<DOC>
[DOCID: f:se2000100.wais]
U.S. STEEL MINING COMPANY, LLC
January 10, 2001
SE 2000-100
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 10, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 2000-100
Petitioner : A.C. No. 01-00851-04075
v. :
: Oak Grove Mine
U.S. STEEL MINING COMPANY, LLC, :
Respondent :
DECISION
Appearances: Terry G. Gaither, Conference and Litigation
Representative, U.S. Department of Labor,
Birmingham, Alabama, on behalf of Petitioner;
Anthony F. Jeselnik, Esq., U.S. Steel, Law Department,
Pittsburgh, Pennsylvania, on behalf of Respondent.
Before: Judge Zielinski
This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor against U.S. Steel Mining
Co., L.L.P., pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977 (the "Act"). 30 U.S.C. � 815. The
petition alleges a single violation of the Secretary's mandatory
health and safety standards and proposes a civil penalty of
$55.00. A hearing was held in Hoover, Alabama on October 14,
2000. The parties submitted post-hearing briefs on December 1,
2000, and reply briefs on December 22, 2000. For the reasons set
forth below, I affirm the citation and assess a penalty of
$55.00.
The Evidence -- Findings of Fact
On July 14, 1999, Robert D. Norris, an inspector for the
Secretary's Mine Safety and Health Administration (MSHA),
conducted an inspection of U.S. Steel's Oak Grove Mine. At about
10:30 a.m., he issued Citation No. 7664934, for what he perceived
to be a violation of 30 C.F.R. � 75.206(a)(3)(i), which requires
that roof supports "be installed to within 5 feet of the
uncut face." His observations were described in the citation as
follows:
The 6-east set up section has two faces not bolted
to within 5 feet of the un-cut face. The left side of
the #2 face was cut 5 feet beyond the right side,
making a distance of 10 feet from the last permanent
roof bolts installed to the face. The crosscut turned
from #3 to #2 was cut approximately 5 feet beyond the
right side, making a distance of 7 feet from the last
permanent roof bolt installed to the face. (spelling
and punctuation errors corrected)
The citation was subsequently amended to allege a violation
of 30 C.F.R. � 75.220(a)(1), i.e., that the operator had failed
to follow its approved roof control plan, which mirrored the
essence of the initially cited regulation by specifying in
diagrams that the distance between the centerline of the last row
of permanent roof supports and the face "shall not exceed 5
feet." The diagrams in Respondent's roof control plan depicted a
typical face by use of a straight line at right angles to the
sides of the entry. The distance between that line and the
parallel centerline of the closest row of roof bolts was
designated as "x" and a note specified that the "[d]istance `x'
shall not exceed 5 feet." Neither the diagrams nor the text of
the plan specifically addressed offsets or any other type of
irregularity in a face.
The entries in the mine were 20-24 feet wide and crosscuts
were 20 feet wide. The continuous miner makes a cut
approximately 12 feet wide and, consequently, extends an entry or
crosscut by making a series of cuts generally about 10 feet deep
alternating between the left and right side. Under normal
circumstances, both sides of an entry will be cut to
approximately the same depth, and roof bolts can easily be
installed to within 5 feet of the face. Although there is no
requirement governing the time within which roof bolts must be
installed, promptly bolting to within 5 feet of the face is
consistent with generally accepted mining practice because
allowing roof to go unsupported can result in sagging, making it
more difficult to support. Ventilation problems can also result
because miners cannot enter an unsupported area to extend
ventilation line curtain. In addition, the area cannot be
cleaned.
Occasionally, one side of an entry may not be cut to the
same depth as the other, leaving an irregular or offset face.
Offsets may result from operator error, a breakdown of the
continuous miner, a shift change, or adverse roof conditions.
Offsets should exist only temporarily. The respective sides of
the face should be at least roughly evened out when the miner is
repaired, the subsequent shift begins production or adverse roof
conditions are properly addressed. If roof bolts are installed
while the offset face condition exists, bolts may not be able to
be installed to within five feet of the face. Some roof bolting
machines, including those used by Respondent, cannot enter the
narrower cut of an offset, which prevents bolts from being
installed in the offset or deeper side of the face.
The offset in the #2 entry was created on July 12, 1999.
Roof bolts were installed to within approximately 5 feet of the
face on the right side, but were only within 10 feet of the face
on the left side.[1] The offset in the #3-#2 crosscut was
created on July 13, 1999, when the continuous miner became
inoperable. It was bolted during the evening shift on July 13,
1999. Bolts were installed within approximately 2 feet of the
right side of the face, but were 7 feet from the left side of the
face.[2] Respondent's Exhibit 1 (Exhibit R-1) accurately
depicted the conditions of the faces and roof bolts at the time
the citation was issued, 10:30 a.m., on July 14, 1999.
MSHA's acting field office supervisor, Kenneth Ely,
recognizing that there may be a legitimate reason why a face may
be temporarily offset resulting in bolts not being installed to
within 5 feet, testified that an inspector should attempt to
ascertain the reason for the offset. If the second side of the
cut was not made because a shift ended, for example, it should be
completed when the next shift engaged in production of coal
commences work. If due to a breakdown of the continuous miner,
the cut should be completed when production resumes after the
miner is repaired. If there is no viable excuse for failing to
make the cut to even out the face, and roof bolts, consequently,
are not installed within 5 feet of the deeper side of the face, a
citation should be written for the violation.
Inspector Norris did not undertake a detailed investigation
of the reasons for the offset faces in the areas cited. He did
know, however, that the continuous mining machine had been
inoperable about the time that the crosscut was being made, which
could explain the failure to bolt to within 5 feet of the face at
that location. It would not, however, explain the failure to
even the face in the #2 entry and resultant failure to bolt
within 5 feet of the deeper side of that face. He placed
considerable significance on the fact that there were two offset
faces, which indicated to him that no effort had been made to
even out the faces so that roof bolts could be properly
installed.
Respondent called one witness, Phillip Sumpter. Sumpter had
not been identified as a witness on Respondent's prehearing
report. His testimony was intended to substitute for that of
Carl Harless, the foreman on the day shift on July 13 and 14,
1999, to explain the circumstances surrounding the offset faces.
Harless had been listed as a witness on the prehearing statement,
but had been allowed to take vacation and was not present for the
hearing. Sumpter was allowed to testify over the Secretary's
objection on the condition that the Secretary could use testimony
given by Harless in a previous hearing to impeach Sumpter.[3]
Harless' prior testimony regarding the offset faces was also
admitted as substantive evidence during the Secretary's rebuttal
case.
The record was held open to allow submission of the
parties' respective designations of additional portions of
Harless' testimony deemed necessary to place the admitted
portion in proper context.[4]
Sumpter was a continuous miner coordinator, and he observed
the continuous miner around 1:30 p.m. on July 13, 1999. It had
been backed out of the #3-#2 crosscut into the #3 entry and was
not capable of mining due to a burst water hose and insufficient
hydraulic fluid because of a leak in the packing of a hydraulic
jack. He arranged for the evening shift to install roof bolts
in the unfinished #3-#2 crosscut and for repairs to be made to
the continuous miner. The repairs were completed during the
midnight shift on the 14th and the miner was ready to continue
mining on the day shift of the 14th. By 10:30 a.m., however,
when the citation was written, neither offset condition had been
corrected. Subsequently, the crosscut was cut through and bolted
and a production cut was taken in the #2 entry, thereby abating
the violations. Sumpter believed that the conditions cited by
inspector Norris were not violations of the roof control plan
because bolts had been installed within 5 feet of the shallower
side of the faces. Sumpter believed that the offset in the #3-#2
crosscut was attributable to the breakdown of the continuous
miner. He had no explanation for the existence of the offset in
the #2 entry.[5]
Excerpts from the prior testimony of Carl Harless, the day
shift foreman, indicate that the continuous miner became
inoperable due to leakage of hydraulic fluid around 10:30 a.m. on
July 13, 1999, after mining the #3-#2 crosscut to the offset
condition. It was backed out of the crosscut into the #3 entry,
which is where Sumpter saw it. After Sumpter had left the area,
however, Harless was able to temporarily restore the miner to
operation for the remainder of the shift by adding 40 gallons of
hydraulic fluid. Rather than returning to the #3-#2 crosscut to
even off the face, he directed that cuts be made in the #4 entry.
The reason for doing so was because he could claim no more
production if he evened up the crosscut face, but could if he
mined in the #4 entry. Since he was rated on how much
production, i.e., how many feet of entry he mined, he chose to
get credit for more production, leaving the crosscut face offset.
The Secretary contends that Respondent's approved roof
control plan requires that permanent roof supports be installed
to within 5 feet of the entire width of the face; that there was
no justification for creating or failing to eliminate the offsets
in the #2 entry and the #3-#2 crosscut; and, the failure to
install roof bolts within 5 feet of the sides of the faces in
question constitutes a violation of the roof control plan.
Respondent contends that it cannot be found to have violated
its roof control plan based upon a condition that is not
specifically referred to in the plan. Alternatively, it argues
that bolts were placed as close as possible to the face under the
circumstances and, thus, it should not be found to have violated
the provision.
Conclusions of Law
I conclude that the conditions observed by inspector Norris
violated Respondent's roof control plan. There was no
justification for creation of the offset in entry #2 and no
justification for failing to correct the offset in the #3-#2
crosscut once the continuous miner became temporarily operational
at the end of the day shift on July 13, 1999. Had the offset
faces been eliminated timely, roof bolts could, and likely would,
have been installed within 5 feet of the faces.
The plan's depiction of the 5 foot minimum distance between
the roof bolts and the face is clear and unambiguous. The face,
the exposed surface of the coal deposit in the working place
where mining is proceeding,[6] is depicted by use of a line and
the reference to the required 5 foot minimum distance between the
centerline of the closest row of roof bolts and the face, applies
to each point on that line, i.e., the entire surface or face.
Portions of the face that are further than
5 feet from the centerline of the nearest row of roof bolts are
not in compliance with Respondent's roof control plan. There is
no indication that the diagram was intended to refer only to a
face consisting of a single plane surface, no doubt a rare
occurrence due to the difficulty of precisely controlling the
depth of cuts with a continuous mining machine. The fact that
the plan contains no specific reference to, or depiction of, an
offset or irregular face, or that neither Respondent, nor MSHA,
sought to create an exception in the plan for offsets or other
irregularities, cannot inure to Respondent's benefit.
Respondent's argument, that there is no violation where roof
bolts have been installed as close to the face as possible, is
also unavailing. While it is true that the roof bolting machine
used by Respondent could not enter the relatively narrow offsets,
those conditions were created by Respondent. As found above,
there was no justification for creation of the offset in the #2
entry and there was no justification for maintaining the offset
in the #3-#2 crosscut after the continuous miner was made
temporarily operational at the end of the day shift on July 13,
1999, prior to the installation of roof bolts in the crosscut.
It was, therefore, entirely possible for Respondent to have
eliminated the offsets and bolted to within 5 feet of the faces.
The Appropriate Penalty
Inspector Norris assessed the probability of injury as
"unlikely," the operator's negligence as "moderate" and
determined that the violation was not significant and
substantial. The operator demonstrated good faith in rapidly
abating the violation within the time specified. Accordingly,
the violation was assessed as a single penalty assessment of
$55.00. See, 30 C.F.R. � 100.4. Respondent i a large business
with an apparently unremarkable history of violations. The
proposed penalty would not affect its ability to continue in
business. Having no disagreement with Inspector Norris'
determinations, and upon consideration of the factors in � 110(i)
of the Act, I find that the proposed penalty of $55.00 is
appropriate.
ORDER
Based upon the foregoing, Citation Number 7664934 is
Affirmed and Respondent is Ordered to pay a civil penalty of
$55.00 within 30 days.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Terry G. Gaither, Conference and Litigation Representative, U.S.
Department of Labor, Mine Safety and Health Administration, 135
Gemini Circle, Suite 213, Birmingham, AL 35209 (Certified Mail)
Anthony F. Jeselnik, Esq., U.S. Steel, Law Dept., USX Tower,
Fifteenth Floor, 600 Grant St., Pittsburgh, PA 15219-2749
(Certified Mail)
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**FOOTNOTES**
[1]: The offset in the #2 entry also was not cut to full
height, which also would have prevented the installation of roof
bolts.
[2]: Roof bolts cannot be installed within 2 feet of the
face because they would be torn out by the continuous miner when
it started the next cut.
[3]: Harless had been called to testify on August 23, 2000,
at a hearing in a discrimination case brought under the Act.
Secretary o/b/o McGill v. U.S. Steel Mining Co., L.L.C.,
Commission Docket No. SE 2000-39-DM.
[4]: On October 31, 2000, Respondent designated pages 350-75
of the transcript of Harless' prior testimony as being necessary
to place the previously admitted portions in proper context. On
November 2, 2000, the Secretary counter-designated pages 340-49
and 369-403. While Respondent objected to admission of the
testimony, neither party challenged the propriety of the other's
designations.
[5]: Sumpter had stated at one point in his testimony, in
response to a question about the #2 entry, that the offset was
due to the continuous miner's breakdown. However, that testimony
occurred while he was being questioned about the #3-#2 crosscut
and I find that his testimony was, in fact, in reference to the
#3-#2 crosscut. On cross examination he was specifically asked
about the #2 entry and clearly stated that he had no idea how or
why that offset came into existence.
[6]: See, American Geological Institute, A Dictionary of
Mining, Mineral and Related Terms 198 (2d ed. 1996).