<DOC>
[DOCID: f:lion.wais]
LION MINING COMPANY
November 21, 1997
PENN 94-71-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 21, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 94-71-R
:
LION MINING COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
Commissioners
DECISION
BY THE COMMISSION:
This contest proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act"), involves a roof control plan violation by
Lion Mining Company ("Lion"). At issue here is Administrative
Law Judge T. Todd Hodgdon's determination on remand that the
conceded violation was a result of Lion's unwarrantable
failure.[1] 18 FMSHRC 1260, 1263-69 (July 1996) (ALJ). The
Commission granted Lion's petition for discretionary review
challenging that determination. For the reasons that follow, we
affirm the judge's determination of unwarrantability.
I.
Factual and Procedural Background
On November 17, 1993, MSHA Inspector Kenneth Fetsko was
inspecting the 4-1/2 right pillar ("4-1/2") section at Lion's
Grove No. 1 underground coal mine near Jennerstown, Pennsylvania.
18 FMSHRC at 696. While he was standing at the crosscut between
pillar block ("block") 37 and block 44, Fetsko observed a
continuous miner loading coal into three or four shuttle cars in
the roadway between blocks 37 and 38. Id. From his vantage
point, Fetsko could not see the front of the continuous miner to
determine from where the coal was coming. 16 FMSHRC at 642.
Fetsko did notice mine superintendent Art Jones and section
foreman Ted Marines across the roadway standing in the crosscut
between blocks 38 and 39. 18 FMSHRC at 696. Marines left for a
short time and, upon returning, ordered roadway posts delivered
to the crosscut. Id.
Recognizing that roadway posts had not been installed,
Fetsko went to the crosscut between blocks 38 and 39. Id.; 16
FMSHRC at 642. At that point Fetsko observed the continuous
miner make a notch cut from the right side of block 37. 18
FMSHRC at 696. Because note 7 to drawing A of Lion's roof
control plan required that roadway posts be installed in roof
bolted entries, rooms, and crosscuts to limit the roadway width
to 18 feet, Fetsko issued a citation to Lion under section
104(d)(1) of the Act for violating its roof control plan, and
thus 30 C.F.R. � 75.220(a)(1),[2] by failing to install roadway
posts in the 38/39 crosscut before making the notch cut. 18
FMSHRC at 696 & n.3. Fetsko designated the violation S&S[3] and
alleged that it was the result of Lion's unwarrantable failure.
Id. at 696. Lion abated the violation by installing four roadway
posts in the crosscut. Id.
In his first decision, in addition to concluding that the
violation was not S&S, the judge determined that the violation
did not result from Lion's unwarrantable failure, but rather from
moderate negligence. 16 FMSHRC at 647-48. He concluded that the
record was insufficient to demonstrate either that mine
superintendent Jones or section foreman Marines "deliberately and
consciously failed to act or engaged in aggravated conduct." Id.
at 647.
In remanding the case to the judge for reconsideration of
his negative S&S and unwarrantable failure determinations, the
Commission held that the judge had erred in determining that Lion
had never been cited for failing to install roadway posts. 18
FMSHRC at 700. Among the reasons the Commission gave for
remanding the unwarrantability issue was the judge's failure to
consider evidence that foreman Marines observed the violation in
progress and failed to immediately order cessation of mining.
Id. at 701. In addition, the Commission took issue with the
judge's decision to discount superintendent Jones' role based on
Jones' testimony that he did not know about the roof control plan
provisions concerning roadway posts and was not required to know
all provisions of the plan. Id. at 700-01. The Commission noted
that Jones also witnessed the notch being mined and did not order
mining stopped. Id. at 700.
On remand, the judge concluded that the roof control plan
violation was S&S and a result of Lion's unwarrantable failure.
18 FMSHRC at 1263, 1269. The judge summarized his findings in
support of his unwarrantability determination as follows:
[T]he miner operator mined a notch out of
block 37 with no apparent intent of stopping
after the notch was removed; no one told him
to stop mining; Jones, Marines and [mine
foreman] Lambert were all present while this
occurred; at a minimum both Marines and
Lambert knew what the roof control plan
required, yet no action was taken to install
the roadway posts until after the notch was
mined, and the reason for installing them
then was at least partially the result of the
inspector being present. Further, as the
Commission has already held, the company's
previous roof control violations and roof
falls should have put it on notice that
greater efforts were necessary for
compliance.
Id. at 1269 (footnote omitted). The judge also concluded that he
did not need to address whether Jones' professed ignorance of the
roof plan requirements constituted more than ordinary negligence,
given that other Lion supervisory personnel with knowledge of the
roof control plan requirements were present when the violation
occurred. Id. at 1267.
II.
Disposition
Focusing on the short duration and limited extent of the
violation, Lion urges reversal of the judge's finding of
unwarrantable failure. L. Br. at 16-17. Arguing that there is
no evidence that it has ever been previously cited for failure to
timely install roadway posts, Lion contends that the judge erred
in taking previous violations into account in determining
unwarrantability. Id. at 16. Lion describes as further error
the judge's consideration of foreman Marines' presence during the
violation, stating that "[a] reasonable and logical reading of
Mr. Marines['] testimony shows that he did not observe the actual
cutting of the notch." Id. at 14-15.
In response, the Secretary contends that the judge's
unwarrantable failure determination is supported by the evidence
of the numerous roof control violations and roof falls on the 4-
1/2 section, as well as by evidence that both Jones and Marines
stood by and permitted the violation to take place. S. Br. at
15. The Secretary also requests the Commission to overturn the
judge's finding that superintendent Jones did not know that he
was witnessing a roof control plan violation. Id. at 9 & n.3.
The Secretary claims that, based on Jones' experience in other
mines and his testimony, it would have been unreasonable for
Jones to think otherwise. Id. at 9-12.
The unwarrantable failure terminology is taken from section
104(d) of the Act, 30 U.S.C. � 814(d), and refers to more serious
conduct by an operator in connection with a violation. In Emery
Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February
1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136
(7th Cir. 1995) (approving Commission's unwarrantable failure
test). In determining whether a roof control violation is
unwarrantable, the Commission has taken into account the high
degree of danger normally posed by such violations and whether
the operator had been placed on notice that greater roof control
efforts were needed. See, e.g., Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988). In addition, the Commission has considered
whether supervisory personnel were present when the roof control
violation took place. See, e.g., Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2011 (December 1987); S&H Mining, Inc., 17 FMSHRC
1918, 1923 (November 1995).
A. Whether Lion Had Prior Notice of a Need for Greater
Roof Control Efforts
In its original decision, the Commission found that Lion had
received two citations for failing to install roadway posts on
the 4-1/2 section within 2 months of the citation at issue, had
been cited for four other roof control violations on the section
during the preceding 9 months, and had experienced five roof
failures on the section within 2 years of the citation, including
one the day before the subject citation was issued. 18 FMSHRC at
700. The Commission concluded that such a history of roof
violations and falls should have placed Lion on notice that
greater efforts were necessary for compliance with its roof
control plan. Id.
Nevertheless, Lion objects to the judge having taken this
history into account in finding the instant violation
unwarrantable. L. Br. at 16. Lion made the same argument to the
judge that it makes here, but the judge did not address it,
relying simply on the Commission's earlier conclusion that "the
company's previous roof control violations and roof falls should
have put it on notice that greater efforts were necessary for
compliance." 18 FMSHRC at 1269.
The judge correctly declined to revisit the previous history
question. Under the law of the case, he was precluded from
reaching a different result on the issue. See Secretary of Labor
on behalf of Mullins v. Consolidation Coal Co., 4 FMSHRC 1622,
1624 n.2 (September 1982) (issues and questions resolved by
higher authority become unassailable law of the case). The issue
having already been decided by the Commission, Lion's proper
recourse was to move the Commission to reconsider its original
decision, rather than making the argument on remand to the judge,
and then again on further appeal. Because the time for such a
motion has long since passed, we will not reconsider the issue,
but will simply rely on the Commission's earlier finding. See 29
C.F.R. � 2700.78 (petition for reconsideration of Commission
decision must be filed within 10 days).
B. Whether Foreman Marines Observed the Violation
Because of the high standard of care to which foremen and
other supervisory personnel are held, the Commission takes
into account whether such personnel were present when the
violation took place in determining unwarrantability. See
Youghiogheny, 9 FMSHRC at 2011 (quoting Wilmot Mining Co., 9
FMSHRC 684, 688 (April 1987)); S&H Mining, 17 FMSHRC at
1923. We reject Lion's claim that the record does not
support the judge's finding that Marines observed the
violation taking place. Marines testified that the miner
operator was extracting coal from the pillar when he
returned to the area, that he then told the shuttle car
operator to bring timber up to the face because the miner
operator had "started to notch out the 37 stump," and that
he instructed the miner operator to cease mining only after
the operator had completed the loading of a shuttle car.
Tr. 133-34, 137. Thus, Marines witnessed the violation yet
did not act to immediately stop it.[4] The judge therefore
correctly considered Marines' conduct as a factor tending to
establish an unwarrantable failure on the part of Lion.
C. Other Factors
Though not addressed by the judge, a third factor supporting
the judge's unwarrantability determination is the high degree of
danger posed by the violation. That the roof control violation
posed a high degree of danger under the circumstances is implicit
in the judge's S&S determination. The judge based that
determination on the well-known danger posed by even good mine
roofs, the documented history of roof falls in the mine at issue,
and evidence that the rib was rolling between blocks 38 and 39,
the precise area where the roadway posts should have been
installed prior to the notch being cut. 18 FMSHRC at 1262-63.
While, as Lion contends, its roof control violation may have
been brief and not extensive, under Commission precedent the
Secretary satisfies her burden of establishing the
unwarrantability of a roof control violation where a foreman knew
of the violative condition, the violation occurred in a mine with
a history of roof falls, and the violation created a hazard
characterized by high danger. See Cyprus Plateau Mining Corp.,
16 FMSHRC 1610 (August 1994). Because all of those elements are
present here, we conclude that substantial evidence supports the
judge's unwarrantability determination.[5] That Lion's violation
may have been brief in duration and not extensive does not compel
a different result. See id. at 1611-12, 1616 (unwarrantability
finding where installation of ventilation tubing under
unsupported roof took only several minutes to complete).[6]
III.
Conclusion
For the foregoing reasons, we affirm the judge's
determination that Lion's violation was the result of its
unwarrantable failure.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Distribution
Joseph A. Yuhas, Esq.
1809 Chestnut Avenue
P.O. Box 25
Barnesboro, PA 15714
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1]: Remand was of the judge's earlier decision that the
violation was neither unwarrantable nor significant and
substantial ("S&S"). 18 FMSHRC 695 (May 1996), vacating and
remanding 16 FMSHRC 641 (March 1994) (ALJ). On remand, the judge
found the violation to be both unwarrantable and S&S. 18 FMSHRC
at 1263, 1269. Lion has appealed only the unwarrantability
determination.
[2]: Section 75.220(a)(1) requires that "[e]ach mine
operator shall develop and follow a roof control plan, approved
by the District Manager, that is suitable to the prevailing
geological conditions, and the mining system to be used at the
mine."
[3]: The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C.
� 814(d)(1), which distinguishes as more serious any violation
that "could significantly and substantially contribute to the
cause and effect of a . . . mine safety or health hazard."
[4]: Lion does not contest the judge's conclusion that
Marines understood the roof control plan to require that the
posts be erected before any mining was performed. 18 FMSHRC at
1267 & n.4.
[5]: When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test. 30 U.S.C.
� 823(d)(2)(A)(ii)(I). "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (November 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[6]: In light of our holding, there is no need to take up
the parties' request that we address other findings that the
judge made in his decision on remand.