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[DOCID: f:k91-187.wais]
DANIEL LEE COAL COMPANY
January 11, 1995
KENT 91-187
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 11, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 91-187
Petitioner : A.C. No. 15-16715-03507
v. :
: No. 2 Mine
DANIEL LEE COAL COMPANY, :
INCORPORATED, :
Respondent :
DECISION
Appearances: Mary Sue Taylor, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner.
Before: Judge Barbour
This civil penalty proceeding arises under section
105(a) of the Federal Mine Safety and Health Act of 1977
(Mine Act). The Secretary of Labor (Secretary), on
behalf of his Mine Safety and Health Administration
(MSHA), petitions for the assessment of a civil penalty
for a violation of mandatory safety standard 30 C.F.R.
� 75.220. The standard requires the operator of an
underground coal mine to adopt and to comply with a roof
control plan approved by MSHA. The Secretary alleges
that on July 11, 1990, Daniel Lee Coal Company (Daniel
Lee) violated the standard at its No 2 Mine, an
underground coal mine located in Letcher County,
Kentucky, when it changed the type of roof bolts used
at its mine without first notifying MSHA.
PROCEDURAL HISTORY
The Secretary's petition for assessment of civil
penalty was received in the Commission's Docket Office on
April 1, 1991. On September 3, 1991, Harold D. Bolling,
the company's chief executive officer, filed an entry of
appearance on behalf of the company. Three days later
Bolling filed a response to the Secretary's petition. In
the response he denied generally the Secretary's
allegations.
On October 17, 1991, the case was erroneously stayed
pending the resolution of a case that was then before the
Commission for decision. The error was not discovered
until after the instant matter had been dismissed. The
Secretary therefore moved to reinstate his petition. On
November 16, 1993, the Commission granted the motion,
reopened the case and remanded the matter to the Chief
Judge. On November 17, 1993, the Chief Judge ordered the
parties to confer and to advise him on or before December
22, 1993, of the results of the conference. The Chief
Judge noted that failure to comply could result in a
default.
Approximately one month later, counsel for the
Secretary filed with the Commission a copy of a cover
letter that was attached to a joint settlement motion.
The letter indicated the parties had agreed to settle the
case. However, nothing further was heard from the parties
and on September 2, 1994, the Chief Judge ordered the
Secretary to show cause why the matter should not be
dismissed for failure to prosecute.
On September 15, 1994, counsel responded that she had
made numerous attempts to get Harold Bolling to return the
settlement motion for filing and that, "[t]he failure to
forward a written settlement in this matter is due to the
dilatory action of the [R]espondent" (Secretary's Response
to Order to Show Cause 2). On September 21, 1994, the
Chief Judge found the response to be adequate and assigned
the case to me.
The matter was scheduled to be heard on October 13,
1994, in Pikeville, Kentucky. The company's copy of the
notice of hearing was mailed to Bolling at his business
address. The return receipt indicates that it was
received on September 26, 1994. The receipt is signed by
Betsy Addington, Bolling's agent. On October 5, 1994, the
company's copy of the notice of hearing site was sent by
facsimile copy, as well as by registered mail, to Bolling
at the same address. The return receipt indicates the
"hard copy" was received by Bolling on October 11, 1994.
Again, Betsy Addington signed for Bolling.
At 8:30 a.m., on October 13, 1994, the matter was
called for hearing in Pikeville. Counsel for the
Secretary entered her appearance. Harold Bolling did not.
At my request, counsel for the Secretary described her
attempts to contact Bolling. Counsel explained that on
September 28, 1994, she had called his office. Counsel
was told that Bolling was "in court," but that he would
return counsel's telephone call that day. He did not.
Counsel stated that she called again on September 29
and was told that Bolling was "in court." She also was
told to telephone Bolling after 4:00 p.m. She did, and
there was no answer (Tr. 11-12).
Counsel explained that on September 30 she spoke
with Bolling's secretary on two occasions. According to
counsel, the secretary was concerned because she had
spoken with my office and understood there was to be a
conference call. (I had tried to arrange such a call
among counsel, Bolling and me that day.) The secretary
told counsel that Bolling was out of the office and
that she expected he would call counsel or me. He did
not (Tr. 12-13).
I recessed the hearing for one half hour and asked
counsel to contact Bolling by telephone to determine his
intentions. In the meantime, I placed a telephone call to
my office to determine if Bolling had attempted to reach
me there. When the hearing resumed, I reported that
Bolling had not attempted to contact me and counsel
reported that Bolling's secretary told her that Bolling
was not in the office and that there was nothing on his
calendar to indicate he intended to attend the hearing.
Counsel stated she made two additional calls during the
recess and was told that Bolling had not arrived at the
office and that no one had any knowledge of his intentions
or his whereabouts (Tr. 14-16).
I expressed consternation at Bolling's failure to
appear or to otherwise contact me or counsel, and the
hearing proceeded as scheduled (Tr. 17-18).
ORDER NO. DATE 30 C.F.R. � PROPOSED PENALTY
3160289 7/11/90 75.220 $400
THE SECRETARY'S WITNESSES AND EVIDENCE
NANCY EDMONDS
Nancy Edmonds is a coal mine inspection supervisor
for MSHA, She is also the custodian of records at the
agency's Paintsville, Kentucky, Subdistrict Office. In
her capacity as records custodian, she identified the
roof control plan in effect at Daniel Lee's No. 2 Mine on
July 3, 1990 and Order No. 3160289, an order issued to
Daniel Lee on July 11, 1990, and signed by MSHA Inspector
Norman Page (Gov. Exh. Nos. 1 and 2; Tr. 22-23).
AFFIDAVIT OF NORMAL PAGE
Counsel explained that Page was unable to appear as a
witness due to a medical emergency involving his son.
Counsel therefore presented Page's affidavit. In the
affidavit, Page stated that on July 11, 1990, when
inspecting the 001 working section of the No. 2 Mine, he
determined the company had changed the roof bolts from 48
inch resin-grouted bolts to 36 inch mechanical bolts. The
36 inch bolts had been used for a distance of approximately
150 feet in the Nos. 1 though 3 entries and in the
connecting crosscuts. The approved roof control plan
sanctioned only the use of 48 inch resin-grouted bolts in
this area.
The roof had surface cracks and water was seeping
through it. The condition of the roof indicated to Page
that the roof might be unstable. Because of the condition
of the roof, Page believed that changing the type of roof
support without first obtaining MSHA's approval was
reasonably likely to result in a serious accident (Gov.
Exh. No. 3).
In addition, because the difference between the two
types of roof bolts was visually obvious, Page believed
mine management would have known that the 36 inch roof
bolts were being used (Gov. Exh. No. 3).
BUSTER STEWART
Buster Stewart is an MSHA roof control specialist.
As such, it is his job to evaluate roofs and to determine
what should be included in MSHA-approved mine roof control
plans (Tr. 27). Stewart confirmed that under the plan
approved for No. 2 Mine, 48 inch resin-grouted roof bolts
were to be used to support the roof in the subject area
(Tr. 29). Stewart explained that when a resin-grouted
roof bolt was inserted in the roof, the resin or glue was
released and spread into the cracks in the roof strata.
The glue helped to hold the roof in place. When resin-
grouted bolts were used in sequence, they were like
having "five or six 2 by 4s ... glued ... all together
... form[ing] a beam across" (Tr. 31). Stewart described
a resin-grouted bolt as "the best roof support" (Tr. 33).
A mechanical roof bolt uses a chuck to secure the
roof. (The bolt functions in a manner similar to a toggle
bolt.) In Stewart's opinion, the problem with mechanical
bolts was that if they were not anchored in firm roof,
they would pull out (Tr. 34-35). The mine has a shale
roof, and Stewart believed that with such a roof it was
difficult to find firm material in which to anchor
mechanical roof bolts (Tr. 51-52).
Stewart testified he had read Page's affidavit.
Stewart stated that when Page described water coming
through the roof it meant to Stewart that there were
interior cracks in the roof (Tr. 38). Resin-grouted
bolts could seal the cracks (Tr. 38-39). With
mechanical bolts a roof fall was possible (Tr. 39-40).
When an operator wants to change the type of roof
bolts, MSHA will first conduct a stratus scope test to
determine the roof's consistency. In addition, MSHA will
conduct a "pull test" to determine the holding power of
the proposed bolts (Tr. 40-41). Because the equipment used
to install mechanical roof bolts is different from that
used to install resin-grouted bolts, Stewart believed a
mine foreman would have known which kind of bolt was
being used (Tr.42). In addition, because the section
foreman makes sure the roof bolting machine operator is
supplied with roof bolts and with glue, the section
foreman also would have been aware of the type of roof
bolts used (Tr. 43, 46-47). Finally, Stewart believed
that it would have taken at least three shifts to roof
bolt the area cited in the order (Tr. 49).
THE VIOLATION
Section 75.220 requires each mine operator to develop
and follow a roof control plan approved by MSHA. Here,
the roof control plan for No. 2 Mine in effect on July 11,
1990, provided for the use in different areas of 36 inch
conventional roof bolts and 48 inch resin-grouted bolts
(Gov. Exh. No. 1 at 4-5). The plan also stated, "MSHA
shall be notified and an investigation made and approval
granted before resin bolting can be discontinued" (Id. at
5). It is the Secretary's contention, as stated in the
order, that 48 inch resin-grouted roof bolts were
required in the cited area. The evidence supports this
assertion and I accept it. It is also the Secretary's
contention that 36 inch mechanical roof bolts were used
without MSHA being notified and without an investigation
being made. The evidence likewise supports this
assertion and I except it. I conclude, therefore, that
Daniel Lee was in fact operating in contravention of its
approved roof control plan and that the violation of
section 75.220 existed as charged.
SIGNIFICANT AND SUBSTANTIAL
The violation was cited in an order of withdrawal
issued pursuant to section 104(d)(1) of the Act, 30 U.S.C.
� 814(d)(1). One of the inspector's findings in issuing
the order was that the violation constituted a significant
and substantial (S&S) contribution to a mine safety hazard.
A four-part test for determining whether a violation is
S&S was enunciated by the Commission in Mathies Coal Co.,
6 FMSHRC 1, 3-4 (January 1984). It is well known and need
not be repeated here.
I have concluded that the violation of section
75.220(a) existed as charged. Moreover, the evidence
easily establishes a discrete safety hazard. As Stewart
persuasively explained, the failure to use 48 inch resin-
grouted roof bolts subjected miners on the 001 section to
the hazard of injury from falling roof. Moreover, given
the laminated shale roof and the water seeping through it,
I accept Stewart's opinion that the mechanical roof bolts
might not hold and that roof falls were reasonably likely.
Such falls are the most common cause of death in the
nation's mines, and I conclude therefore that the
violation properly was designated S&S.
GRAVITY
The concept of gravity involves analysis of both
the potential hazard to miners and the probability of the
hazard occurring. The potential hazard was one of death
or serious injury caused by falling roof. The probability
was high due to the makeup of the roof and the fact that
the roof was leaking water. This was a very serious
violation, and the fact that Daniel Lee took it upon
itself effectively to alter its plan without consulting
MSHA augments the violation's gravity.
UNWARRANTABLE FAILURE AND NEGLIGENCE
In issuing the order, the inspector found that the
violation was caused by the unwarrantable failure of
Daniel Lee to comply. To establish that a violation
resulted from an operator's unwarrantable failure, it must
be proven that the operator engaged in aggravated conduct
that was more than ordinary negligence (Emery Mining
Corp., 9 FMSRHC 1997, 2203-2204 (December 1987)).
I conclude that Daniel Lee's failure to comply with
its plan resulted from more than a failure to exercise the
care required by the circumstances. Stewart detailed the
obvious differences between resin-grouted and mechanical
roof bolts. Steward further described the differences in
the equipment used to install the bolts. An operator is
presumed to know the requirements of the its roof control
plan, which means that Daniel Lee is presumed to have
known which type of roof bolts were required at the
various areas of No. 2 Mine.
Because the differences in the types of roof bolts
and in the equipment used to install them were obvious, I
can only conclude that the mine foreman and/or section
foreman deliberately chose to install the conventional
bolts despite the fact they were prohibited, or that the
foremen were totally oblivious to what was happening on
the 001 section and thus were highly negligent. In
either event, they unwarrantably failed to comply with
the standard by exhibiting more than ordinary negligence.
HISTORY OF PREVIOUS VIOLATIONS
In the 24 months prior to July 11, 1991, Daniel Lee
was cited for 137 violations. For a mine the size of the
No. 2 Mine, this is a large number of prior violations
(Gov. Exh 4). In addition, at my request, counsel
supplemented the record with information regarding the
compliance history of Harold Bolling and Daniel Lee.
Counsel advised me that MSHA regards Bolling as the
controlling entity of five mines: Moriah Branch Coal
Company, No. 1 Surface Mine; Daniel Lee, Mine No. 1;
Daniel Lee, Mine No. 2; Daniel Lee, Mine No. 3 and Daniel
Lee, Surface Mine No. 1. Counsel also stated that the
last payment of a civil penalty was received from Bolling
on May 23, 1991. Further, as of October 24, 1994, MSHA
closed its files on $24,323.26 in uncollected penalties
from these entities(see Letter of October 31, 1994 and
attachments) (When asked whether the Secretary had
brought a collection action against Daniel Lee (and
Bolling), counsel replied, "Not to our knowledge ... .
Unfortunately, he doesn't owe us as much as some other
people" (Tr. 56). Because the Secretary has written off
the uncollected civil penalties, the amount currently due
the Secretary from Daniel Lee is $1,684.28. Id.
Nevertheless, and as explained below, the uncollected
penalties are a most significant assessment consideration.
SIZE OF BUSINESS
Counsel stated the No. 2 Mine, employed approximately
nine persons who worked one shift (Tr. 59; Letter of
October 31, 1994). In addition, it is clear from the
supplemental information supplied by counsel that Bolling
and Daniel Lee operated other mines and that Bolling
controlled or controls another mining company.
ABILITY TO CONTINUE IN BUSINESS
The effect of assessed penalties on the ability of
an operator to continue in business is a matter to be
proven by the operator. Here, of course, there was no
such proof.
When asked whether the company was still in business,
counsel replied, "Not to my knowledge" (Tr. 57). If in
fact Daniel Lee has ceased operation, imposition of a
civil penalty for a past violation may still be
appropriate. Cessation of mining does not mean a company
intends to forego operations at some future time, either
at the same location or at some other location, using
the same or another name (See Steele Branch Mining, 15
FMSHRC 1667, 1701 (August 1993)(ALJ Koutras)). Therefore,
I conclude any penalty assessed will not affect Daniel
Lee's ability to continue in business.
GOOD FAITH ABATEMENT
The violation was abated the following day. This
constituted good faith abatement.
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a penalty of $400. Given
the seriousness of the violation and the more than
ordinary negligence of mine management, as well as the
other civil penalty criteria, this proposal would have
been appropriate had there not been another very
important factor to consider. This factor -- the
operator's compliance record -- mandates the penalty
assessed be substantially more than that proposed.
The Act mandates a civil penalty be assessed for
each violation. The statutory enforcement scheme is
premised upon the assumption that compliance is
encouraged and violations deterred by the payment of
penalties. Payment is the culmination of the citation
and assessment process. Thus, consideration of an
operator's history of previous violations should include
the operator's history of payment. As I have noted
previously, when an operator has a poor payment history
for which the record provides no explanation, I can only
assume it is the result of contempt for the Act and for
the Commission, a contempt that is here mirrored by
Bolling's totally unexplained failure to appear. Bob &
Tom Coal Company, Inc., 16 FMSRHC 1974, 1990 (September
1994); see also May Resources Incorporated, 16 FMSHRC
170 (January 1994) (ALJ Fauver)).
Because of Daniel Lee's and Bolling's abysmal
history in this regard, I will greatly increase the
penalty from the amount I might otherwise have imposed
and assess a civil penalty of $9,000 for the violation
of section 75.200.
Finally, this is the first case in which Bolling
was to have appeared before me, as well as the last in
which similar behavior on his part will not trigger a
disciplinary referral to the Commission (29 C.F.R.
� 2700.80).
David F. Barbour
Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite
B-201, Nashville, TN 37215-2862 (Certified Mail)
Harold B. Bolling, Representative, Daniel Lee Coal
Company, Inc., 135 West Main Street, Whitesburg, KY
41858 (Certified Mail)
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