<DOC>
[DOCID: f:se98146.wais]
UNITED STATES MINING COMPANY
March 31, 1999
SE 98-146
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 31, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 98-146
Petitioner : A. C. No. 01-00851-04032 A
v. :
: Oak Grove Mine
MIKE SUMPTER, Employed by :
UNITED STATES MINING COMPANY :
LLC, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 98-147
Petitioner : A. C. No. 01-00851-04033 A
v. :
: Oak Grove Mine
DANNY JOE COOK, Employed by :
UNITED STATES MINING COMPANY :
LLC, :
Respondent :
DECISION
Appearances: Robert A. Cohen, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary; R. Henry Moore, Esq., Buchanan
Ingersoll Professional Corporation, Pittsburgh,
Pennsylvania, for the Respondents.
Before: Judge Weisberger
STATEMENT OF THE CASE
This proceeding is before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor
("Secretary") alleging that Phillip Michael Sumpter and Danny Joe
Cook, agents of United States Steel Mining Company, LLC, ("U.S.
Steel") are each liable under section 110(c) of the Federal
Mine Safety & Health Act of 1977 ("the Act"), for payment of an
individual civil penalty. Pursuant to notice, the cases were
heard in Hoover and Vestavia, Alabama, on January 26-27, 1999,
respectively. On March 15, 1999 the parties filed post hearing
briefs.
1. Introduction
United States Steel operates the Oak Grove Mine, an
underground coal mine. As part of normal mining operations, at
certain locations overcasts are constructed in entries to provide
for efficient air ventilation. In constructing an overcast the
first step is to remove part of the existing roof by drilling
holes in the existing roof and then inserting explosives, and
blasting the roof. After removal of blasted material from the
floor, the resulting new roof is then bolted which allows miners
to work under supported roof while constructing an overcast. In
order to stabilize the roof and protect the bolters during
bolting, an Automatic Temporary Roof Support System ("ATRS") is
raised vertically from the Fletcher Dual Boom Bolter and placed
flush against the roof.
On August 16, 1996, during the day shift, in the North Main
Section, Lawrence Pasquale and Jim Hubard working under the
supervision of J. T. Williams, a production foreman, blasted the
exiting roof. Towards the end of the day shift, prior to the
removal of the blasted material that had fallen on the floor,
Lonnie Daniel, Jr. and Nebitt (Pete) Wright, roof bolters on a
production crew, were told by the foreman, Robert Cunningham, to
bolt the overcast. The ATRS on the bolter was raised to its
maximum extension of 11 feet, but did not reach the top of the
roof. Daniel told Cunningham that the ATRS was not touching the
top and that he, (Daniel) would not bolt if the ATRS was not
touching the top. According to Daniel, Cunningham told him that
he would bolt it himself, and the latter proceeded to bolt the
roof without the ATRS being in contact with the roof. Neither
Cook, the construction foreman, nor Sumpter, the general mine
foreman, were in the area at the time of the blasting of the
roof, and did not have notice or knowledge of the depth of the
blasting. Nor were they present during the bolting of the new
roof.
On August 17, 1996, MSHA Inspector Owneth Leslie Jones
issued Order No. 4478891,[1] a section 104(d)(1) Order, alleging
a violation of 30 C.F.R. � 75.202(b).[2]
The order alleges as follows:
Persons were working beneath unsupported roof where
roof bolting was being performed on the Main North Section.
This occurred one cross cut inby survey point 9+04 in the
cross cut to the right of the number 3 entry where overcast
construction was in progress. The Automatic Temporary Roof
Support System (ATRS) on the company number 43, model number
D-D-O-13-B-C-F, serial number 96310/84042, Fletcher
dual boom roof bolting machine would not engage the roof.
The overcast height was 12 feet and the ATRS at maximum
extension would only reach 11 feet. Supplemental supports
were not being used.
United States Steel did not contest this order and the
parties, in their filed stipulation, agreed that the Secretary
"will not be required to establish the fact of violation, if the
violation was significant and substantial and caused by the
unwarrantable failure of the mine operator, as part of its burden
of proof in this case."
It appears to be the Secretary's position that Sumpter and
Cook are liable under section 110(c) of the Act, for knowingly
violating section 75.202(b), supra, since it was a common
practice at the mine to bolt the roof in situations where the
ATRS, fully extended, was not high enough to be placed flush
against the roof. The Secretary argues that Sumpter and Cook
knew of this common practice, and should have taken steps to
ensure that Cunningham[3] would not bolt under unsupported roof
where the height of the roof exceeded the height of the ATRS
fully extended. In this connection, the Secretary appears to
argue that Sumpter and Cook did not supply extenders, used to
provide extra height to the ATRS, to the section at issue where
the overcast was being constructed.
II. Applicable Law
Section 110(c) of the Act provides that, whenever a
corporate operator violates a mandatory health or safety
standard, a director, officer, or agent of such corporate
operator who knowingly authorized, ordered, or carried such
violation shall be subject to an individual civil penalty. 30
U. S. C. � 820(c). (Emphasis added.)
The proper legal inquiry for determining liability under
section 110(c) is whether the corporate agent knew or had reason
to know of a violative condition. Kenny Richardson, 3 FMSHRC 8,
16 (January 1982) aff'd on other grounds, 689 F.2d 632 (6th Cir.
1998), cert. denied, 461 U.S. 928 (1983). Accord, Freeman United
Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997).
To establish section 110(c) liability, the Secretary must prove
only that an individual knowingly acted, not that the individual
knowingly violated the law. Warren Steen Constr., Inc., 14
FMSHRC 1125, 1131 (July 1992) (citing United States v.
International Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).
An individual acts knowingly where he is "in a position to
protect employee safety and health [and] fails to act on the
basis of information that gives him knowledge or reason to know
of the existence of a violative condition." Kenny Richardson, 3
FMSHRC at 16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary negligence.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).
III. Discussion
A. The Secretary's Evidence
The Secretary relies on the testimony of MSHA Inspector
Oneth Leslie Jones and four roof bolters who worked on the day
shift. In this connection, Jones testified that he interviewed
J. T. Williams,[4] the day shift construction foreman, who told
him that he had known for a month prior to August 16, that the
ATRS as extended has not been reaching the roof. However,
Williams indicated that he did not report this to management.
Jones did not indicate that Williams told him that it was common
practice to bolt in situations where the height of the roof
exceeded the height of the ATRS.
Lawrence Pasquale and Albert J. Rogers, worked together on
the same bolter on the day shift as part of the construction
crew. In general, Pasquale testified that Cook normally told the
crew what to do and ". . . he would talk about how deep he wanted
each hole drilled, and I'd drill them" (sic) (Tr. 103). Pasquale
indicated that generally Cook visited the section during lunch
time once a day and that he (Cook) and Sumpter have been present
during construction of overcasts. Pasquale testified that
approximately 50 percent of the time during construction, the
ATRS did not touch the roof and that on a "number of times" (Tr.
107) he informed Cook of this problem, and his response was
"[g]et the job done as best as you can" (Tr. 106). Pasquale
testified that it was "common practice" to drill holes in the
roof in situations where the ATRS was not in contact with the
roof, that all the roof bolters "done it" (Tr. 116), and that it
was "common knowledge" that he would be required to drill in this
situation (Tr. 116).
I do not place much weight on Pasquale's testimony for the
reasons that follow. Even if it be found that Pasquale was
credible regarding his version of his conversations with Cook, I
find that it can not be reasonably inferred from Cook's statement
to "get the job done" when advised that the ATRS did not reach
the roof, as either condoning or authorizing bolting to be
performed in that situation. The plain meaning of Cook's words
do not preclude an inference that his intention was to
communicate to Pasquale to use some means to raise the height of
the bolter, by ramping[5] or the use of jacks. Also, not much
weight is accorded his testimony that all the bolters drilled
holes in situations where the ATRS did not reach the roof, and
that this was a "common practice," as little foundation was
provided for these conclusionary statements.
Further, the record indicates that although Pasquale handled
miners' grievances against U.S. Steel when he worked as a miner
at U.S. Steel, he did not complain to management,[6] or MSHA,
that he was asked to bolt in situations where the ATRS was not in
contact with the roof. Hence, the credibility of his testimony
is somewhat diminished.
Rogers testified that Cook usually gave him his work
assignments. According to Rogers, he and Pasquale had informed
Cook that the ATRS was not in contact with the roof, and in
response Cook said that he wanted the job done and did not care
how. The weight to be accorded Rogers' testimony regarding
Cook's actions and responses is diminished by considering that a
certain degree of animus existed between Rogers and Cook. In
this connection, Rogers indicated that he did not get along with
Cook, and that Cook had previously suspended him and tried to
fire him based upon his (Rogers') refusal to work beyond the
usual quitting time. Also, the record contains some
inconsistency between Rogers' testimony at the trial, and
testimony he had previously given in a deposition (Tr. 202,
204-211). Hence, not much weight is accorded his testimony due
to the principle of falsus in uno, falsus in onnibus.
Terry McGill and Wayne Carl Pippen worked together bolting
as
part of a production crew on the day shift. McGill testified
that one time a couple of months prior to August 1996, Sumpter
had seen him bolt in a situation where there was an 8 to 10 inch
gap between the ATRS and the roof.
Pippen testified that, in general, he got along with Cook.
Pippen, indicated that often the ATRS did not reach the roof, and
he had to bolt anyway. He did not indicate why he had to do it,
and whether anybody in management ordered him to bolt, or had
condoned it. Pippen testified that on a number of occasions, he
saw other bolters bolt in situations where the ATRS was below the
level of the roof. Not much weight is accorded this statement in
the absence of particulars as to when this occurred, in what
circumstances, and the identity of the miners involved. Pippen
also indicated that the roof bolters talked among themselves
about this problem, and it was a concern of everybody and not
just the bolters. Due to the lack of specific details not much
weight is accord this general statement.
Pippen indicated that on one occasion the ATRS did not reach
the roof and it fell off. According to Pippen, Cook was in the
area when "we" bolted, and the bolting continued until Cook said
to move off. In contrast to the testimony of Pippen, Cook
testified that, regarding this incident, after the extension on
the bolter broke, there was no further bolting. I observed the
demeanor of the witnesses and, based upon their demeanor, I found
Cook to be the more credible and reliable.
B. Further Findings and Conclusions of Law
The evidence adduced by the Secretary fails to establish
that
either Sumpter or Cook had actual knowledge of the specific
violative condition herein cited by the inspector i.e., the
bolting by Cunningham on August 16, under unsupported roof in
violation of section 75.202(b), supra. Neither Cook nor Sumpter
were present when this act was performed. Further, as explained
by Sumpter and Cook, Cook was not Cunningham's supervisor, and
Cunningham, not Cook, was responsible for the removal of the
material after blasting, and the subsequent bolting of the
overcast.
Additionally, in contrast to the testimony of the
Secretary's witnesses, U. S. Steel's miner witnesses denied that
there was any common practice to bolt in situations where
the ATRS was not in contact with the roof. In this connection,
Larry Neil McCarty, who supervised a crew that bolted overcasts,
indicated that it was normal practice that if the ATRS did not
reach the roof, the bolter was placed on top of the material
that had fallen on the floor in order to allow it to reach
the roof. He stated specifically that it was not common
practice to bolt with the ATRS not up against the roof.
Further, any inference that it was a common practice and
common knowledge that bolting in an overcast was performed in
situations where the ATRS did not touch the roof, is negated
to a great degree by the testimony of Lonnie
Daniel, Jr., a roof bolter who worked under the direction of
Cunningham on August 16, 1996. According to Daniel's
uncontradicted and unimpeached testimony, when he was told by
Cunningham to bolt the overcast after it became apparent that the
ATRS did not reach to the roof, he (Daniel) and Nebitt Wright,
the other bolter on the machine, refused to bolt, and Cunningham
indicated that he would do the bolting himself, which he did.
Daniel also indicated that he never bolted with the ATRS not
against the roof. He also stated that, prior to August 16, 1996,
Cunningham had never bolted, in his presence, in a situation
where the ATRS was not against the roof.
Based on all the above, I find that in normal mining
operations it was a common occurrence, due to roof conditions,
for the ATRS, as fully extended, not to be flush against the
roof. However, as discussed above, the Secretary's evidence
falls short of establishing that bolting in situations where ATRS
was not in contact with the roof was such a prevalent practice in
the mine that Cook and Sumpter should reasonably have been aware
that, following this practice, Cunningham would bolt under
unsupported roof on August 16, 1996. It is not contested that
the height of the roof in an overcast varied due to the
variations in the height of the coal seam and the rock layer
above. There is no evidence that either Sumpter or Cook should
have reasonably been aware that on August 16, 1996, that the
distance between the floor and the roof after it had been blasted
would exceed the height of the ATRS as fully extended, i.e. 11
feet. In this connection, there is no evidence that either Cook
or Sumpter knew or should reasonably have been expected to know
the depth of the holes drilled in the original roof in order to
insert blasting devices to create the overcast. Further, most
importantly, the Secretary has failed to adduce sufficient
evidence to establish that either Sumpter or Cook should
reasonably have been aware that Cunningham would bolt under
unsupported roof on August 16, which is the violative condition
cited. There is no evidence that Cunningham had ever bolted or
ordered another miner to bolt under unsupported roof. No binding
authority has been cited by Petitioner which requires the
imposition of section 110(c) liability upon agents for acts that
violate a regulatory standard, but which have not been
established to have been of a nature that should have reasonably
been anticipated. Hence, for all these reasons, I find that
neither Sumpter nor Cook knowingly authorized, ordered, or
carried out the violation cited in the order at issue.
Specifically, it has not been established that there were any
extant conditions that provided them with knowledge or reason to
know of the existence of the violative act, i.e. bolting on
August 16, under unsupported roof. Accordingly, I find that the
Secretary has not established that either Sumpter or Cook
knowingly authorized, ordered, or carried out the violation cited
in the order at issue. Thus, I find that it has not been
established that either Cook or Sumpter violated section 110(c)
of the Act.
ORDER
It is ORDERED that the Petitions for Assessment of Civil
Penalty filed against Cook and Sumpter be DISMISSED, and that
Docket Nos. SE 98-146 and SE 98-147 be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, One Oxford Centre,
301 Grant Street, 20th Floor, Pittsburgh, PA 15219 (Certified
Mail)
/dcp
***FOOTNOTES***
[1] The parties stipulated that "there was no direct
connection between the roof fall fatality which occurred on the
Main North on August 16 1996, at the Oak Grove Mine, and the
issuance of section 104(d)(1) Order No. 4478891."
[2] Section 75.202(b) provides that "[n]o persons shall
work or travel under unsupported roof unless in accordance with
this subpart."
[3] The Secretary had also filed a section 110(c)
proceeding against Cunningham. Cunningham subsequently paid the
full penalty assessed against him and the proceeding was
dismissed.
[4] J. T. Williams died between the date Jones interviewed
him, and the date of the hearing.
[5] Ramping is performed by not removing from the floor
materials that fall from the roof upon blasting, and then riding
the bolter up on the material so as to increase the height
between the roof and the floor and allow the ATRS to reach the
roof.
[6] The only evidence that Pasquale had communicated to
management a complaint or information regarding this practice
consists of his testimony that he had informed a Union Safety
Committee member, Morris Ivy, who brought the matter to
management. According to Pasquale, Ivy told him that management
said that it would cost too much. Not much weight was placed
upon this heresay testimony. Ivy did not testify on behalf of
the Secretary, and no reason was offered to excuse his not
testifying. Further, the record does not contain any
corroborating evidence regarding the details of Ivy's
communication to management, the persons to whom Ivy made this
communication, and the specific details of management's response
to Ivy. The only evidence possibly related to this issue
consists of Sumpter's testimony, that at meeting he attended, Ivy
did not raise this issue, and that the only discussion concerning
costs pertained to replacement of bolters with improved side
protection.