<DOC>
[DOCID: f:va200120.wais]

 
MINING PROPERTY SPECIALISTS, INC.
VA 2001-20
February 5, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041


                        February 5, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. VA 2001-20
               Petitioner       : A. C. No. 44-01696-03501 4FT
          v.                    :
                                : Mine No. 2
MINING PROPERTY SPECIALISTS,    :
  INC.,                         :
               Respondent       :

                             DECISION

Appearances: Karen Barefield, Esq., Office of the Solicitor,
             U.S. Department of Labor, Arlington, Virginia, for
             Petitioner;
             Harry W. Meador, III, President, Mining & Property
             Specialists, Inc., Big Stone Gap, Virginia, pro se, 
             for Respondent.

Before: Judge Hodgdon

     This case is before me on a Petition for Assessment of 
Civil Penalty brought by the Secretary of Labor, acting through
her Mine Safety and Health Administration (MSHA), against 
Mining Property Specialists, Inc. (MAPS), under section 105 of 
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815. 
The petition alleges a violation of the Secretary's mandatory 
health and safety standards and seeks a penalty of $500.00.  
A hearing was held in Big Stone Gap, Virginia.[1]  For the 
reasons set forth below, I modify the citation and assess a 
penalty of $100.00.

                            Background

     MAPS is an engineering and environmental services firm
located in Big Stone Gap, Virginia.  Among other things, it
provides surveying services for various underground coal mines 
in the area.

     On August 25, 2000, MAPS employees William Johnson, 
transit man, and Chad Huff, rod man, went to the Fork Ridge
No. 2 mine in Wise County, Virginia, to install a survey 
station indicating the direction of an entry. On arriving at 
the mine, the surveyors checked in with mine management and 
then proceeded to the No. 1 entry to install Survey Station 
208. At the time they entered the mine, and while they 
performed their duties, the mine was not producing coal 
because there was a problem with the belt line. It took the 
surveyors 15 to 20 minutes to complete their work.

     As the surveyors were leaving, sometime between 8:00 a.m.
and 8:30 a.m., they encountered MSHA Inspectors Gary Roberts 
and John Godsey, who were arriving to inspect the mine.  The
inspectors went into the mine to conduct their inspection
accompanied by Hagy "Bear" Barnett, the Mine Superintendent.  
For most of the time they were underground, the mine was down.
Mining was resumed sometime between 10:00 a.m. and 11:00 a.m.

     At about 12:00 noon, Inspector Godsey went to inspect the
face in the No. 1 entry. He discerned that the last row of roof
bolts in the entry did not appear to be within five feet of the
face, as required by the mine's roof control plan.  He also
observed that a warning reflector, or streamer, had been placed
on the right hand side of the last row of bolts.  He called
Roberts and Barnett, who were still in the No. 2 entry, to come
and verify what he had seen.

     Although it was not as obvious to him, Roberts agreed that
the last row of bolts appeared to be farther than five feet from
the face.  When Godsey measured the distance, he found that the
last row was six feet, nine inches, from the face on the left
side and six feet, one inch, on the right side.  Roberts and
Barnett both saw the warning reflector on the right side.

     All three observed, after measurement, that Survey Station
208 was 20 inches inby the last row of roof bolts.  From this,
Godsey and Roberts concluded that the surveyors had gone under
unsupported roof.  Consequently, they issued Citation No. 
7305588 to MAPS, under section 104(d)(1) of the Act, 30 U.S.C. 
� 814(d)(1),[2] alleging a violation of section 75.202(b) of
the Secretary's regulations, 30 C.F.R. � 75.202(b), because:

          Based on evidence present in the face of the
          number 1 entry 001-0 active section at survey
          station number 208, survey stations have been
          installed inby the last row of permanent roof
          supports.  William Johnson, Supervisor [,]
          and Chad Huff, surveyor [,] were present at
          the mine site on August 25, 2000.  A
          reflectorized warning device was installed on
          the last row of permanent roof supports.

(Govt. Ex. 1.) Section 75.202(b) provides that: "No person shall
work or travel under unsupported roof unless in accordance with
this subpart."

             Findings of Fact and Conclusions of Law

     MAPS asserts that at the time the surveyors installed the
survey station they were not under unsupported roof.  The
Secretary, of course, argues that they were.  Because of the 
time lapse between the installation of the survey station and 
the inspection of the area, both sides rely on circumstantial
evidence to sustain their positions.  The preponderance of the
evidence, however, supports the Secretary.

     The surveyors testified that when they entered the mine 
they were not advised of any hazardous conditions in the mine.  
They maintained that when they arrived at the face of the No. 
1 entry, they did not observe any warning reflector or streamer.  
Not seeing any warning, and not having been informed of any 
hazardous conditions, and not observing any obviously hazardous 
conditions, they assumed the area was safe and performed their
work.  They both admitted to having been inby the last row of
roof bolts at some time during the installation of the survey
station.

     Based on this testimony, it is the Respondent's position
that at the time the surveyors were working, the last row of 
roof bolts was within five feet of the face and, therefore, the
surveyors were not under unsupported roof.  This theory is
premised on the fact that the roof control plan requires a
warning device at the last row of roof bolts if the area inby
them is hazardous.[3]  Hence, if there was not a warning device
the area inby was not hazardous.

     The company explains the fact that the area inby the last
row measured more than five feet at 12:00 by surmising that some
time between when the surveyors were present and the inspection,
one foot, one inch, to one foot, nine inches, of coal was mined
from the face.  Unfortunately, there is no evidence to support
this argument.

     It is undisputed that no mining was performed, after the
surveyors finished, until sometime between 10:00 a.m. and 11:00
a.m. There is no evidence that anyone observed mining in the No.
1 entry between that time and the inspection.  Barnett testified
that to the "best of [his] knowledge" no mining was done in the
No. 1 entry before the inspection.  (Tr. 73.)

     The Respondent hypothesizes that a small amount of coal may
have been mined to facilitate the mining of the bleeder to the
left of the No. 1 entry.  However, even the Respondent admits
that such a cut, if it were made, would be nine and one quarter
feet deep, not six feet, nine inches.  (Resp. Br. at 13-14.)
Thus, the depth of the entry does not support this theory.
Furthermore, there does not appear to be any reason, from a
mining standpoint, to mine such a small amount of coal.

     While it would have been nice to have evidence from someone
who was actually present in the mine during the time in question,
e.g. the section foreman or the continuous miner operator, the
preponderance of the evidence in this case supports a finding
that there was no change in the No. 1 entry between the
installation of the survey station and the inspection.

     Since the area inby the last row of roof bolts was
unsupported roof both at the time the surveyors were present 
and the time of the inspection, and the surveyors admit that 
they were inby the last row of roof bolts, it follows that 
they worked under unsupported roof.  The Act provides that an 
operator is liable for the violative acts of its employees.  
Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359-60 
(September 1991).  Accordingly, I conclude that MAPS violated
section 75.202(b) as alleged.

                   Significant and Substantial

     The Inspector found this violation to be "significant and
substantial." A "significant and substantial" (S&S) violation 
is described in Section 104(d)(1) of the 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."  A violation is properly designated S&S "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
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S.  See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria).  Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether 
a particular violation is "significant and substantial" must 
be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & 
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).

     In order to prove that a violation is S&S, the Secretary
must establish:  (1) the underlying violation of a safety
standard; (2) a distinct safety hazard, 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 will 
be of a reasonably serious nature.  Mathies, 6 FMSHRC at 3-4.

     MAPS asserts that the violation was not "significant and
substantial" because the area of unsupported roof varied from 
13 inches on one side to 21 inches on the other, the mine was 
noted as having "good top" and the surveyors were only 20 
inches inby the last row of roof bolts.  (Resp. Br. at 17.) 
Therefore, the Respondent argues, the violation does not meet
the second and third Mathies criteria. I find to the contrary.

     In Consolidation Coal Co., 6 FMSHRC 34 (January 1984), the
Respondent made the same type of argument.  In that case, the
company contended that spacing roof bolts farther apart than
permitted in the roof control plan contributed neither to a
hazard nor a reasonable likelihood that such a hazard would
result in injury.  In rejecting this contention, the Commission
held that: "Mine roofs are inherently dangerous and even good
roof can fall without warning."  Id. at 37.  It went on to say
that "despite the generally good conditions and the absence of
reportable injuries in the previous six months, these over-wide
bolts created `a measure of danger to safety or health.'" Id.
at 38.  Similarly, I find that working under unsupported roof
created a measure of danger, i.e. being struck by a roof fall, 
to safety or health.

     Turning to the third element, there is little evidence to
support the Secretary's position.  Inspector Roberts testified 
on this issue as follows:

               It's dangerous to be under unsupported
          roof, especially inby the last row of
          permanent supports, at any time . . .
          [because] the roof is not supported and there
          is a good possibility that you could have a
          roof that's not supported that could fall at
          any given time.

               It's highly likely that unsupported roof
          could fall.  Perhaps, I guess, looking at the
          history of roof falls and being involved with
          roof - I gave a safety talk the other day of
          the fatalities that we've had this year.

               I think almost half of the fatalities of
          people that have been killed with roof falls
          or falling pieces of rock have incurred [sic]
          inby the last row of permanent supports, so
          it's very serious, what we consider no man's
          land.  It's no place to be.

(Tr. 30-31.)  No other evidence was offered by the Secretary on
the issue.

     On the other hand, the company did not offer any evidence 
to rebut the inspector's assertions. The inspector's judgment 
is an important element in an S&S determination.  Harlan 
Cumberland Coal Co., 20 FMSHRC 1275, 1278 (December 1998).  
Therefore, considering the inspector's testimony along with the
understanding that mine roofs are inherently dangerous, I find
that it was reasonably likely that the unsupported roof would
fall and result in an injury.

     I also find that a disabling injury or death would be the
likely result a roof fall.  Accordingly, I conclude that the
violation was "significant and substantial."

                      Unwarrantable Failure

     The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act.  Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987).
"Unwarrantable failure is characterized by such conduct as
`reckless disregard,' `intentional misconduct,' `indifference' 
or a `serious lack of reasonable care.' [Emery] at 2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991)."  Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).

     The Secretary's argument that this violation involved an
unwarrantable failure is based on the theory that Johnson was
"acting in a supervisory role when he went to" the mine.  (Sec.
Br. at 10.)  The evidence, however, does not support this 
theory.

     The Commission has long held that the negligence of a "rank-
and-file" miner cannot be imputed to the operator, in this case
the contractor, for penalty assessment purposes.  Fort Scot
Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995);
Western Fuels-Utah,Inc., 10 FMSHRC 256, 260-61 (March 1988);
Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982)
(SOCCO).  To determine whether such a miner was an agent of the
operator, whose negligence can be imputed to the operator, "the
Commission examines whether the miner was exercising managerial
or supervisory responsibilities at the time the negligent 
conduct occurred.  U.S. Coal, Inc., 17 FMSHRC 1684, 1688 
(October 1995)." Whayne Supply Co., 19 FMSHRC 447, 451 (March 
1997).

     It is the Secretary's position that the following factors
made Johnson a supervisor: (1) He was the transit man; (2) The
inspectors and, perhaps, the mine superintendent thought he was 
a supervisor;[4] (3) He testified that he was responsible for a
project while at the mine site: (3) When the mine superintendent
had a problem he went to the transit man; (4) He told the mine
superintendent who needed hazard training; (5) He marked the 
mine maps, although the maps had to be certified by the company
president; and (6) He directed the activities of the rod man.

     In Whayne Supply, the Commission rejected a similar 
argument by the Secretary as "lacking legal and evidentiary 
support" because "[a]lthough the record evidence indicates 
that [the miner] was a highly experienced repairperson who 
needed little supervision and helped less experienced 
employees, this does not convert him into a supervisor, much 
less a manager." Id. The Commission further found that there
was no evidence that he "exercised any of the traditional 
indicia of supervisory responsibility such as the power to 
hire, discipline, transfer, or evaluate employees.  Nor was 
there any evidence that [the miner] `controlled' the mine or 
a portion thereof; rather he merely carried out routine 
duties involving the repair of Caterpillar machinery." Id.

     Likewise, in this case there is no evidence that Johnson
exercised any of the traditional indicia of supervisory
responsibility.  Indeed, the evidence is that he did not have
such authority, did not think he had such authority and did not
exercise such authority.  The two man crew performed routine
surveying work which was "pretty much the same every time when
you go in." (Tr. 96.) Directing the activities of the rod man,
i.e. telling him where to stand with the rod, and marking the
mine map are part of the normal, routine surveying duties. Such
actions do not make him a supervisor anymore than do the actions
of the continuous miner operator directing the activities of the
miner helper make him a supervisor.

     Further, Johnson did not determine who needed hazard
training, direct him to get it or tell the mine superintendent
who needed hazard training; rather if a new employee was with 
him he "would take them to get their hazard training if they 
didn't know to get it."  (Tr. 97, emphasis added.) In addition, 
Barnett stated: "I know when it's a touchy situation you've got 
to know for sure, you know, Bill [Huff] is usually the one that 
comes to the problem."  (Tr. 79.)  Bill Huff was the person in 
MAPS office who sent the surveyors on their missions.  Thus, 
mine personnel did not go to the transit man for consequential 
problems.

     Consequently, I conclude that Johnson was not a supervisor
whose conduct, if it was aggravated, can be imputed to MAPS.
However, that does not end the inquiry because the Commission 
has further held that: "[W]here a rank-and-file employee has 
violated the Act, the operator's supervision, training and 
disciplining of its employees must be examined to determine 
if the operator has taken reasonable steps to prevent the 
rank-and-file miner's violative conduct."  SOCCO at 1464. 
While this standard is normally applied in determining the 
operator's negligence for penalty purposes, the Commission 
has also confirmed that it applies in determining whether an
operator can be held responsible for an "unwarrantable 
failure."  Whayne Supply at 452-453.

     Nonetheless, the Secretary did not present any evidence
concerning MAPS supervision, training and disciplining of its
employees.  Nor is there sufficient evidence in the record to
make such a determination.  Since the Secretary has failed to
show that the Respondent's supervision, training and discipline
of its employees was deficient, it must be concluded that the
company had taken reasonable steps to prevent the violative
conduct.

     Finally, it is uncontroverted that no MAPS supervisor was
present when the violation was committed.  Cf. Midwest Material
Co., 19 FMSHRC 30, 35 (January 1997).  Accordingly, inasmuch as
neither Johnson's nor Chad Huff's negligence can be imputed to
MAPS and there is no evidence that the company engaged in
aggravated conduct, I conclude that the violation was not the
result of an "unwarrantable failure."  The citation will be
modified appropriately.




                     Civil Penalty Assessment

     The Secretary has proposed a penalty of $500.00 for this
violation. However, it is the judge's independent responsibility
to determine the appropriate amount of penalty in accordance with
the six penalty criteria set out in section 110(i) of the Act, 30
U.S.C. � 820(i).  Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-
84 (April 1996).

     With regard to the penalty criteria, the parties have
stipulated, and I so find, that the penalty will not adversely
affect MAPS' ability to continue in business.  (Tr. 9.)  I also
find that MAPS is a very small company and that, since its
Assessed Violation History Report shows that it had no previous
violations within the two years preceding this violation, it has
an excellent history of previous violations.  (Govt. Exs. 5 and
6.)  I further find that the Respondent demonstrated good faith
in attempting to achieve rapid compliance after notification of
the violation.

     Turning to the question of gravity, I find this to be a
serious violation.  Working or traveling under unsupported roof
is one of the more dangerous activities that can occur in a coal
mine.  On the other hand, as discussed in the section on
"unwarrantable failure" there is no negligence that can be
imputed to the Respondent.

     Therefore, taking all of these criteria into consideration,
I assess a penalty of $100.00.

                              Order

     Citation No. 7305588 is MODIFIED by reducing the level of
negligence from "high" to "none," by deleting the "unwarrantable
failure" designation and by making it a 104(a) citation, 30
U.S.C. � 814(a), instead of a 104(d)(1) citation.  The citation
is AFFIRMED as modified.  Mining  Property Specialists, Inc., is
ORDERED TO PAY a civil penalty of $100.00 within 30 days of the
date of this decision.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution: (Certified Mail)

Karen Barefield, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA  22203

Harry W. Meador, III, President, Mining & Property Specialists,
Inc., 1912 Wildcat Road, Big Stone Gap, VA  24219

nt


**FOOTNOTES**

     [1]: Subsequent to  the  hearing, the Respondent requested
that the September 7, 2001, deposition  of MSHA Inspector John
Godsey  be admitted into evidence. There being no objection by
the  Secretary,  the deposition  is  admitted  into  evidence 
as Respondent's Exhibit D.

     [2]: Section 104(d)1) provides, in pertinent part:

               If,  upon  any  inspection  of a coal or
          other  mine, an authorized representative  of
          the Secretary  finds  that  there  has been a
          violation  of any mandatory health or  safety
          standard, and  if  he  also finds that, while
          the conditions created by  such  violation do
          not cause imminent danger, such violation  is
          of  such  nature  as  could significantly and
          substantially contribute  to  the  cause  and
          effect  of  a  coal  or  other mine safety or
          health hazard, and if he finds such violation
          to be caused by an unwarrantable  failure  of
          such  operator  to comply with such mandatory
          health or safety  standards, he shall include
          such finding in any  citation  given  to  the
          operator under this Act.

     [3]: Barnette  testified  that  although the roof control 
plan only requires the placement of a warning device at the 
last row  of roof bolts if the area inby is more than five  
feet from the  face,  and  thus unsupported, or to indicate
some other hazardous condition, the company customarily places 
such  a device at the  last row whether the condition inby is
hazardous or not.  (Tr. 85-86.)

     [4]: Barnett said: "As far as just ever thinking about  
it, I'd really never give it a thought." (Tr. 78.)