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[DOCID: f:liondd.wais]

 
LION MINING COMPANY
May 23, 1996
PENN 94-71-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET N.W. 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                             May 23, 1996

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
            v.                    :    Docket No. PENN 94-71-R
                                  :
LION MINING COMPANY               :


BEFORE:  Jordan, Chairman; Holen, Marks, and Riley, Commissioners[1]


                               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 citation issued to Lion Mining Company ("Lion")
alleging a violation of 30 C.F.R. � 75.220(a)(1) (1995) for failure
to comply with its approved roof control plan.[2] Administrative Law
Judge T. Todd Hodgdon concluded that Lion violated the standard, but
that the violation was not significant and substantial ("S&S") and was
not the  result of Lion's unwarrantable failure. 16 FMSHRC 641 (March
1994) (ALJ). The Commission granted the Secretary of Labor's petition
for discretionary review, which challenges the judge's S&S and
unwarrantable failure determinations. For the reasons that follow,
we vacate those determinations and remand.

                                  I.

                  Factual and Procedural Background

     On November 17, 1993, Inspector Kenneth Fetsko of the Department
of Labor's Mine Safety and Health Administration ("MSHA") inspected
the four and one-half right pillar section ("4� section") at Lion's
Grove No. 1 underground coal mine near Jennerstown, Pennsylvania.
16 FMSHRC at 641; Gov't Ex. 9.  He was accompanied by Lion's safety
director, Mike Bittner.  Tr. 32-33.  At the 37/44 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.  16 FMSHRC at 641-42. Fetsko also saw Mine
Superintendent Arthur Jones and Section Foreman Ted Marines across the
roadway in the crosscut between Blocks 38 and 39.  Id.  The 38/39
crosscut had been roof bolted and breaker posts and radius turn posts
had been installed, but roadway posts had not.  Id. at 642, 646.  Fetsko
then observed the continuous miner make a notch cut from the right side
of Block 37.  Id. at 642; Joint Ex. 1; Tr. 71.  Marines left for a short
time and, upon returning, ordered roadway posts delivered to the crosscut.
16 FMSHRC at 647. Fetsko issued a citation to Lion under section
104(d)(1) of the Act, 30 U.S.C. � 814(d)(1), for violating its roof
control plan by failing to install roadway posts in the 38/39 crosscut
before making the notch cut.[3]  16 FMSHRC at 642; Gov't Ex. 1.  Fetsko
designated the violation S&S and alleged that it was the result of Lion's
unwarrantable failure.  Id. Lion abated the violation by installing four
roadway posts in the crosscut.  16 FMSHRC at 642; Gov't Exs. 1, 4;
Tr. 74, 86-87. 

     Lion conceded the violation but contested the S&S and unwarrantable
failure designations. 16 FMSHRC at 643.  Accordingly, the judge found
a violation.  Id.  The judge concluded, however, that the violation
was not S&S.  Id. at 645- 46.  He found that the Secretary failed to
establish that a serious injury was reasonably likely to have resulted
from Lion's failure to install the roadway posts.  Id. at 645.  The
judge determined that Lion, at the time, had several other means of
preventing a roof fall.  Id. at 646.  He emphasized that the area in
question had been completely roof bolted and that breaker posts and
radius turn posts had also been installed.    Id.  Additionally, the
judge stated it was not clear that the sole, or even the primary
function, of roadway posts was roof support. Id. at 645.  The judge
also concluded Inspector Fetsko was mistaken in believing Block 37 had
been mined previously, before the notch was cut.  Id. at 646 & n.4.

     The judge additionally concluded the violation did not result
from Lion's unwarrantable failure, but rather resulted from moderate
negligence.  Id. at 647-48.  He concluded record evidence was insufficient
to demonstrate either that the mine superintendent or the section foreman
"deliberately and consciously failed to act or engaged in aggravated
conduct."  Id. at 647. Furthermore, he found that additional mining of
Block 37 would not have taken place until after the roadway posts were
installed. Id.

                                 II.

                             Disposition

A.  Significant and Substantial

     The Secretary argues the judge erroneously determined the
violation was not S&S because he failed to find that the function
of roadway posts was roof support and because he improperly gave
weight to Lion's compliance with other parts of the roof control
plan.  S. Br. at 5, 7-8.  The Secretary also argues that the judge
failed to consider adequately the history of roof falls in the 4'
section and roof conditions at the time of the citation and that he
failed to consider general evidence that roof falls are the leading
cause of fatalities in mines.  Id. at 5-6.

     In response, Lion submits that substantial evidence supports
the judge's finding that the violation was not S&S.  L. Br. at 7-16.
Lion points to other roof support in the area.  Id. at 10.  It also
argues that, at the time of citation, only a small part of the pillar
had been mined and that further mining would not have taken place until
after roadway posts were installed.  Id. at 10-11.  The S&S terminology
is taken from section 104(d)(1) of the Act and refers to more serious
violations.  A violation is S&S if, based on 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 Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825-26 (April 1981).
In  Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission further
explained:

          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.

Id. at 3-4 (footnote omitted).  See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).

     Substantial evidence does not support the judge's S&S
determination.[4]  The judge's approach to weighing record
evidence was unduly restrictive and reflects a misunderstanding
as to the purpose of roadway posts.  In concluding that the
Secretary had not satisfied the third Mathies element, the judge
emphasized that the area was completely roof bolted and contained
breaker and radius posts.  16 FMSHRC at 646.  Under the roof
control plan, however, Lion was required to install roadway posts
before it could commence mining Block 37, which would cause a
reduction in roof support.  Id. at 643; L. Posthearing Br. at 6;
S. Posthearing Br. at 4-5.  The judge failed to recognize that
roof bolting and other posts were adequate support for roof
conditions only before mining of the pillar.  Thus, we conclude
the judge erred in placing undue weight on the operator's
compliance with the applicable roof bolting, breaker, and radius
post requirements.

     The judge also failed to understand that the function of
required roadway posts was to provide roof support.  The judge
stated:

          [A]ccording to the Dictionary of Mining,
          Mineral, and Related Terms 931 (1968)
          ["DMMRT"], roadway supports, which include
          roadway posts, serve two functions, to: "(1)
          ensure safety by preventing falls of ground,
          and (2) maintain the maximum possible roadway
          size by resisting the tendency of the roadway
          to contract and distort."  It is not at all
          clear from Lion Mining's roof control plan
          that the sole, or even the primary, function
          of the roadway posts in this case was to
          serve as roof support.

16 FMSHRC at 645 (footnote omitted).  The judge erred in failing
to find that a principal function of roadway posts is roof
support.  He apparently did not realize that "falls of ground,"
cited by the DMMRT as a hazard against which roadway supports
protect, refers to "[r]ock falling from the roof into a mine
opening."  DMMRT at 410.  He also noted that section 75.207(c),
30 C.F.R. � 75.207(c), does not require installation of roadway
posts until mining on the final stump commences, which had not
occurred here.  16 FMSHRC at 645 n.3.  The judge's reliance upon
section 75.207(c) is misplaced.  That standard specifies
procedures for pillar recovery that are required "unless
otherwise specified in the roof control plan."[5]  Lion concedes
that its plan required roadway posts to be installed before
pillars are mined in order to provide additional roof support.
See Tr. 26, 38, 129; L. Br. at 4.

     We agree with the Secretary that the judge also erred in
failing to consider the history of roof falls in the section.
The area experienced roof falls on five occasions within two
years prior to the instant violation.  Gov't Exs. 3, 5, 6; Tr.
43; S. Br. at 6-7.  Indeed, the previous day a roof fall occurred
only two pillar blocks away from Block 37.[6]  Tr. 43, 50-51;
Gov't Exs. 3, 5, 6.  We reject the Secretary's argument, however,
that the judge erred in failing to consider general evidence on
the danger of roof falls.  The Commission has held that an S&S
determination must be based on the particular facts surrounding
the violation, including the nature of the mine.  See Texasgulf,
Inc., 10 FMSHRC 498, 501 (April 1988).

     For the foregoing reasons, we vacate the judge's S&S
determination and remand for further analysis.

B.  Unwarrantable Failure

     The Secretary argues that the judge failed to address adequately
evidence that Lion had a history of roof falls and roof control plan
citations in the section, including several for failing to install
roadway posts.  S. Br. at 9-11.  The Secretary also notes that both
the mine superintendent and the section foreman observed the continuous
miner removing coal from the pillar in violation of the roof control
plan without ordering mining to cease. Id. at 9-12.

     Lion avers that, as soon as the section foreman became aware
of the cited condition, he immediately ordered cessation of mining
and the delivery of posts to the area.  L. Br. at 18.  Lion also
submits that the mine superintendent was not negligent because he
had only recently been employed at the mine and was not familiar
with all details of the roof control plan.  Id. at 18-19.  Lion
further argues that the violation existed for only the last ten
seconds of the 20- to 30-minute period the inspector observed the
continuous miner working.  Id. at 20.

     The unwarrantable failure terminology is taken from section
104(d)(1) of the Act 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 Corp., 13 FMSHRC 189,
193-94 (February 1991); see also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d at 136 (approving Commission's unwarrantable failure test).

      In Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February
1994), the Commission set forth factors to be considered in making
an unwarrantable failure analysis: "the extensiveness of the violation,
the length of time the violative condition has existed, the operator's
efforts to eliminate the violative condition, and whether an operator
has been placed on notice that greater efforts are necessary for
compliance."  The Commission has also examined conduct of supervisory
personnel in determining unwarrantable failure.  A heightened standard
of care is required of such individuals.  See Youghiogheny & Ohio Coal
Co., 9 FMSHRC 2007, 2011 (December 1987); S&H Mining, Inc., 17 FMSHRC
1918, 1923 (November 1995).

     The judge erroneously determined that Lion had never been
cited for failing to install roadway posts.  See 16 FMSHRC at 647.
Lion received two such citations within two months of the subject
citation for violations on the same section.  Gov't Ex. 8.  In
addition, during the preceding nine months, MSHA cited Lion for four
other roof control violations in the section.  Id.  There were also
five roof failures in the section within two years of the citation,
including one roof fall the day before the citation.  Gov't Exs. 3,
5, 6; Tr. 43; S. Br. at 6-7.  This history of roof violations and
roof falls should have placed Lion on notice that greater efforts
were necessary for compliance.  See Youghiogheny & Ohio, 9 FMSHRC
at 2010-11; Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992).

     The judge also observed that record evidence was not sufficient
to establish that Mine Superintendent Jones and Section Foreman
Marines "deliberately and consciously failed to act or engaged in
aggravated conduct."[7]  16 FMSHRC at 647.  Superintendent Jones
saw the notch being mined and did not order mining to be stopped.
Tr. 125, 128.  The judge, however, noted 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.  16
FMSHRC at 647, citing Tr. 124.  Accordingly, the judge found that,
even if Jones had a duty to know the roof control plan and breached
that duty, the breach was "not necessarily an `unwarrantable failure.'"
16 FMSHRC at 647.  The judge did not consider that Jones had
approximately 21 years of mining industry experience, had been
employed by Lion as mine superintendent for eight months, and was
in charge of safety and health at the mine.  Tr. 121-22, 125.  Jones
also conceded that erecting roadway posts was "a common part of the
roof control plan." Tr. 127.  In addition, the judge should consider
Jones' testimony that he believed the roof control plan allowed roadway
posts to be erected after pillar extraction began (Tr. 128-29) and
whether that interpretation was reasonable.  See Cyprus Plateau Mining
Corp., 16 FMSHRC 1610, 1615 (August 1994).  Consideration should also
be given to the Secretary's admission that the plan did not expressly
require that roadway post installation should occur before commencement
of pillar extraction.  S. Br. at 8 n.5.

     With respect to Foreman Marines, the judge found that Marines
"left [the] area for a short time . . . and that when he returned
the last shuttle car was being loaded, including coal from the notch"
and that "he told the shuttle car operator to return with timber to
install the roadway posts . . . ."  16 FMSHRC at 647.  Marines testified
that he saw the notch being cut and did not order mining to cease
"till [the continuous miner operator] finished that shuttle car."  Tr.
134, 135, 137.  The judge should have considered in his analysis that
Marines observed the violation in progress and failed to immediately
order cessation of mining.  The continuous miner operator also testified
that he intended to continue mining at the time in question.  Tr. 112.
The judge should reconsider his findings in light of this testimony.

     The judge did not determine whether Inspector Fetsko's
presence served as the impetus for ordering the roadway posts.
Although he relied on Marines' testimony that the inspector did
not explicitly remind him to install the posts, 16 FMSHRC at 647,
the judge did not evaluate the potential influence of the inspector's
presence. Moreover, the inspector had conversations with other
management officials in which he pointed out the lack of roadway
posts.[8]  In reconsidering his finding that "further mining of
Pillar Block 37 would not have taken place until after the roadway
posts were installed," the judge should take into account the
inspector's presence and the conversations between the inspector
and mine officials.  Id.

     We vacate the judge's determination and remand for further
analysis of whether the violation resulted from Lion's unwarrantable
failure.  Clarification by the judge of the chronology of events
will be relevant to his analysis.  A judge must analyze and weigh
the relevant testimony of record, make appropriate findings, and
explain the reasons for his decision.  Mid-Continent Resources,
Inc., 16 FMSHRC 1218, 1222 (June 1994).

                                 III.

                              Conclusion

     For the foregoing reasons, we vacate the judge's determinations
that the violation was not S&S and not the result of unwarrantable
failure.  We remand for analysis consistent with this opinion.


                            ________________________________
                            Mary Lu Jordan, Chairman

                            ________________________________
                            Arlene Holen, Commissioner

                            ________________________________
                            Marc Lincoln Marks, Commissioner

                            ________________________________
                            James C. Riley, Commissioner


**FOOTNOTES**

     [1]:   Commissioner  Doyle participated in the consideration
of this matter but resigned  from the Commission before its final
disposition.

     [2]:  Section 75.220(a)(1) provides in pertinent part:

            Each  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]:   Lion's roof control plan requires that roadway  posts
be installed  in  roof  bolted  entries,  rooms, and crosscuts to
limit  the roadway width to 18 feet.  Gov't  Ex.  2,  note  7  to
Drawing   A   (Plan  for  Installing  Roof  Supports  for  Pillar
Recovery).

     [4]:  The  Commission  is  bound by the substantial evidence
test  when  reviewing  an  administrative   law  judge's  factual
determinations.   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).   While  we do not lightly  overturn  a  judge's  factual
findings and credibility  resolutions,  neither  are  we bound to
affirm such determinations if only slight or dubious evidence  is
present  to support them.  See, e.g., Krispy Kreme Doughnut Corp.
v. NLRB, 732  F.2d  1288,  1293  (6th  Cir.  1984); Midwest Stock
Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th  Cir. 1980).  We
are guided by the settled principle that, in reviewing  the whole
record, an appellate tribunal must also consider anything  in the
record  that  "fairly  detracts"  from the weight of the evidence
that supports a challenged finding.   Universal  Camera  Corp. v.
NLRB, 340 U.S. 474, 488 (1951).

     [5]:   Section 75.207 provides in pertinent part:

            Pillar  recovery  shall  be conducted in
       the   following   manner,   unless  otherwise
       specified in the roof control plan:

            . . . .

            (c)  Before mining is started on a final stump . .
            . .

     [6]:  Inspector Fetsko testified that, between Blocks 38 and
39, he observed that the "rib was rolling," i.e., that pieces of
the rib were breaking off. Tr. 39, 65-66. While the judge generally
referred to this testimony in his decision, 16 FMSHRC at 645, he
apparently did not consider it in his S&S analysis. On remand,
he should do so.

     [7]:  A "deliberate and conscious failure to act" is not
determinative of an unwarrantable finding. See S&H, 17 FMSHRC
at 1923. The judge, however, references and applies the correct
test for determining unwarrantability. 16 FMSHRC at 646-47. See
Emery, 9 FMSHRC at 2003-04; Rochester & Pittsburgh, 13 FMSHRC at
193-94.

     [8]:   According to the inspector's notes and testimony,
immediately after he pointed out the problem to one of the management
officials, that official looked over to where Jones and Marines were
in the crosscut and then went over and started measuring for posts.
Gov't Ex. 5; Tr. 34-36. During the time Inspector Fetsko observed the
area, he could see that Jones was in the crosscut between Blocks
38 and 39 the entire time, while Marines left the area and returned.
Tr. 40.