 120). Vadnal explained the basis for his calculations as follows:

Q.Mr. Vadnal, you have in front of you what has been marked as Government Exhibit 9 for Identification. Could you tell us what that is, please.

A.This is a comparison of the corner clip of the plan on the left to the actual size of the corner clip and the actual way the corner clip was cut on the right, and it’s comparing the size of the two triangles. The first one being 5' x 5' on each leg of the triangle and 120 degree angle, which would have been the angle of the intersection between the crosscut and the entry gives you results in an area of 10.82 square fee.

On the right the 11.83 number is 11 feet 10 inches turned into a digital format. The 7.9 feet is 7 foot 9 inches turned into a digital format.

The Court:Wait, I don’t see 7.9.

The Witness:Excuse me 7.75 feet is 7 feet 9 inches.

The Court: Okay.

The Witness:And we turn it into a digital format to accommodate calculators and computers. The area of that triangle with a 120 degree angle is 39.69 square feet, which is 366 percent larger than what was allowed in the plan.

The Court:Okay. What is 366 percent?

The Witness: The actual triangle is 366 percent larger than what is prescribed by the plan.

The Court:You mean area of the triangle?

The Witness:Correct, the square footage.

The Court:Of the area of the triangle?

The Witness:Correct

The Court:Okay.

By Mr. Luckett:

Q.And what would the triangle that you are referring to be?

A.That is the triangle formed by cutting the corner clip the way it actually was cut.

Q.And what was the square footage of the actual cut?

A.The actual cut was 39.69 square feet.

(Tr. 119–120)

            I find Vadnal’s explanation, as quoted above, to be lacking in clarity and sufficient specificity as to be relied upon.

            In subsequent testimony, Vadnal compared the likelihood of a rockfall as a result of the 5 foot by 5 foot clip cut allowed for in the plan versus the larger clip actually taken as follows:

Q.And what was the square footage of the actual cut?

A.The actual cut was 39.69 square feet.

Q.And does that create a problem?

A.It is a violation of the plan, and it is a larger area.

Q.And is there any hazard created by the larger area?

A.A larger area is more susceptible to fall when it is not supported.

* * *

Q.If the plan had been followed in the size of the corner clip, do you believe that the roof would have fallen?

A.No.

Q.Why?

A.Because it is much smaller.

The Court:By it you mean . . .

The Witness:The area of the corner clip is much smaller.

Q.And why would that make it less likely to fall?

A.There’s less of a distance between roof support fixtures is the best explanation. It’s a wider span.

The Court:A wider span in the cut as taken?

The Witness:Yes.

(Tr. 120, 125–126)

            In this connection, it is significant to note the following testimony of Vadnal on cross-examination regarding his knowledge of the specific area of unsupported roof that he took into account in comparing the relative hazard of the cut actually taken compared to the 5 by 5 foot cut required by the plan:

Q.On the right under the actual representation, most of that area was bolted at the time that the transition zone was cut, do you agree?

A.I don’t know.

Q.Okay. Wouldn’t that information be important in determining the amount of unsupported roof in this area?

A.Yes, it would be important. What I know is from Mr. Lewis’ earlier testimony that the entry up into the intersection and the crosscut up into the intersection had been bolted. The corner clip and some additional area toward the face had not been bolted.

Q.Okay. So you did not factor in what actual roof support was present in any of your analyses?

A.Yes, I did.

Q.Okay. Well, can you show then in the actual picture that you have made what portion of that was supported by roof bolts?

The Court:Don’t write anything yet, sir.

Q.So in other words, if I wanted you to show on my copy of Government Exhibit 8 what of this orange area was supported at the time that the transition zone was cut, could you show me that?

A.That went into my calculations or that was earlier testified to.

Q.I thought you just told me that you did take into account in your calculations that there was some roof support in the intersection?

A.Excuse me.

Q.I know this is hard.

A.No, no, no. What the purpose of this illustration is, is not to the show the area that was not supported. (sic.)

(Tr. 138-139)

              I find that the cross-examination of Vadnal highlights the lack of clarity in his testimony regarding the specific dimensions and location of the unsupported roof that he took into account in concluding that the larger cut taken made it more susceptible to falls. I thus find that the cross-examination has diluted the effectiveness of Vadnal’s direct testimony. It is significant to note that his testimony in these regards was not rehabilitated as there was not any redirect examination. Hence I do not accord much weight to his direct testimony.

            Moreover, according to Vadnal, the corner clip actually cut created an intersection of 580 square feet, whereas a cut taken pursuant to the plan would have created an intersection of 570 square feet. Significantly, he noted that these two areas are “comparable” (Tr. 103). This recognition by Vandal of the lack of a significant increase in the area of the intersection created by the actual clip taken, tends to minimize, to some degree, the likelihood of a rockfall as a consequence of the violative cut.

                                    b.         Lewis’ testimony

            Lewis, indicated that on September 4, 2007, after the accident, the area where the brow fell “has [not] been supported” (Tr. 47).

            He placed diagonal markings in blue on Gov. Ex. 4 to indicate the area that was bolted according to the plan. However, he agreed, on cross-examination that when Leeco mined the 4-5 break (crosscut) into the No 5 entry, it was already bolted all the way to the inby end of the intersection. He also agreed that when Leeco mined the “transition zone the 4 right break that cut into the No. 5 entry was already bolted all the way through to the intersection of the No. 5 entry” (Tr. 57).

            I find that his testimony does not establish the exact dimensions of unsupported versus supported roof in the area in question.

                                    c.         Respondent’s witnesses

                                                1.         Jacob Lumpkins

            According to Lumpkins, the section foreman for the third shift, when he arrived at the area on September 4, before the clip cut was taken, a portion of both entry No. 5, and the 4 right crosscut had already been and cut bolted. He also indicated that the bolter (Bryant) had installed two new bolts 4 feet from the new inby rib of the crosscut resulting from the clip cut.

 Considerable weight was given to his testimony inasmuch as he was the only witness who had personal knowledge of the extent of bolted roof prior to the cut at issue.

                                                2.         David Newman

            Newman, who has a Ph.D. in Mining Engineering, testified as Respondent’s expert witness. His testimony regarding the relationship between the area of excessive cut actually taken and the amount of unsupported roof allowed in the Roof Control Plan (“the Plan”) can be summarized as follows: (1) The Plan allowed a cut of 20' wide and 44' long (Tr. 266); (2) The area of this cut was 880 square feet, which is permitted by the Plan to be mined and then bolted (Tr. 266); (3) The area of the excessive cut actually taken was 35 square feet when it was being bolted (Tr. 269); (4) The 35 square foot area is 4% of the 880 square feet permitted by the Plan (Tr. 270); and (5) . . .

So the roof bolt operator was bolting a relatively small portion of that cut and was bolting from a previously bolted area surrounding that cut on the side from which he was approaching it, was operating in that situation where the pillar was larger, and therefore more stable than that provided by the roof control plan, was operating in an entry and then crosscut narrower than provided by the roof control plan, hence, more stable.

And so at the time he was in that area bolting the clip, the conditions provided by Leeco were better than those that they would be required to have under the roof control plan.

The Court:Just generally, just getting to the bottom line, and that’s based upon a number of things that you’ve indicated, I assume, the actual width being narrower than committed in the entry and the crosscut, the fact that some number of bolts were installed at a point where they weren’t required to be installed resulting in a larger pillar and less roof exposed because it had already been bolted, is that your main point?

The Witness:That is correct, yes.

(Tr. 270, 271)

            It is significant to note that the above assertions were not impeached or contradicted by the Secretary. Accordingly, they are accorded considerable weight. Thus, I find that the facts referred to by Newman and his conclusion based on those facts, tend, to some degree, to minimize the likelihood of a rockfall when considering the area of the excessive cut.

            Thus, within the above context, I find that the Secretary has failed to establish, by a preponderance of clear and convincing evidence, that there was a reasonable likelihood of a roof fall. Accordingly, I find that the third element in Mathies supra has not been met. Thus, I conclude that the Secretary has not established that the violation was significant and substantial.

III.       Penalty

            The amount of penalty to be assessed by a Commission Judge for the violation found herein, is based upon the factors set forth in Section 110(i) of the Federal Mine Safety and Health Act of 1977 (“the Act”).

            A.        Gravity

            In contrast to an evaluation of significant and substantial, the evaluation of the gravity of the violation is not dependent upon the likelihood of the occurrence of an injury producing event. Rather, gravity is based solely upon an analysis of the severity of particular hazard involved. The identified hazard herein is a rockfall. It is clear that in the event of a rockfall serious injuries including fatal injuries could result. As a consequence, even though I previously found that a rockfall was not reasonably likely to have occurred, I conclude that the gravity of the violation was relatively high should a rockfall occur.

            B.        Negligence

            The Secretary argues, based on the testimony of Lewis, that the clip taken, which exceeded the requirements of the roof control plan, was obvious in that Lumpkins should have seen that the violation occurred. On the other hand, I note Lumpkins’ testimony that he was not present when the continuous miner took the cut at issue; that he was in the No. 2 entry at the time. I observed Lumpkins’ demeanor, and found him a credible witness. Furthermore, this testimony was not impeached on cross-examination, nor was it rebutted. Accordingly, I assign it considerable weight.

            Moreover, there is not any evidence that Jim Walter was negligent in the taking of the excessive cut which is the gravamen of the Plan’s requirement to take only a 5 foot by 5 foot cut. There is no indication that any other management official had knowledge, prior to the rockfall that a cut in violation of the roof control plan had taken place. Nor is there evidence of prior excessive clip cuts. There is not any evidence that MSHA had placed Jim Walter under notice that stricter attention to the requirements of the Plan was required. I thus find the negligence to be less than moderate.

            C.        History of previous violations

            There is not anything in the record to indicate that the history of violations is other than average for an operation the size of the operation at issue. Thus, I find that the history of violations does not have any impact either positive or negative on the level of the penalty.

            D.        The size of the operator’s business

            The parties stipulated that the mine produced 790,000 tons of coal in 2007, and approximately 715,000 in 2010. The record does not establish whether, as a consequence of this level of production, the mine should be classified as small, medium, or large. Accordingly, this factor does not have an impact on the level of penalty either positive or negative.

            E.        The effect of the penalty on the operator’s ability to continue in the business

            There was not any evidence adduced by Leeco that the penalty would have a significant impact on its ability to continue in business. Hence, there is no basis to conclude that the penalty to be assessed should be mitigated by this factor.

            F.        Good faith to achieve rapid compliance after notification of the violation

            The parties stipulated that the Respondent demonstrated good faith in terminating the citation.

            G.        Conclusion

            Taking into account all the factors set forth in Section 110(i) of the Act, as discussed above, I find that although the level of gravity was relatively high, the level of negligence was less than that initially found by the Secretary in proposing a penalty. Considering the good faith of the operator, the neutral effect of the remaining factors set forth in Section 110(i) of the Act, and placing significant weight on the lower level of Leeco’s negligence as contrasted with that initially found by the Secretary, I find that a penalty of $10,000.00 is appropriate.

ORDER

            It is ordered that Leeco, within thirty (30) days of this decision, shall pay a civil penalty of $10,000.00 for the violation found herein.

                                                                        /s/ Avram Weisberger

                                                                         Avram Weisberger                                                                                                                             

                                                                        Administrative Law Judge

Distribution: (Certified Mail)

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219

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

/cmj