<DOC>
[DOCID: f:va200137x.wais]
MINE MANAGEMENT CONSULTANTS, INC.
VA 2001-37
June 11, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
June 11, 2002
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 2001-37
Petitioner : A.C. No. 44-06889-03501 TQI
v. :
:
MINE MANAGEMENT CONSULTANTS, : Four O No. 8 Mine
INC., :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 2001-42
Petitioner : A.C. No. 44-06889-03502 ATQI
v. :
:
TONY M. STANLEY, Employed by :
MINE MANAGEMENT CONSULTANTS, : Four O No. 8 Mine
INC., :
Respondent :
DECISION
Appearances: Karen Barefield, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Dr. Nick E. Brewer, Appalachia, Virginia, (at
hearing), and L. W. Pennell, Special Engineer,
Mine Management Consultants, Inc., Jenkins,
Kentucky, (on brief), for Respondents.
Before: Judge Hodgdon
These consolidated cases are before me on Petitions for
Assessment of Civil Penalty brought by the Secretary of Labor,
acting through her Mine Safety and Health Administration (MSHA),
against Mine Management Consultants, Inc. (MMC), and Tony M.
Stanley, respectively, pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 815 and
820. The petitions allege a violation of the Secretary's
mandatory health and safety standards and seek penalties of
$1,800.00 against the company and $600.00 against Stanley. A
hearing was held in Abingdon, Virginia. For the reasons set
forth below, I dismiss the case against Stanley, and modify the
citation and assess a penalty of $300.00 against MMC.[1]
Background
Mine Management Consultants, Inc., is an engineering firm
in Jenkins, Kentucky.[2] It is licensed to do business in
Kentucky and Virginia. MMC provides engineering services
including surveying, mapping, layout and design, construction,
and obtaining permits for the development of underground and
surface mining for the mining industry. It also provides civil
engineering services in the design of sanitary sewers, water
distribution systems, waste water treatment plants, bridges
and roads. MMC has 22 employees, ten of whom work underground.
MMC began providing surveying and engineering services to
Four O Mining Co., Inc., and its predecessors, in the latter
part of 1997. On June 29, 2000, an MMC survey crew consisting
of Tony Stanley, Benjamin Adams and Larry Mullins arrived at
the Four O No. 8 Mine,[3] located in Wise County, Virginia, to
set spads in the No. 2 Right Crosscut to indicate the direction
of mining for meeting the No. 3 Entry. Stanley was the crew's
supervisor.
After meeting with Mine Foreman Paul Mullins, the crew
entered the mine to perform their work. At that time, the mine
was not producing coal and no Four O employees accompanied the
surveyors. The crew installed the survey points as requested
in about 45 minutes and then left the mine and returned to
their office.
On July 7, 2000, MSHA Inspector Gary W. Jessee went to the
mine to conduct a six month review of the roof control plan.
While conducting this inspection, he observed that survey spads
had been installed inby the last row of roof bolts in the No. 2
crosscut. On measuring the distance from the face to the last
row of roof bolts, he determined that the roof bolts ranged from
five feet, two inches, to six feet from the face. He also
observed that a reflectorized warning device had been installed
on the last row of roof bolts and that loose, wet gob material
had been pushed into the face. The gob material was within four
inches of the roof, at the face, and sloped out from the face
toward the last row of roof bolts.[4] Finally, the inspector
observed indentations in the gob where the survey stations had
been installed.
As a result of these observations, and after interviewing
Paul Mullins and some other miners, Inspector Jessee issued
Citation No. 7305787 to MMC, alleging a violation of section
75.202(b) of the Secretary's rules, 30 C.F.R. � 75.202(b),
because the survey crew under the direction of Tony Stanley had
worked or traveled inby the last row of permanent roof supports
on June 29. A subsequent investigation determined that Tony
Stanley should be personally assessed a civil penalty for the
violation under section 110(c) of the Act, 30 U.S.C.
� 820(c).[5]
Reopening Docket No. VA 2001-42
On December 12, 2001, the Secretary, moved to dismiss the
case against Stanley, Docket No. VA 2001-42, because he had not
filed an Answer to the Secretary's Petition for Civil Penalty.
On December 18, 2001, an Order to Show Cause was issued to the
Respondent, ordering him to file an Answer within 21 days of
the date of the order or to show good cause for his failure to
do so. When no response to the order was received, a Default
Decision was entered on January 17, 2002.
Subsequently, a response to the order was received by the
Commission on January 22, 2002. The Commission treated the
response as a timely filed Petition for Discretionary Review
of the Default Decision and granted the petition. However,
the Commission was unable, based on the record before it, to
determine whether Stanley was entitled to relief. Therefore,
it vacated the default decision and remanded the case to the
judge to determine whether the case should be reopened.
Tony M. Stanley, 24 FMSHRC 144 (February 25, 2002).
At a prehearing conference held before the hearing, the
matter of reopening Docket No. VA 2001-42 was discussed with
Gary Royalty, President of MMC, Stanley and counsel for the
Secretary. After hearing Royalty's and Stanley's explanation of
what had happened, and receiving no objection to reopening by
the Secretary, I determined that the case would be reopened.
(Tr. 6-7.) Since trial was ready to proceed that day, Stanley
obviously did not receive the 20 day written notice of hearing
required by Commission Rule 54, 29 C.F.R. � 2700.54. However,
Stanley stated that he was ready to proceed and waived the 20
day requirement. (Tr. 7-8.)
Accordingly, this decision will concern both Docket Nos.
VA 2001-37 and VA 2001-42.
Findings of Fact and Conclusions of Law
Section 75.202(b) provides that: "No person shall work or
travel under unsupported roof unless in accordance with this
subpart." The parties do not dispute that on July 7, when seen
by Inspector Jessee, the last row of roof bolts was more than
four feet from the face,[6] the survey stations were inby the
last row of bolts, a warning reflector was hung from the last
row of bolts and gob was pushed up into the face. However, MMC
and Stanley claim that on June 29, when the survey points were
installed, the last row of roof bolts was within four feet of
the face, no reflector was present and there was no gob in the
face. I find that a preponderance of the evidence supports
the Secretary's position in this case.
The only witnesses at the hearing who actually saw the
area in question on June 29, were Stanley and Paul Mullins.
Their testimony is diametrically opposed and cannot be
reconciled.
Stanley testified that he was aware that the mine's roof
control plan required that the last row of roof bolts be four
feet from the face (Tr. 42.) He said that he did not see any
warning device at the last row of roof bolts. (Tr. 44-45.) He
related that he did not check to see if the last row of roof
bolts was within four feet of the face, but that Adams did.
(Tr. 45.) He said Adams did not measure the distance, but
that "he estimated it less than 4 feet because that's what we
do everyday, and he told me when he got there. He said, `This
is the last row of bolts.' He said, `It's less than 4 feet.'
He said, `I can set the spad.'" (Id.) Stanley testified that
he was 70 feet away at the time. (Id.) He maintained that
there was no gob in the area. (Tr. 46.) He claimed that when
he set up his transit two and one half feet inby the last row
of bolts, to shoot the second point, his elbow hit the face.
(Tr. 52.) When he left the mine, Stanley stated that he told
the outside man to tell Paul Mullins to be careful, that
"they'd cut that spad out it was so close." (Tr. 55.)
Paul Mullins testified that when they finished working on
June 28, the entry in the 2 Right Crosscut had been cleaned, gob
had been pushed into it and it had been rock dusted. (Tr. 18.)
He said that he could not remember whether a reflector had been
hung at the last row of roof bolts. (Id.) He stated that there
had not been any mining in the 2 Right Crosscut between June 28
and July 7. (Id.) Mullins declared that the reason he knew no
mining had taken place during that time period was that the mine
had been notified of some violations on the belt line and he had
all his miners working on those during that week. (Tr. 158.) He
further testified that the entry had not been bolted within four
feet of the face because they could not get the roof bolter far
enough into the entry to bolt it. (Tr. 28-29, 35.) Finally, he
averred that there was no difference in the entry between when
he saw it on June 28 and when he saw it with Inspector Jessee on
July 7. (Tr. 158.)
To explain the difference between what Stanley claims that
the entry was like on June 29 and what Inspector Jessee observed
on July 7, the Respondents argue in their brief that a little bit
more of the entry was mined after June 29. In addition, they
assert that it would have been impossible to set up a transit on
a tripod in a place where there was only four inches of
clearance.
Turning to these last arguments first, I find that they are
not persuasive. There is no evidence to support the Respondents'
speculation that additional mining of the entry was performed
after June 29. Further, such a hypothesis is plainly refuted
by Paul Mullins' testimony that no such mining took place.
Similarly, the claim that it would have been impossible to set
up the transit in four inches of clearance ignores the evidence.
While it is true that the transit could not have been used in
four inches of clearance, no one claimed that the gob was
uniformly four inches from the roof. Rather the evidence is that
the gob was within four inches of the roof at the face and
sloped downward toward the floor beneath the roof bolts.
This leaves the contradictory testimony of Stanley and Paul
Mullins. In determining who to believe, it must be noted that
not only is Stanley a party to this proceeding, having a
personal stake in its outcome, but he testified that the penalty
at MMC for going under unsupported roof is termination. On the
other hand, Paul Mullins would appear to have no interest in the
case's disposition. He does not work for MMC. At the time he
testified, he did not even work for the Four O Mining Company.
In addition, the No. 8 Mine was not issued a citation for this
violation. Accordingly, I credit Paul Mullins testimony on
this issue.
I find that the entry in the No. 2 Right Crosscut was not
bolted within four feet of the face on June 29, 2000, and that
both Stanley and Adams worked inby the last row of roof bolts to
install the two survey points. Therefore, I conclude that they
worked under unsupported roof in violation of section 75.202(b).
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 (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.
Having already found a violation of a safety standard, it
next must be determined whether there was a measure of danger
to safety contributed to by the violation. In Consolidation
Coal Co., 6 FMSHRC 34 (January 1984), the company contended
that spacing roof bolts farther apart than permitted by the
roof control plan contributed neither to a hazard nor a
reasonable likelihood that such a hazard would result in an
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 roof that was
between one foot, two inches and two feet wider than it was
supposed to be created a measure of danger, i.e. being struck
by a roof fall, to safety or health.
Turning to the third and fourth issues, I find it reasonably
likely that a roof fall would result in a serious injury. Roof
falls are one of the most serious hazards in mining and are among
the leading causes of death in coal mines. Id. at 37 n.4.
Finding that all of the Mathies criteria are met, I conclude
that the violation was "significant and substantial."
Unwarrantable Failure
The inspector also concluded that this violation
resulted from an "unwarrantable failure" to comply with the rule
on the part of the company. The term "unwarrantable failure" is
taken from section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1),
which assigns more severe sanctions for any violation that is
caused by "an unwarrantable failure of [an] operator to comply
with . . . mandatory health or safety standards."
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 inspector testified that he found the violation to
arise from MMC's reckless disregard "based upon what I saw on
July 7 in that area and what I was told having to do with the
people that had operated a roof drill in that area," that is,
that the roof was "softer" in the entry, that a warning device
had been installed and that the gob served as a physical
barrier to going inby the last row of roof bolts. (Tr. 79.)
The facts that emerged at the hearing, however, present a
different picture.
Stanley testified that there was not a warning device in
the entry at the time he was there.[7] Paul Mullins could not
remember whether a warning device was installed on June 29.
Moreover, the inspector was unable to determine who installed
the reflector or when it was installed. (Tr. 102.) Consequently,
I accord MMC the benefit of the doubt on this question and find
that the reflector was not present at the time the surveyors
were installing the spads.
The other two factors cited by the inspector are not
necessarily significant. Whether or not the roof was softer than
elsewhere would be important, as far as unwarrantable failure is
concerned, only if the surveyors knew that the roof was soft and
unsupported and went under it anyway. Likewise, there is no
evidence that gob is only pushed up in entries where the roof is
unsupported. Thus, the fact that the gob was a barrier to going
into the entry did not serve as a warning to the surveyors that
they were going under unsupported roof.
Finally, the surveyors were briefed by Paul Mullins before
they went into the mine. Although he knew that the roof was not
bolted within four feet of the face, he did not warn them that
they might have to place the spads in unsupported roof. (Tr.
32.) The only thing he advised them of was that they might have
to set the spads "short" because he was afraid there was not
enough distance from the center of the entry to the last roof
bolt. (Tr. 159-60.)
Based on the facts available to Stanley and his crew when
they began to work, it is apparent that they neither acted with
reckless disregard of the facts, nor were highly negligent.
They were not warned that the roof was unsupported, either by
Paul Mullins or by a warning device that they knew indicated
unsupported roof. They estimated that the last row of bolts was
within four feet of the face. Their estimate was inaccurate.
But the distance over four feet, from five feet two inches to
six feet, was not so great that their failure to discern it can
be characterized as indifference or a serious lack of reasonable
care.
I find that Stanley should have discovered that the roof
was unsupported, but because he was not informed prior to going
into the mine that the roof was unsupported and because the lack
of a warning device indicated that the roof was supported, his
negligence and the company's was only "moderate." Accordingly,
I conclude that the violation did not occur as the result of the
company's unwarrantable failure to comply with the regulation
and will modify the citation appropriately.
110(c) Violation
The Commission set out the test for determining whether a
corporate agent has acted "knowingly" in Kenny Richardson, 3
FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983), when it stated: "If a person
in a position to protect safety and health fails to act on the
basis of information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the statute."
The Commission has further held, however, that to violate section
110(c), the corporate agent's conduct must be "aggravated," i.e.
it must involve more than ordinary negligence. Wyoming Fuel Co.,
16 FMSHRC 1618, 1630 (August 1994); BethEnergy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992); Emery Mining Corp., 9 FMSHRC
1997, 2003-04 (December 1987).
As has already been discussed in the section on
"unwarrantable failure," I do not find that Stanley's conduct was
aggravated or involved more than ordinary negligence. Therefore,
I cannot conclude that he acted knowingly. Consequently, I will
dismiss the case against him.
Civil Penalty Assessment
The Secretary has proposed a penalty of $1,800.00 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 that the penalty in this case will not adversely
affect MMC's ability to remain in business. (Tr. 9.) The
company's Assessed Violation History Report reveals that it did
not receive any citations in the two years prior to this
violation. (Govt. Ex. 3.) Thus, I find that MMC has an
excellent violation history. I further find that MMC is a small
company. (Govt. Ex. 4.) Finally, since the Secretary did
not present any evidence to the contrary, I find that the
Respondent demonstrated good faith in abating the violation.
Turning to negligence, the parties have stipulated that
Stanley was a supervisor and an agent of MMC at the time of the
violation. (Tr. 10.) As such, his negligence is attributable to
the company. Southern Ohio Coal Co., 4 FMSHRC 1456, 1464 (August
1982); Nacco Mining Co., 3 FMSHRC 848, 850 (April 1981). As
has already been indicated, I find that he was "moderately"
negligent. Hence, I also find that MMC was "moderately"
negligent.
Lastly, on the question of gravity, I find this to be a
serious violation. There are few activities more dangerous in
underground coal mining than working or traveling under
unsupported roof.
Taking all of these criteria into consideration, I assess
a penalty of $300.00 for this violation.
Order
Docket No. VA 2001-42, the civil penalty proceeding
involving Tony M. Stanley, is DISMISSED. With regard to Docket
No. VA 2001-37, Citation No. 7305787 is MODIFIED by reducing the
level of negligence from "reckless disregard" to "moderate," 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, and Mine
Management Consultants, Inc., is ORDERED TO PAY a civil penalty
of $300.00 within 30 days of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (Certified Mail)
Karen M. Barefield, Esq., Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247
Gary Royalty, President, Mine Management Consultants, INC., 9404
State Route 805, Suite B, P.O. Box 33, Jenkins, KY 41537
Tony M. Stanley, P.O. Box 188, Burdine, KY 41517
yi
**FOOTNOTES**
[1]: The Secretary's brief was filed three days late.
The Motion to Accept Brief Filed Out of Time, which accompanied
the brief, indicates that the brief was prepared on time, but
was not filed through clerical error. The Respondents have not
objected to the late filing. Therefore, I grant the motion and
accept the brief.
[2]: At the hearing it was determined that the company's
name is listed incorrectly with MSHA as Mine Management
Consultant, instead of Consultants. (Tr. 37-38.) The caption
has been amended to indicate the correct name.
[3]: A the hearing, the Secretary moved to amend the
caption to show that the mine was the Four O No. 8 Mine,
instead of the Grace No. 2 Mine. (Tr.14.) The caption has
been amended to accomplish this.
[4]: The coal seam in this area was between 44 and 45
inches high.
[5]: Section 110(c) provides, in pertinen part, that:
"Whenever a corporate operator violates a mandatory health or
safety standard . . . any director, officer or agent of
such corporation who knowingly authorized, ordered, or
carried out such violation . . . shall be subject to the same
civil penalties . . . .
[6]: The mine's roof control plan permits a maximum of
four feet between the face and the last row of roof bolts.
(Govt. Ex. 2, pp. 15-18.)
[7]: The inspector did not interview Stanley or any one
else from MMC before issuing the citation. (Tr. 100.)