<DOC>
[DOCID: f:va9621y.wais]
EASTERN RIDGE LIME COMPANY, L.P.
June 28, 1999
VA 96-21-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 28, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 96-21-M
Petitioner : A. C. No. 44-00040-05559
v. :
: Eastern Ridge Lime
EASTERN RIDGE LIME COMPANY, L.P., :
Respondent :
DECISION ON REMAND
Before: Judge Weisberger
This matter is before me pursuant to the Commission's
Decision, 21 FMSHRC 416 (April 1999), vacating my Decision on
Remand (20 FMSHRC 758 (July 1998)), on the ground that the
decision did not contain the additional "fact finding and
analysis of the penalties to be assessed." The Commission set
forth the scope of the remand as follows:
On remand, we direct the judge to state whether he
is relying on the failure to provide adequate ground
support as a cause of the accident and as support for
his S&S and penalty determinations and, if so, to
indicate the basis in the record for doing so. We also
remind the judge that he does not have to find that the
violation led to the ground fall which caused a
fatality in order to conclude that the violation was
S&S. See Arch of Kentucky, 20 FMSHRC 1321, 1330 (Dec.
1998).
On April 28, 1999, an order was issued directing the Parties
to file briefs regarding the issues framed by the Commission's
Remand. On May 26, 1999, Respondent filed its brief on remand.
On May 17, 1999, Petitioner filed its brief on remand.
Additionally, on May 27, 1999, Respondent filed a Motion for
Leave to Adduce Additional Evidence, and Petitioner filed an
Opposition to this Motion on June 9, 1999.
1. Respondent's Motion for Leave to Adduce Additional
Evidence.
Respondent alleges that subsequent to the hearing in this
matter the mine at issue was sold by Respondent, and that
subsequent to the sale the mine's records revealed a set of color
photographs of the area of the rock fall after the rock fall. It
is alleged that these photographs are clearer than the
photographs used at the hearing; that they show that conditions
observed by some of the miners and relied on by the undersigned
"are not borne out by the physical evidence;" and that the
photographs show "how the mechanism of the fall was not related
to any condition known to the miners prior to the accident." It
is alleged that Respondent's counsel was not aware of the
existence of the photographs until after the hearing.
Petitioner, in her opposition to Respondent's motion alleges
that on June 13, 1997, Respondent had filed a Motion for Leave to
Adduce Additional Evidence with the Court of Appeals of the
Fourth Circuit seeking to introduce into the record the exact
same photographs that are the subject of the instant motion, and
that the motion was opposed by the Petitioner who set forth,
inter alia, that the photographs are cumulative, and impeaching
in nature. On July 3, 1997, the Fourth Circuit issued an order
denying the Motion.
The Motion before me is, in substance, the same Motion that
had been filed before the Fourth Circuit.[1] Accordingly, the
Fourth Circuit's Order becomes the law of the case, as it relates
to the merits of Respondent's Motion for Leave to Adduce
Additional Evidence. Accordingly, on that basis alone, I must
find that Respondent's Motion be denied.
2. The Failure to Provide Adequate Ground Support Is Not
Being Relied Upon as the Cause of the Accident and as Support for
Significant and Substantial and Penalty Determinations.
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine 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."
30 U.S.C. � 814(d)(l). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the 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 825 (April 1981).
**FOOTNOTES**
[1]:/ In the instant Motion, Respondent alleges that the
color photographs it seeks to introduce were discovered,
subsequent to the hearing, "[d]uring a review of those records"
after they had shipped to Respondent's parent's facilities in
Illinois. In contrast, in the motion that had been filed with
the Fourth Circuit, Respondent described the photographs as
having been found "[d]uring the a routine review of those
record." There is no indication in the order of Fourth Circuit
that its decision denying Respondent's Motion was based, in any
part, upon the fact that the photographs were discovered during a
"routine" review of their records. I thus find that this
difference in the wording of the motions not to be significant or
material.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, 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 in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
I reiterate my earlier findings that Respondent did violate
30 C.F.R. � 57.3360, and that the essence of the violation, i.e.,
failure to provide ground support, contributed to the hazard of
roof fall. I thus find the first two elements set forth in
Mathies, supra, have been met.
The third element set forth in Mathies "requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury." U. S. Steel Mining Company, 6 FMSHRC 1834, 1836 (August
1984). In applying the third element set forth in Mathies,
supra, to the instant case, I specifically do not find that
either of the violations at issue led to the ground fall which
caused a fatality. In the same fashion, although Respondent
failed to provide adequate ground support, I am not relying on
this as a cause of the accident, and as support for the
significant and substantial penalty determinations that I
previously made. My conclusion that the third and fourth
elements set forth in Mathies, supra, have been met, is based on
the record which establishes that there was a reasonable
likelihood that the hazard of a roof fall was contributed to by
the violations. Additionally, the record establishes that there
was a reasonable likelihood that the hazard of a roof fall will
result in an injury of a reasonably serious nature, based upon
the existence of the combination of the following conditions: a
cavity in the roof of 204E heading that extended most of the way
across the face of the 204E hearing, the roof of the 204E heading
was "drummy," there was popping and cracking in the roof of the
204E in December 1993 which indicated that the top was not sound,
the presence of mud seams, the presence of bad top in the 206
heading prior to the July 25, 1994, roof fall in 204E/11S, and
the proximity of the left rib in 11S to the vertical cavity in
204E. Since there was a reasonable likelihood of a roof fall, I
find that even not considering the fatality and serious injuries
which resulted as a consequence of the roof fall herein, I
conclude that since there was a reasonable likelihood of a roof
fall, it is clear that there was a reasonable likelihood that a
roof fall will result in injuries of reasonably serious nature to
exposed miners. For these reasons, I reiterate my finding that
the violation of section 57.5360, supra, was significant and
substantial. Further, the existence of the combination of roof
conditions in the area in issue, as set forth above, is the basis
for the finding that the violation of 30 C.F.R. � 57.3201 was
significant and substantial.
Essentially for the reasons set forth above, I find that the
violations at issue were of a high level of gravity, as they
could have resulted in a fatality or serious injuries to exposed
miners.[2] I thus reiterate my initial findings regarding the
penalties to be assessed.
ORDER
It is ORDERED that Order No. 4289773 and Citation 4389772 be
AFFIRMED as written, and that to the extent, if any, that
Respondent has not paid any penalties for these violations, it
shall, within 30 days of this Decision, pay a total civil penalty
of $85,000.00.
Avram Weisberger
Administrative Law Judge
Distribution:
Robin A. Rosenbluth, Esq., Yoora Kim, Esq., Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail)
Thomas B. Weaver, Esq., Armstrong, Teasdale, Schlafly & Davis,
One Metropolitan Square, Suite 2600, St. Louis, MO 63102
(Certified Mail)
dcp
**FOOTNOTES**
[2]:/ The scope of the Commission's remand does not require
me to reconsider or make additional findings regarding any of the
additional factors set forth in section 110(i) of the Act
regarding the assessment of a penalty. Thus, it is not necessary
to consider Respondent's arguments regarding what it knew or
should have known prior to the accident.