FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

April 25, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

            In this proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Administrative Law Judge Jerold Feldman concluded that Ernest Matney (“Matney”) was not personally liable under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), for failing to conduct an adequate preshift examination in violation of 30 C.F.R. § 75.360(a)(1) and failing to protect personnel from roof and/or rib falls in violation of 30 C.F.R. § 75.202(a). 31 FMSHRC 1422, 1424, 1438 (Dec. 2009) (ALJ). The Commission granted the Secretary of Labor’s petition for discretionary review challenging the judge’s decision. For the reasons that follow, we vacate the judge’s decision, reverse his conclusion that Matney is not liable under section 110(c) of the Mine Act, and remand for assessment of a penalty.

I.

Factual and Procedural Background

            Knox Creek Coal Corporation (“Knox Creek”) operates the Tiller No. 1 Mine, an underground coal mine in Tazewell County, Virginia. 31 FMSHRC at 1425. At the time of the hearing, the mine operated two production shifts and one maintenance shift in three sections. K.C. Post-Hearing Br. at 3; Tr. 260-61. The area at issue in this proceeding is the 005 MMU, also referred to as the No. 3 section. 31 FMSHRC at 1425. The area consists of the No. 3 and the No. 4 entries, and the crosscut between these entries in the general vicinity of the area located inby survey stations 8050 to 8045. Id.; G. Ex. 7 (attached to the judge’s decision and attached to this decision as Appendix 1 (“App. 1”)). In this area, Knox Creek utilized the room and pillar method of mining. 31 FMSHRC at 1425. The relevant provisions of the roof control plan limited the entry widths to 20 feet. Id. Roof bolts were required: four across between the ribs, on four-foot centers. Id. Each roof bolt is driven into the roof through a six-inch, washer-like bearing plate that compresses a larger 10 to 12 inch “pizza pan” plate that supports the draw rock in the surrounding area of the bolt. Id.

            Knox Creek originally mined the area in the vicinity of survey stations 8045 and 8050 approximately three to four months prior to the November 7, 2006, inspection at issue. Id. When this area was initially mined, there was a rock fall in the No. 3 entry just outby survey station 8045 that required the area to be dangered-off with two rows of cribs. Id.; see App. 1. After this area was mined and rock dusted, it remained idle for several months until November 2006, when battery chargers for scoops were moved into the area in preparation for further development inby. Id.

            On Sunday evening, November 5, and/or Monday morning, November 6, 2006, two scoop battery chargers were placed in the section, one in the No. 3 entry and the other in the crosscut outby the 8050 survey station. Id. at 1426. The scoops operating from these battery chargers are approximately 10 feet wide and 25 feet long. Id. The scoop and charging station in the No. 3 entry were designated as No. 1, and the scoop and charging station in the crosscut were designated as No. 2. Id.; see App. 1.

            After the battery chargers were placed in the No. 3 entry and crosscut, at least four preshift and onshift examinations of the section were conducted during the relevant time period. 31 FMSHRC at 1426. Ernest Matney, the maintenance shift section foreman, conducted an onshift and preshift examination beginning at 4:13 a.m. on Monday, November 6. Id. Christopher Stiltner, the day shift section foreman, conducted an onshift and preshift examination during the November 6 day shift following Matney’s maintenance shift. Id.; Tr. 277. Charles Riordan, the evening or second production shift section foreman, conducted an onshift and preshift examination on the evening of November 6. Id.; Tr. 221. Finally, in the early morning hours of November 7, Matney conducted his November 7 combined onshift and preshift examination that began at 4:15 a.m., which he completed 36 minutes later at 4:51 a.m. Id. at 1426-27. None of the preshift or onshift examinations noted any hazardous roof conditions. Id. at 1427.

            During his November 7 preshift examination, Matney checked eight headers. Id. After returning to his crew at the continuous miner, Matney traveled down to the power center, then to the belt drive (located in a parallel crosscut, two crosscuts over from the crosscut at issue), and ultimately to the No. 1 charger in the No. 3 entry, where he initialed the date board at 4:39 a.m. Id.; Tr. 464-65. Matney stated that he observed the intersection in the vicinity of survey station 8045 from the back of the No. 1 scoop that was parked next to the No. 1 charger. 31 FMSHRC at 1427. However, he did not walk through the intersection in the vicinity of survey station 8045, or to the rock fall area. Id.

            The date board at the No. 1 charger was approximately 45 feet away from the survey station at 8045. Id. Matney did not note sloughage and compacted material in the intersection of the crosscut and No. 3 entry observed by Mine Safety and Health Administration (“MSHA”) Inspector Donald Phillips during his inspection several hours later. Id.; see App. 1, Area “C.” Day shift foreman Stiltner testified that his crew did not take scoop No. 1 off the charger in the No. 3 entry before Phillips inspected the area during the morning of November 7. 31 FMSHRC at 1427. Consequently, the judge found that the compacted material on the mine floor immediately underneath the corner of the right rib likely existed prior to Matney’s November 7 preshift examination, as it had likely been caused by contact with the No. 1 scoop. Id.

            After signing the date board in the No. 3 entry, Matney traveled down a crosscut parallel to the crosscut where the No. 2 scoop was located. Id. Matney traveled to the belt drive, walked the track entry located in the No. 4 entry, and used a mantrip to travel down to the crosscut to the vicinity of the No. 2 battery charger. Id.; Tr. 467-68. Matney signed the date board located in the crosscut inby survey station 8050 at 4:40 a.m., reflecting that the date board was signed just one minute after the date board in the No. 3 entry was signed. 31 FMSHRC at 1427; see App. 1, Area “E.” Matney testified that he observed the intersection at survey station 8045 from the date board at the No. 2 battery charger. Id. at 1427-28. The No. 2 scoop was not parked next to the charger during Matney’s preshift examination. Id. at 1428. Rather, it was located near the disabled continuous miner in the intersection at survey station 8630. Id.

            Similar to his inspection of the roof conditions with his cap light from the first date board in the No. 3 entry, Matney testified that he relied on his cap light to view the 8045 intersection from the second date board located in the crosscut. Id. The only reference to roof conditions in Matney’s written November 7 preshift examination report was the remark “top shaggy.” Id.; G. Ex. 10-10. Matney testified that he did not observe any of the adverse roof conditions that were subsequently observed by Inspector Phillips five hours later at 10:00 a.m. 31 FMSHRC at 1428.

            On November 7, Inspector Phillips conducted a quarterly inspection of the mine and found numerous hazardous roof conditions in the No. 3 section, including: (1) two sheared roof bolts, one in the crosscut inby the intersection of the crosscut and the No. 3 entry and the second above the No. 2 scoop battery charger in the crosscut inby survey station 8050; (2) roof cracks containing rock dust and loose roof material near survey stations 8045 and 8050; (3) three areas of rib sloughage, extending the distance from the ribs to the first row of bolts beyond the plan’s permissible limit of 48 inches; and (4) dislodged timbers in one of the cribs used to danger off the area where a rock fall had occurred in the No. 3 entry outby the intersection of the crosscut. Id. at 1428-31. Phillips found that none of the hazardous conditions was recorded in any of the four preshift examination reports immediately preceding the inspection. Id. at 1426-28.

            Inspector Phillips issued Citation No. 7317341 for failure to conduct an adequate preshift examination in violation of 30 C.F.R. § 75.360(a)(1). 31 FMSHRC at 1423; G. Ex. 3. Inspector Phillips also issued an order for failure to protect personnel from roof and/or rib falls in violation  of 30 C.F.R. § 75.202(a). 31 FMSHRC at 1423; G. Ex. 4. Pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), Phillips designated both violations as “significant and substantial” (“S&S”) and attributable to Knox Creek’s “unwarrantable failure.” 31 FMSHRC at 1431. After a special investigation, MSHA found Maintenance-Shift Foreman Ernest Matney to be personally liable under section 110(c) of the Act for both violations, and proposed a total civil penalty of $2,700 against him. Id. at 1423.

            Knox Creek conceded that both violations occurred and that both were S&S. Id. However, it contested the unwarrantable failure designations. Id. at 1424. Matney contested his personal liability under section 110(c).

            In his decision, the judge affirmed the unwarrantable failure designations for both violations. Id. at 1432-34. The judge found that “[i]t is clear that virtually all of the elements of an unwarrantable failure are manifest in this case.” Id. at 1432. Regarding duration, the judge concluded that, due to the fact that the severed shaft of the roof bolt was covered with rock dust, the sheared roof bolts occurred when the area was initially mined during the summer of 2006, and thus had existed for approximately four months. Id. at 1433. As to the sloughed material located along the corner of the right rib inby the intersection of the crosscut in the No. 3 entry, the judge found that it had existed for more than one shift because the No. 1 scoop remained on the battery charger during the shift preceding Matney’s maintenance shift. Id.

            The judge also determined that the roof conditions were “readily apparent” in a “heavily traveled area.” Id. In considering the degree of danger posed by the roof conditions, the judge relied in particular on the high degree of danger created by one of the sheared roof bolts located at the intersection of entry No. 3 with the crosscut, adjacent to an area that was dangered-off by two rows of cribs because of a prior rock fall. Id. The judge reasoned that the location of this sheared bolt alone justified an unwarrantable failure finding. Id. The judge also found that Knox Creek had been put on notice that greater compliance efforts were necessary given that the operator was cited only one week before Phillips’ inspection for inadequate preshift examinations. Id. The judge concluded that “[t]he long standing nature of these readily apparent hazardous roof conditions, that were repeatedly overlooked during the numerous onshift and preshift examinations preceding Phillips’ inspection provide an adequate basis for concluding that the roof condition and preshift examination violations . . . are attributable to Knox Creek’s unwarrantable failure.” Id. at 1434.

            The judge additionally concluded that Matney was not personally liable under section 110(c). Id. at 1424. The judge again noted that the collective failures of all of the preshift examiners to perform adequate exams provided a sufficient basis for an unwarrantable failure determination. Id. at 1436. He found that while Matney’s conduct individually evidenced a “high degree of negligence,” it did not amount to a “‘knowing’ violation,” and thus Matney was not personally liable under section 110(c). Id. at 1437. He also rejected the Secretary’s argument that Matney engaged in intentional misconduct by “deliberately fail[ing] to note a hazardous roof condition that was known to him, or, that should have been known to him, during his preshift examination.” 31 FMSHRC at 1424. The judge declined to draw an inference from the evidence that the area of the sheared roof bolt at the No. 3 entry had previously been cribbed, but then intentionally dismantled or accidentally knocked down and not replaced in order to allow access by the scoops to the chargers placed in that area the day before Phillips’ inspection. Id. at 1424, 1436-38.

            The Secretary sought and the Commission granted review of the judge’s finding that Matney is not personally liable under section 110(c). The operator did not seek review of the judge’s conclusion that there had been an unwarrantable failure to comply with relevant standards. 

Disposition

            The Secretary argues that the judge erred in disposing of the case against Matney based on his finding that no intentional misconduct had occurred, thereby failing to give adequate consideration to whether Matney’s undisputed, repeated failures to note or remedy numerous hazardous roof conditions otherwise established section 110(c) liability. She argues that the judge applied the wrong legal standard by requiring the Secretary to prove that Matney willfully violated the cited standard. She also maintains that the judge failed to provide an adequate explanation for his conclusion that Matney was not liable under section 110(c). She also contends that the judge mischaracterized Matney’s testimony regarding the placement of the loose cribs, which undermined his finding of no intentional misconduct. The Secretary urges the Commission to vacate the judge’s section 110(c) determination and to remand the case to him for further consideration.

            Matney responds that the judge did not rely solely on an “intentional misconduct” test nor find it a prerequisite for section 110(c) liability. In particular, Matney argues that while the judge noted that Matney’s preshift examination was inadequate and highly negligent, the judge concluded that the foreman’s actions did not rise to the level of aggravated conduct. Matney also argues that the judge did not err by failing to explicitly account for his two preshift examinations because the record does not establish that all of the violative conditions cited by the inspector were present at the time of the first examination on November 6. Matney also contends that whether or not the judge mischaracterized his testimony regarding the placement of the loose cribs, the judge’s conclusion that Matney was not liable under section 110(c) must be affirmed.

            Section 110(c) of the Mine Act states: “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 . . . civil penalties.” 30 U.S.C. § 820(c).

            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 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), 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 that an individual knew or had reason to know of the violative condition, not that the individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).

            A knowing violation thus occurs when an individual “in a position to protect employee 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.” Kenny Richardson, 3 FMSHRC at 16. The Commission has explained that “‘[a] person has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence.’” Id. (citation omitted). In addition, section 110(c) liability is generally predicated on aggravated conduct constituting more than ordinary negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).

            In this case, the judge properly set forth the test for determining whether an individual is liable under section 110(c). 31 FMSHRC at 1424, 1435-36. However, in applying that test, the judge ignored his own factual findings regarding the obvious nature of the violations involved and the overwhelming evidence in the record showing that Matney, as the preshift examiner, knew or should have known of the cited roof conditions and knew or should have known that his preshifts were inadequate. As a result, the judge’s conclusion that Matney was not liable under section 110(c) is unsupportable.

            The judge focused his section 110(c) analysis on the Secretary’s theory that Matney had engaged in intentional misconduct because Matney allegedly knew that Knox Creek had installed, and then intentionally removed, a crib that was supporting the sheared bolt in the intersection of the crosscut and the No. 3 entry. 31 FMSHRC at 1424, 1436-38. The judge’s focus on whether or not the Secretary had successfully proved that the crib had been installed and removed was far too narrow and led him to overlook the most relevant evidence regarding whether a “knowing” violation occurred.

            Although the judge found that a crib had not been installed and removed, as claimed by the Secretary, that finding is not at all dispositive of whether Matney knew or should have known of other violative conditions relating to the roof. The Commission has made clear that section 110(c) liability does not hinge on whether an agent engaged in “willful” conduct. Kenny Richardson, 3 FMSHRC at 15. Instead, the question is whether Matney knew or should have known about the violative roof conditions. Id. at 16.

            The judge’s unwarrantable failure findings with regard to the violative conditions are directly relevant to the inquiry of whether Matney knew or should have known of the roof conditions. In Freeman United, 108 F.3d at 363, the D.C. Circuit stated that “knowing” in the context of section 110(c) includes “deliberate ignorance” and “reckless disregard,” as well as “actual knowledge.” The judge erred by failing to reconcile his unwarrantable failure findings with his section 110(c) analysis. See Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994) (holding that a judge must analyze and weigh all probative record evidence, make appropriate findings, and explain the reasons for his or her decision).

            For purposes of the section 110(c) analysis, the most significant unwarrantable failure finding made by the judge in this regard is his finding that the extensive violative roof conditions were “readily apparent” and that these hazardous roof conditions existed during Matney’s November 7 preshift examination. 31 FMSHRC at 1432-33. He also found that “the hazardous roof conditions went unattended for a considerable period of time, and they were repeatedly overlooked during the course of numerous preshift and onshift examinations.” Id. at 1433. The judge had previously noted that a few days before the preshift and onshift examinations of November 7, 2006, Matney, along with the day shift and night shift foremen, had inspected the area around the intersection at the 8045 survey station in preparation for advancement inby. Id. at 1426. The three foremen traveled the area several times to determine the best location for placement of the two scoop battery chargers. Id. In this regard, the judge stated: “ . . . the hazardous roof conditions, which were repeatedly overlooked by preshift and onshift examiners, included: two sheared roof bolts, one of which was located in an intersection near a dangered-off area; several areas of rib sloughage that resulted in exceeding the maximum 48 inch distance allowed between ribs and roof bolts; and a dislodged crib located near an intersection in an area of bad roof.” Id. at 1432.

            Substantial evidence supports the judge’s findings. The judge determined that the sheared bolts and the roof cracks at survey station 8045 had existed since the area was initially mined four months earlier. Id. at 1433. The judge also found a high degree of danger and emphasized that the sheared bolt in the intersection of the No. 3 entry near the dangered-off area alone constituted an unwarrantable failure. Id. at 1433-34.

            Matney failed to address these conditions in two separate preshift examinations, despite needing to enter the area to access the scoop chargers. In short, the judge’s findings that the violative conditions were “readily apparent” and had existed for a considerable period of time lead inescapably to the conclusion that Matney, the shift foreman conducting preshift examinations, knew or should have known that the violative roof conditions existed.

            Also significant for the section 110(c) analysis in this case is the evidence regarding the nature and extent of Matney’s preshift examinations. The judge found that the timing of Matney’s November 7 preshift examination noted on the date boards was “suspect.” Id. at 1427 n.7. The judge noted that Matney completed his entire preshift examination of this significant area of the mine in only 36 minutes, that Matney merely used his cap light to view and inspect the area, and that Matney did not walk through the area of survey station 8045 during the examination. 31 FMSHRC at 1427 & n.7, 1428.

            Matney acknowledged that he observed the 8045 area from 65 feet away in the No. 2 entry and from behind the scoop at Date Board No. 1 approximately 45 feet away. Tr. 386, 390. Inspector Phillips, though, testified that he could not see the conditions of the roof and ribs in the intersections from the location of the date boards because it was too far away and too dark. Tr. 163. He testified that an examiner would have to walk through the area to adequately examine it, which Matney failed to do. Tr. 163.

            Finally, Matney had been recently retrained on how to perform an adequate preshift examination as abatement of a prior citation issued on October 31, 2006, less than one week prior to the issuance of the citations in this case. 31 FMSHRC at 1426. His actions constitute aggravated conduct, rather than ordinary negligence, supporting a finding of liability under section 110(c). BethEnergy Mines, 14 FMSHRC at 1245.

            In defining the scope of liability under section 110(c), the Commission has stated:

If a person in a position to protect employee 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.

Kenny Richardson, 3 FMSHRC at 16. In Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984), the Commission reaffirmed its holding in Kenny Richardson that “a supervisor’s blind acquiescence in unsafe working conditions would not be tolerated.” The Commission warned that onsite supervisors “could not close their eyes to violations, and then assert a lack of responsibility for those violations because of self-induced ignorance.” Id.

            This “closed eyes” approach highlighted in Roy Glenn is precisely the type of conduct involved here. Matney himself had the responsibility to conduct combined onshift and preshift examinations of the area of the mine at issue to ascertain whether any hazardous conditions existed, to note those conditions, and to take the necessary steps to address the dangerous conditions and protect miners. Clearly, Matney was in a position to protect miners’ safety and health, but failed to do so. The evidence indicates that Matney conducted an abbreviated exam, in which he visually examined the mine’s conditions from a distance and in the dark, using only his cap light, which he admitted provided limited visibility. 31 FMSHRC at 1427-28; Tr. 382-83, 387. Had Matney conducted a more careful and thorough examination, he would have noted the obvious and highly dangerous roof conditions.

            The evidence compels the conclusion that a preshift examiner, exercising reasonable care, would have identified the hazardous roof conditions and taken action to remedy the hazards. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (where evidence supports only one conclusion, remand on that issue unnecessary). Under the standard in Kenny Richardson, an agent who knows or has reason to know of a violative condition, and fails to address those conditions, is liable under section 110(c). 3 FMSHRC at 16. 

            In sum, because the judge focused almost exclusively on the evidence pertaining to the missing crib, he failed to address key pertinent evidence pertaining to Matney’s conduct in performing the preshift examinations. By failing to consider this relevant evidence, the judge erred. Given the judge’s findings on the extensiveness and obviousness of the violative roof conditions, the level of danger involved, the prior notice provided to Matney himself on how to perform an adequate preshift examination, and the circumstances of Matney’s limited examination of the area of the mine in question, we conclude that the record compels the conclusion that Matney should have known of the readily apparent roof violations and that his failure to do so and to note and remedy those violations amounted to a knowing violation under section 110(c). See Harold Moody, 19 FMSHRC 688, 693 (Apr. 1997) (reversing judge’s determination that agent is not liable under section 110(c)).

III.

Conclusion

            For the foregoing reasons, we reverse the judge’s determination that Matney is not liable under section 110(c) for knowingly authorizing Knox Creek’s violations and remand for the assessment of a civil penalty.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Timothy W. Gresham, Esq.

Penn, Stuart & Eskridge

P.O. Box 2288

Abingdon, VA 24212

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021