<DOC>
[DOCID: f:wv9872.wais]
July 12, 2000
EAGLE ENERGY, INCORPORATED,
WEVA 98-72-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 12, 2000
EAGLE ENERGY, INCORPORATED, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. WEVA 98-72-R
: Order No. 7166391; 3/11/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEVA 98-73-R
ADMINISTRATION (MSHA), : Order No. 7166392; 3/11/98
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-123
Petitioner : A.C. No. 46-07711-03674
v. :
: Mine No. 1
EAGLE ENERGY, INCORPORATED, :
Respondent :
DECISION
Appearances: Howard N. Berliner, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia;
James Bowman, Conference and Litigation Representative,
Mine Safety and Health Administration , Mount Hope,
West Virginia, for the Petitioner;
David J. Hardy, Esq., Julia K. Shreve, Esq., Jackson &
Kelly, Charleston, West Virginia, for the Respondents.
Before: Judge Feldman
These contest and civil penalty matters concern a petition for
assessment of civil penalty filed by the Secretary of Labor (the
Secretary) against the respondent, Eagle Energy, Incorporated (Eagle
Energy), pursuant to section 110(a) of the Federal Mine Safety and
Health Act of 1977 (the Act), 30 U.S.C. � 820(a). The petition seeks
to impose a civil penalty of $3,000 for each of two 104(d)(2) orders
issued as a result of a February 26, 1998, inspection of the 2 North
section of Eagle Energy's Mine No. 1. Specifically, the orders
cite alleged violations of the Secretary's mandatory safety
standards in 30 C.F.R. �� 75.360(b) and 75.362(a)(1) that require
adequate preshift and onshift examinations for the purpose of
detecting and remedying hazardous conditions.
The hearing in these proceedings was conducted in Charleston,
West Virginia, over ten days, in three sessions, from September 14
to September 17, 1999, December 7 to December 9, 1999, and February
15 to February 17, 2000.[1] Eagle Energy has stipulated that
it is a large mine operator that is subject to the jurisdiction of
the Act.
I. Statement of the Case
These proceedings concern 104(d)(2) Order Nos. 7166391 and 7166392
issued by Mine Safety and Health Administration (MSHA) Inspector
Thurman L. Workman as a consequence of his February 26, 1998,
inspection of Eagle Energy's No. 2 North section located in its Mine
No. 1. During the course of his February 26, 1998, inspection, Workman
observed ten roof conditions that he determined to be unsupported
kettlebottoms at various locations in the 2 North section's mine
roof.[2] Three of the kettlebottoms were spray painted in orange
paint. As discussed below, kettlebottoms are fossilized remains of
trees, often circular or oval in shape, that are present in the
mine roof, and that require supplemental support because they are
capable of falling without warning.
Upon completing his inspection, Workman reviewed the preshift
and onshift examination reports for the 2 North section beginning
with the preshift examination on the hoot owl shift (11:00 p.m to
7:00 a.m.) on February 24, 1998, through the preshift examination
for the February 26, 1998, night shift, that was conducted during
the day shift at 1:30 p.m. on February 26, 1998. During this period
from February 24 through February 26, 1998, 17 preshift and onshift
examinations were conducted. However, Workman noted that no entries,
notations or comments concerning the ten hazardous roof conditions
that he had observed in the 2 North section had been made by any of
the three section foreman performing the preshift and onshift
examinations during those days.
In its defense, Eagle Energy asserts the cited conditions
were not hazardous kettlebottoms. Although it maintains
the conditions were not hazardous, Eagle Energy contends
the conditions did not become visible until immediately
prior to Workman's inspection because of roof sloughage
that had occurred as a result of mountain bumping. For
the reasons discussed below, Eagle Energy's defense is
not supported by the record and must be rejected.
II. Preliminary Findings of Fact
On February 26, 1998, at approximately 2:50 p.m., James
Kerns, a maintenance foreman, was fatally injured as a
result of a rib roll accident in the 2 North section of
Eagle Energy's Mine No. 1. The fatal accident occurred
in the 27th crosscut between the first and second
entries, inby survey spad 2669. (Gov. Ex. 19). Shortly
thereafter, Eagle Energy alerted MSHA's Mount Hope
District Office that a fatality had occurred, and an MSHA
investigative team was dispatched to the mine. MSHA
personnel, as well as State of West Virginia Office of
Miners' Health, Safety and Training personnel, arrived at
the Mine No. 1 at approximately 5:00 p.m. Among the MSHA
investigative personnel that went underground to the No.
2 North section were inspectors Thurman L. Workman, Vaughan
Gartin and supervisory inspector Terry D. Price. The federal
and state investigators were accompanied by Eagle Energy
Vice-President Larry Ward, superintendent Terry Walker and
night shift foreman Roger Lovejoy.
MSHA personnel, West Virginia personnel and Eagle Energy
officials went underground in several groups and met at
the No. 2 North section dumping point/feeder location,
located outby survey spad 2665 in the No. 2 entry at the
26th crosscut. The investigators were divided into
inspection teams, each team being comprised of at least
one federal investigator, one state investigator, and one
management official. While one team traveled to the
accident site, the other individuals waited at the
dumping point.
At approximately 6:50 p.m., while the first investigating
team was at the accident site, Price walked from the
dumping point area in the No. 2 entry through the 26th
crosscut towards the No. 3 entry. At that time Price
heard sounds he attributed to mountain bumping. Mountain
bumping is common in the mining industry. It occurs as a
result of movement or slippage in the earth's strata
above caused by weight shifts as a consequence of coal
removal, particularly from longwall mining below. (Tr.
I, 1264-66). Miner's representative Keith Casto, who was
underground with Price during the evening of February 26,
1998, opined the mountain bumping at that time was "super
light" and that he "didn't see nothing falling off the
roof, or nothing." (Tr. II, 232-33).
While Price was walking towards the No. 3 entry, Workman
traveled from the dumping point through the 26th crosscut
towards the No. 1 and No. 2 entries. Workman then
doubled back along the 26th crosscut towards the No. 3
entry whereupon Workman observed a kettlebottom, with a
roof bolt through the center, located in the 26th
crosscut between the No. 2 and No. 3 entries. (2(c) in
Gov. Exs. 1, 2; Gov. Ex 19; Joint Ex. 1, photos 11, 12;
Tr. I, 284-87). This kettlebottom was also observed by
Price. (Tr. I, 1267).
Kettlebottoms are fossilized remains of tree trunks that
are cylindrical or oblong in shape and sometimes protrude from
the mine roof. Although most often cylindrical or oblong,
Kettlebottoms have various shapes and do not all look alike.
Kettlebottoms may be surrounded by a ring of coal, or, they maybe
surrounded by slickensided material that consists of smooth and
highly polished planes of weakness that are primarily found in
mines containing shale roof rock. Some kettlebottoms may be
partially surrounded by coal and partially slickensided. Price
explained the nature and dangers of kettlebottoms, and their need
of supplemental support:
Kettlebottoms are an indication of a roof abnormality.
A well supported mine roof consists of being supported
with roof bolts. And generally what happens is you
get a consolidated beam that each individual layer by
itself is weak. But if you put all these layers
together, you build a stronger beam. That, in turn,
supports the roof above so it doesn't fall in on the
mine entry where the mine entry has been taken out.
What a kettlebottom does is it interrupts that beam
structuring process and it weakens the roof. Now,
the problem with kettlebottoms is that it's tied
into nothing. It's slickensided or [slick and sides]
and the coal reams together and they have no strength.
It's just there and they have no strength. Now, when
the weight of a kettlebottom overcomes its ability
of the tension to hold it in from the slickenslide,
it falls out. Or it can fall without warning if it
is not supported.
(Tr. I, 1110-1111). Virtually all of the witnesses agreed that
kettlebottoms are a common occurrence in Eagle Energy's Mine No.
1. (See e.g., Tr. II, 204, III, 1067). Kettlebottoms are
sometimes identified with spray paint or chalk to alert the roof
bolter that additional support is required. (Tr. II, 215, 272).
Given the above explanation by Price, it is clear that a
roof bolt and plate in the center of a kettlebottom is
ineffective because such support will not prevent the
kettlebottom from dropping out of the roof. Rather,
Workman and miners' representative Casto explained the
proper method of supporting a kettlebottom is to secure
headers or straps to the outer perimeter of a
kettlebottom to make certain the kettlebottom will not
separate from the surrounding roof structure. (Tr. I,
124-27, II, 204-06). Thus, Workman and Price concluded
the kettlebottom with the roof bolt and plate through the
center, located in the 26th crosscut between the No. 2 and
No. 3 entries, was a hazardous condition.
After observing the roof bolted kettlebottom, Workman
returned to the dumping point where he saw Pete
Hendricks, President of Massey Coal Services, Eagle
Energy's parent company. Workman and Price, accompanied
by Casto, next walked approximately 27 feet inby the
dumping point where they observed three oblong or round
kettlebottoms at survey spad 2665 that were each painted
in their entirety with orange spray paint and had the
letters "CUZ" spray painted next to them. (2(d) in Gov.
Exs. 1, 2; Gov. Exs. 11(A) - (E); Tr. I, 292, 296, 308).
One of the kettlebottoms appeared to have an orange
painted centerline drawn through it. (Gov. Ex. 11(A)).
A centerline is drawn on the mine roof of an entry,
before the next cut in the entry is taken, to ensure that
the continuous miner proceeds in a straight direction.
Workman walked back to Hendricks at the dumping point.
Workman pointed to the painted kettlebottoms he and Casto
had just observed, and Hendricks, using his cap lamp,
looked up at the roof from the dumping point and
acknowledged that he saw them. (Tr. I, 297-300).
Workman specifically asked Hendricks, who then was sitting on
the end of the feeder tailpiece, if he had seen the three
unsupported, painted kettlebottoms. Workman testified
Hendricks replied, "T. L. [Workman], I pay my people to support
them (sic) kettlebottoms." (Tr. I, 224-25, 293-94, 298).
Ward testified that, after the conditions in the No. 2
entry inby the feeder had been pointed out by Workman, he
looked at the painted roof conditions and instructed
safety manager Jeffrey Bennett to danger-off the area.
Ward stated that he had the area dangered-off until he
would have the opportunity to get a better look at the
area. (Tr. III, 1052-53, 1096-97).
Workman asked MSHA's lead investigator, Vaughn Gartin,
to photograph the painted kettlebottoms. Gartin had used
all of his film at the accident site. However, Gartin
borrowed some film from a state investigator and
photographed the painted cluster of kettlebottoms.
(Gov. Exs. 11(A)-(E); Tr. I, 310, 314). Although Gartin did not
have enough film to photograph the other kettlebottoms observed
by Workman, photographs of the cited conditions were
taken by Bennett on November 21, 1998. The photographs were
taken to illustrate the cited conditions shortly before the No. 2
section of the mine was scheduled to be abandoned. Bennett's
photographs, and accompanying photo log, were admitted in
evidence as a joint exhibit. (Joint Ex. 1; Tr. I, 442-43, 444,
1329).
After his conversation with Hendricks, Workman traveled
back in the 26th crosscut toward the No. 1 entry. Workman observed
an unsupported egg-shaped kettlebottom in the 26th crosscut
approximately half way between the No. 1 and No. 2
entries. (1(b) in Gov. Exs. 1, 2; Gov. Ex. 19; Tr. I, 294, 301,
354).
Workman then traveled inby with the second investigative
team. The team traveled up the No. 2 entry to the
accident site in the 27th crosscut between the No. 1 and
No. 2 entries. Workman took contemporaneous notes as he
was walking around the No. 2 section. (Gov. Ex. 5; Tr.
I, 358). Workman returned to the dumping point to confer
with Gartin and other investigators about their
preliminary accident investigation findings. At that
time, Workman was instructed to conduct a Triple A
inspection to determine the conditions in the No. 2
section inby from the dumping point to the working faces.
(Tr. I, 364).
Workman, accompanied by Denver Gunnoe, a State of West
Virginia inspector, walked up the No. 1 entry and noted a
roundish-oblong kettlebottom approximately six to nine
inches in diameter, inby survey spad 2669. (1(a) in Gov.
Exs. 1, 2; Gov. Ex. 19; Tr. I, 370). Workman continued
to walk through the 27th crosscut from the No. 1 entry into the
No. 2 entry. There, at the intersection of the 27th crosscut and
the No. 2 entry, just inby survey spad 2668, Workman observed an
unsupported "sunflower-shaped" kettlebottom "with jageddy (sic) edges"
that was approximately six to nine inches in diameter. (2(a) in
Gov. Exs. 1, 2; Gov. Ex. 19; Tr. I, 385-86).
Workman next traveled inby survey spad 2668 in the No. 2
entry towards the face. Workman noted another
unsupported kettlebottom located approximately 25 feet
inby spad 2668 that was similar in size and shape to the
other kettlebottoms. (2(b) in Gov. Exs. 1, 2; Gov. Ex.
19, Joint Ex. 1, photos 7, 8; Tr. I, 392-93). Workman
did not observe additional kettlebottoms inby the last
open crosscut (the 27th crosscut) toward the faces in the
No. 2 and No. 3 entries. However, in returning outby in
the No. 3 entry, Workman saw another unsupported
kettlebottom just outby spad 2666 that was round in shape
and approximately six to ten inches in diameter. (Gov.
Ex. 19; Tr. I, 406-07). However, this kettlebottom was
not cited by Workman in the subject 104(d)(2) orders.
Workman traveled down the 27th crosscut and turned in an
outby direction in the No. 1 entry. There, in the No. 1
entry, outby the 26th crosscut near spad 2664, Workman
spotted another unsupported kettlebottom, similar in size
and shape to the kettlebottom found outby
spad 2666. (1(c) in Gov. Exs. 1, 2; Gov. Ex 19; I, 410). Thus,
Workman observed a total of
ten kettlebottoms, nine of which were cited in 104(d)(2) Order
Nos. 7166391 and 7166392. Price testified that he also traveled
the 2 North section and personally observed all of the
kettlebottoms listed in Workman's 104(d)(2) orders. (Tr. I,
1144, 1175, 1216, 1268-86).
Having completed his inspection, Workman traveled with Gunnoe
up the No. 2 belt entry to the mine elevator, arriving on the surface
at approximately 10:30 p.m. (Tr. I, 410, 412). At approximately
11:00 p.m., a meeting was held to discuss the investigative
findings. The participants at the meeting were MSHA inspectors
Workman, Price and Gartin, state inspector Gunnoe, and Eagle Energy/
Massey Coal officials President Pete Hendricks, Vice-President
Larry Ward, superintendent Terry Walker and night shift foreman
Roger Lovejoy. At the meeting, Workman issued 104(a) Citation No.
4400559 to Walker for a violation of the mandatory safety
standard in 30 C.F.R. � 75.202(a) as a result of
inadequate roof and rib support in the 2 North
section.[3] (Gov. Ex. 14; Tr. I, 537). Workman based
Citation No. 4400559 on his observations of numerous
unsupported kettlebottoms inby the dumping point as well
as his observations of loose, unsupported coal ribs, and
entry widths exceeding the 20 feet wide entries in Eagle
Energy's approved roof control plan. (Tr. I, 546).
To abate Citation No. 4400559, the next day, on February
27, 1998, Ward instructed safety director Jeffrey Bennett
to paint any area of the roof that "looked slickensided."
(Tr. III, 1195-97). Bennett painted numerous areas of
the 2 North section roof in orange spray paint similar to
the paint that had been used on the three conditions inby
the feeder. The areas painted were then supported by
installing roof bolts and headers around the outer
perimeter of the painted areas. (Joint Ex. 1). Ward
considered these conditions to be non-hazardous
irregularities that were identified by Bennett and
supported solely for the purpose of abatement. Citation
No. 4400559 was terminated on March 2, 1998, by MSHA Inspector
Andrew J. Nunnery after the cited unsupported kettlebottoms were
fortified with roof bolts and headers. (Tr. I, 538-39).[4]
Ward testified that Citation No. 4400559 was not contested, and
that the civil penalty for this citation was paid "just purely
for economic reasons." (Tr. III, 1115-16).
The following day, on February 27, 1998, Workman and
Price returned to Eagle Energy's No. 1 Mine and inspected
the preshift and onshift examination mine books. (Gov.
Ex 5, p.14; Tr. I, 680). Workman and Price inspected the
examination reports for the preceding three days from
February 24 through February 26, 1998. (Gov. Ex
13(h)-13(w); Tr. I, 684, 1371). The section foremen
conducting the preshift and onshift examinations during this
period were Larry Saunders, Thomas Fisher and Carter Miles. During
this period they conducted 17 examinations. Not one of the ten
conditions in the 2 North section that Workman and Price had
determined was a kettlebottom, including any of those painted in
orange color inby the feeder, was noted by Saunders, Fisher or
Miles. These three individuals maintain they did not observe any
kettlebottoms during their examinations, and they all testified
that they were unaware of any painted roof conditions located
inby the feeder in the No. 2 entry.
Upon further investigation, Workman concluded that the
areas where the cited kettlebottoms were located were
mined as early as the day shift on February 24, 1998.
Workman's conclusion is based on a mine advancement map
prepared by Ward that provides the chronology for the
advancement of the working faces in the 2 North section
from the day shift on February 24, 1998, until the day
shift on February 26, 1998. (Gov. Exs. 9(a), 10).
Specifically, regarding the painted cluster of
kettlebottoms in the No. 2 entry, Ward stated that area
was mined sometime during the day shift on February 24,
1998. (Tr. III, 1089-90).
Consequently, Workman concluded Eagle Energy had
repeatedly violated the mandatory safety standards in 30
C.F.R. �� 75.360(b) and 75.362(a)(1) that require
hazardous conditions to be noted during preshift and
onshift examinations. (Gov Exs. 1, 2). Section
75.360(b) provides, in pertinent part:
(b) The person conducting the preshift
examination shall examine for hazardous conditions
. . . at the following locations:
(1) Roadways, travelways and track haulageways
where persons are scheduled, prior to the
beginning of the preshift examination, to work
or travel during the oncoming shift.
(2) Belt conveyors that will be used to
transport persons during the oncoming shift and
the entries in which these belt conveyors are
located.
(3) Working sections and areas where mechanized
mining equipment is being installed or removed,
if anyone is scheduled to work on the section or
in the area during the oncoming shift. The scope
of the examination shall include the working places,
approaches to worked-out areas and ventilation
controls on these sections and in these areas, and
the examination shall include tests of the roof,
face and rib conditions on these sections and
in these areas.
* * *
(10) Other areas where work or travel during
the oncoming shift is scheduled prior to the
beginning of
the preshift examination.
Section 75.362(a)(1) provides, in pertinent part:
At least once during each shift, or more
often if necessary for safety, a certified
person designated by the operator shall
conduct an on-shift examination of each
section where anyone is assigned to work
during the shift and any area where
mechanized mining equipment is being
installed or removed during the shift.
The certified person shall check for
hazardous conditions . . . .
On March 11, 1998, approximately two weeks after the
fatality, Workman issued 104(d)(2) Order Nos. 7166391 and
7166392 to Larry Ward for alleged "perfunctionary" (sic)
preshift and onshift examinations.[5] (Gov. Exs. 1, 2).
The orders alleged the cited violations were significant
and substantial (S&S) in nature and attributable to Eagle
Energy's unwarrantable failure.
As noted below, Eagle Energy asserts the conditions
observed by Workman and Price were non-hazardous "roof
irregularities" that were obscured by slate until
mountain bumping occurred shortly before Workman's
inspection. Eagle Energy contends the mountain bumping
caused roof sloughage that exposed the cited conditions.
However, Workman and Price noted continuous miner bit
marks on, and in the immediate vicinity of, the cited
conditions reflecting that the conditions were exposed
during the mining cycle. (Tr. I, 346-47, 351, 594, 989,
1001, 1198). Miners' representatives Casto and James
Bias also testified bit marks indicated the kettlebottoms
were exposed during mining. (Tr. II 248, 302, 304-05,
III, 212, 301-04). Moreover, Workman, Price and Casto
observed no evidence of loose roof plates, or, roof
sloughage on the mine floor, that would indicate the roof
conditions were exposed as a result of mountain bumping.
III. Eagle Energy's Defense
a. The cited conditions were not kettlebottoms
Eagle Energy contends that, with the exception of the
bolted kettlebottom cited by Workman, the remaining cited
conditions were not kettlebottoms. Eagle Energy relies
on the expert testimony of Dr. Vincent Scovazzo, an
engineer with a doctorate degree in geomechanics.
Scovazzo examined the roof of the 2 North section on
November 23, 1998, nearly nine months after MSHA's
February 1998 accident investigation. Scovazzo's
description of a kettlebottom is consistent with the
descriptions of Price and Workman. Scovazzo testified
that kettlebottoms are "easy to identify." (Tr. III,
515). They are the remains of casts of tree trunks that
are circular or cylindrical in shape. This circular or
near circular formation is totally or partially rimmed in
coal with slickensides on the rim. Although slickensides
is a characteristic of a kettlebottom, Scovazzo testified
that slickensides also occur when rock is compacted at
different rates, and he opined that slickensided rock was
strong enough to hold together. (Tr. III, 592-93).
Scovazzo testified that all of the cited roof conditions
he observed on November 23, 1998, were not kettlebottoms
with the exception of the bolted kettlebottom cited by
Workman which is "probably a kettlebottom." (Tr. III,
576). Scovazzo characterized the three painted roof
conditions inby the feeder as "some sort of abnormality"
or "roof irregularity." (Gov. Ex. 9(B),
p. 2; Tr. III, 561). Scovazzo's contemporaneous notes taken
during his observations refer to "irregularities" that "could be
kettlebottoms." (Gov. Ex. 9(B), p. 3). Although Scovazzo stated
he used the term "irregularity" as a "convenience" and that these
irregularities were "[t]o me . . . just a normal mine roof,"
Scovazzo had no explanation for why the three roof conditions
inby the dumping point were spray painted, describing the paint
as "somebody's doodling." (Tr. III, 572, 878). In this regard,
Scovazzo provided the following testimony about the photographs
in Government Exhibit 11 depicting the painted roof conditions:
Court . . . I'm talking about the three distinct circles
[painted on the roof inby the dumping point].One [circle]
is through the centerline and then there is what we've
described as a protrusion and an abnormality, whatever
that means.
Scovazzo: That being said, when I see all this paint on
the ceiling, to me, somebody's doodling .
Court: You think those are doodles?
Scovazzo: Yes. Because a lot of them - - - a lot of the
circles go around things that there's nothing there as we
discussed yesterday.
Court: All right. So [if shift foreman] Lovejoy testified
that [area] was dangered-off. It was dangered-off because
of the doodles?
Scovazzo: I have no idea.
(Tr. III, 427-28, 877-88). Scovazzo's doodling explanation was
essentially adopted by Ward who opined, "it all look[s] like
graffiti." (Tr. III, 1137-38).
Finally, although Scovazzo testified he used a mason's
hammer to determine if the material inside the formations
was different from the material outside, the photographs
taken by Bennett in Joint Exhibit 1 reveal that
Scovazzo's examination of the cited conditions was
limited by the paint applied by Bennett, as well as by
the headers that were installed over the perimeter of the
formations. In addition, observation of the roof was
also limited by rock dust.
Day shift section foremen Saunders, evening shift section
foreman Fisher, and "hoot-owl" section foreman Miles, who
performed the preshift and onshift examinations from
February 24 through February 26, 1998, as well as shift
foreman Lovejoy, superintendent Walker, and
Vice-President Ward, all denied the conditions cited by Workman
were kettlebottoms. Saunders, Fisher and Miles also denied
having seen the three painted roof conditions inby the dumping
point during their examinations. Similarly, all three section
foremen denied painting, or even seeing, the centerline that is
painted through one of the cited conditions in the No. 2 entry
inby the dumping point. (Gov. Ex. 11(A), (B), (C) and (E)).
Although Saunders testified continuous miner operators and other
miners sometimes paint centerlines, Bias and Casto, and Lovejoy,
testified mine foreman are responsible for drawing centerlines.
(Tr. II, 248, 386, III, 62, 445).
Saunders was the day shift foreman on February 24, 1998, when the
area containing the painted roof conditions observed by Workman
was mined.
With respect to the nature of the cited conditions,
Lovejoy opined the cited conditions were "visual
irregularities" as distinguished from "structural
irregularities." (Tr. III, 368-69). However, Lovejoy
admitted there are roof irregularities that require
supplemental support. (Tr. III, 383-84). In fact, Lovejoy
conceded that one of the cited painted roof conditions that appears
to be protruding from the roof with cracks around it 'could very
well be' hazardous. (Tr. III, 428-32). Lovejoy also conceded he
could not tell if the painted areas inby the dumping point
photographed in Gov. Ex. 11 were kettlebottoms because the
conditions were obscured by the paint. (Tr. III, 435-36).
Superintendent Walker opined the cited conditions "looked like
just slick pieces of rock where the slate had just dropped off
them," but they were not kettlebottoms. (Tr. II, 575).
b. The cited conditions were not visible prior to February 26, 1998
Even if the cited conditions were kettlebottoms, Eagle
Energy asserts the conditions were not detectable when
the pertinent preshift and onshift examinations were
conducted from February 24 through February 26, 1998,
because they were under the mine roof's surface. In this
regard, Eagle Energy argues that, "[s]ince the Secretary
has no witnesses to establish that the alleged
kettlebottoms were visible during the pertinent time
period, the Court must look to the Respondent's witnesses
to establish if the roof conditions were visible." (Eagle Energy Br.
at p. 24). Thus, Eagle Energy heavily relies on the exculpatory
testimony of Fisher, Saunders and Miles that adequate
examinations were conducted, and, that there were no visible
kettlebottoms, including the three painted conditions inby the
dumping point. For example, Eagle Energy notes that Saunders
testified he "takes his time and occasionally hammers the roof to
detect if there is any loose material." (Tr. II, 363-64).
Given the testimony of Eagle Energy management that they
were unaware of the cited conditions, Eagle Energy
contends that the roof formations cited in Workman's
104(d)(2) orders were not noted on preshift or onshift
examinations because they "became more visible on
February 26, 1998, because of the geological events of the day."
(Eagle Energy Br. at p. 25). Specifically, Eagle Energy argues
that mountain bumping on February 26, 1998, caused obscured roof
conditions to become visible to Price and Workman because of roof
sloughage.
It is unclear how Eagle Energy's roof sloughage theory
applies to the three painted roof conditions. Moreover,
the cited kettlebottom that was bolted in the center
obviously existed for several shifts preceding Workman's
inspection.
IV. Further Findings and Conclusions
a. Fact of Occurrence of the Violations
The threshold issue is whether the conditions cited by
Workman were hazardous kettlebottoms that required
supplemental support. In addressing this issue, I note that
Eagle Energy has made two damaging admissions. First, I credit
Workman's testimony that
Pete Hendricks, president of Eagle Energy's parent corporation,
acknowledged seeing the kettlebottoms and stated, "that's what I
pay my people to do is support these kettlebottoms."
(Tr. I, 297-98). Second, Eagle Energy did not contest, and has
paid the civil penalty for,
104(a) Citation No. 4400559 issued by Workman on February 26,
1998, for hazardous roof conditions, including kettlebottoms in
the 2 North section. I cannot ignore the fact that
Eagle Energy has paid a civil penalty for the same roof
conditions it now contends did not exist. Ward's explanation,
that Citation No. 4400559 was not contested "for economic
reasons," does nothing to lessen the evidentiary significance of
this admission.
Notwithstanding the above admissions, the evidence amply
supports the conclusions of Workman, who has 45 years of
experience in the mining industry, and Price, who has 27
years of mining experience, that the cited conditions
were kettlebottoms. In reaching this conclusion I note
that Scovazzo testified kettlebottoms are easy to identify.
Moreover, kettlebottoms are common in West Virginia and,
more importantly, they are a common occurrence in
Eagle Energy's Mine No. 1. In this regard, Casto testified
without contradiction "there is (sic) kettlebottoms throughout
Eagle Energy's mines. . . . They are everywhere." (Tr. II,
204). Significantly, Scovazzo's description of a kettlebottom
comports with the descriptions provided by Price and Workman. It
is noteworthy that Price and Workman had an opportunity to view
the cited conditions before they were spray painted for abatement
purposes and/or supported with headers that conceal substantial
portions of the slickensided outer perimeters of the formations.
In this regard, Ward testified:
Your Honor, we put up probably 100 additional bolts
to make sure we covered everything. I mean, if it had
small slickensided areas we put up bolts because we
were trying to cover everything. . . . Anything like
(sic) looked slickensided we tried to cover.
(Tr. III, 1196).
Finally, Scovazzo's doodling explanation, and Ward's graffiti
conclusion, with respect to the three painted circles in the No. 2 entry,
are, to be charitable, unavailing. The conclusions of Scovazzo and
Ward are particulary suspect in view of Ward's instructions to Bennett
to danger-off the area inby the feeder. Moreover, Ward instructed
Bennett to highlight the cited conditions using the identical
method of orange spray paint that was used inby the feeder.
(Tr. III, 1195-97). Shift foreman Lovejoy also testified that he
used orange spray paint to highlight some of the cited
conditions. (Tr. III, 363-64, 408-12). Thus, when viewed in
context, Scovazzo's doodling theory negatively impacts on his
credibility as an expert witness. United States v. Cutler, 58
F.3d 825, 836 (2nd Cir. 1995) (bias of an expert witness is a
proper matter to be considered in determining the weight to be
given to expert testimony). See also Sartor v. Arkansas Natural
Gas, 321 U.S. 620, 627-28 (1944); Webster v. Offshore Food Serv.,
434 F.2d 1191, 1193 (5th Cir. 1970); Massey v. Gulf Oil, 508 F.2d
92, 94 n.1 (5th Cir. 1975) cert. denied, 423 U.S. 838 (1975). In
addition, based on the testimony concerning the characteristics
of kettlebottoms, I find the photographs of the cluster of three
painted conditions in Gov. Ex. 11, as well the photographs taken
by Bennett in Joint Ex. 1, support, rather than detract from, the
determinations of Workman and Price that the cited conditions
were kettlebottoms.
Since it is undisputed that kettlebottoms are hazardous conditions
that require supplemental support, it follows that the failure to note
visible kettlebottoms during preshift and onshift examinations
constitutes a violation of the cited mandatory safety standards in 30
C.F.R. �� 75.360(b) and 75.362(a)(1). However, the issue of duration
remains. For, if the conditions were obscured by slate and
revealed because of mountain bumping that occurred immediately
prior to Workman's inspection , the conditions could not have
been noted by the preshift and onshift examiners.
In addressing the issue of duration, I note that it is
not surprising that Eagle Energy's section foreman and
other management personnel have denied knowledge of
unsupported kettlebottoms, including those painted inby
the dumping point, given the fact that a fatal roof
accident had just occurred. Thus, I cannot infer that
the kettlebottoms were not observable simply because
Eagle Energy's witnesses deny that they were seen. For, in the
final analysis, at least three of the cited roof conditions were
seen prior to Workman's arrival - - - by the person who painted them.
Nevertheless, the burden of proof that the kettlebottoms
were visible and should have been noted by the preshift
and onshift examiners remains with the Secretary.
However, the Secretary does not have to prove, as Eagle
Energy suggests, when the cited roof conditions were
exposed. Rather, the Secretary must show "that it was
more likely than not" that the conditions observed by
Workman were visible during the relevant 15 preshift and
onshift inspections beginning with the onshift conducted
on the day shift of February 24, through the preshift for
the night shift conducted on February 26, 1998. Enlow
Fork Mining Company, 19 FMSHRC 5, 13, n.10 (January
1997).
In this case, the question of the duration of the
unsupported kettlebottoms must be resolved by
circumstantial evidence. In this regard, the Commission
has recognized that the Secretary may establish a
violation by inference. Mid-Continent Resources, 6
FMSHRC 1132 (May 1984). However, the inference must be
inherently reasonable, in that there must be a rational
connection between the collateral evidentiary facts and
the ultimate fact to be inferred. Id. at 1138.
Here, the Secretary relies on several collateral
evidentiary facts to infer that the painted cluster of
kettlebottoms was exposed during the day shift on
February 24, 1998, when that area of the No. 2 entry was
mined. Namely, the centerline, normally drawn by the
section foreman after an entry is mined, was painted
through one of the three painted kettlebottoms. In
addition, there were continuous miner bit marks in the
kettlebottoms indicating the formations were exposed when
the area was mined. Finally, the roof plates in the
vicinity of the painted kettlebottoms were tight to the
roof, and there was no evidence of roof sloughage on the
floor to indicate the conditions had been recently
exposed because of mountain bumping.
In sum, the collateral facts relied upon by the Secretary
consisting of a centerline, bit marks, tight roof plates,
and no roof sloughage, clearly provide a rational basis
for inferring the painted cluster of kettlebottoms in the
No. 2 entry was exposed during the normal mining cycle on
the day shift of February 24, 1998. Similarly, the same
evidentiary facts with regard to bit marks, tight roof
plates and no evidence of roof sloughage, support the
conclusion that the remaining cited unpainted roof
conditions were exposed during the normal mining cycles
between February 24 and February 26, 1998. Having
established, through circumstantial evidence, that it "is
more likely than not" that the cited kettlebottoms
existed as early as the day shift on February 24, 1998,
the Secretary has demonstrated the preshift and onshift
examiners' repeated failures to note them from February
24 through February 26, 1998, constitute violations of 30
C.F.R. �� 75.360(b) and 75.362(a)(1).
It should be noted that Eagle Energy's circumstantial
case, that mountain bumping was responsible for revealing
each and every kettlebottom cited by Workman immediately
prior to Workman's arrival at the mine, stretches
credulity and must be rejected. In this regard, Ward
conceded, while mountain bumping may affect a particular
section of a roof on a case-by-case basis, it was a
stretch to conclude that mountain bumping was the sole
explanation for all of the kettlebottoms that were
observed by Workman. (Tr. III, 1150-1154). Moreover,
excluding the painted kettlebottoms for a moment, Eagle
Energy's mountain bumping speculation does not address
the relevant bit marks and tight roof plates, or, the
cited kettlebottom with the roof bolt in the center.
To support its mountain bumping explanation, Eagle Energy
relies on a statement made by Workman during an April 21,
1998, health and safety conference that was made in
response to Ward's belief that "slate could obscure
kettlebottoms." (Tr. III, 1230). At trial, Workman
explained, when he was at the safety conference, he
agreed with Ward that "slate could obscure kettlebottoms
because there's nothing impossible, [although] it might
be incredible." (Tr. III, 1230-31). Workman's
acknowledgment that slate "could" have obscured all of
the cited kettlebottoms, based on his assumption that
anything was remotely possible, does not support Eagle
Energy's circumstantial case that it was more likely than
not that the cited conditions had been obscured.
Returning our attention to the painted cluster of
kettlebottoms, Eagle Energy has failed to present
evidence concerning when, and by whom, the cluster was
painted. Rather, Eagle Energy suggests that these
kettlebottoms may have been exposed by mountain bumping,
and then painted, only minutes before the fatal accident
occurred at approximately 2:50 p.m. on
February 26, 1998. This theory is rejected as implausible.
Moreover, under the well settled "missing witness"
evidentiary rule, the failure of a party to call a known
non-hostile person who has direct knowledge of a fact in
issue raises the inference that the testimony would be
unfavorable to that party. Richardson on Evidence, � 92
at 65-68, 10th (ed. 1973). York v. American Telephone &
Telegraph, 95 F.3d 948 (10th Cir. 1996); Wilson v.
Merrell Dow Pharmaceuticals, Inc, 893 F.2d 1149, 1150
(10th Cir. 1990); Borror v. Herz, 666 F.2d. 569, 573 (3rd
Cir. 1981); NLRB v. Laredo Coca-Cola Bottling Co., 613
F.2d 1338 (5th Cir. 1980); NLRB v. Dorn's Transportation
Co., 405 F.2d 706 (2nd Cir. 1969). In Wilson v. Merrell
Dow, the Court recognized the four factors that must be
present to infer that a missing witness's testimony would
have been adverse to a party. The four factors are:
(1) the party must have the power to produce
the witness, see, e.g., Sutton, 732 F.2d at
1492; 2 J. Wigmore, Evidence Trials at Common
Law � 286 J. Chadbourn rev. ed. 1979 & Supp.
1989;
(2) the witness must not be one who would ordinarily
be expected to be biased against the party; see id.
� 287, at 202 & n. 1;
(3) the witness's testimony must not be "comparatively
unimportant, or cumulative, or inferior to what is
already utilized" in the trial, see id. � 287, at
202-03 (emphasis omitted); and
(4) the witness must not be equally available to
testify for either side, see, e.g., Sutton, 732
F.2d at 1492; Quad Constr., Inc. v. William A.
Smith Contracting Co., 534 F. 2d 1391, 1394
(10th Cir. 1976); 2 J. Wigmore, supra, at � 288.
893 F.2d at 1151 (footnote omitted).
Here, Eagle Energy had exclusive access and control of
the 2 North section from February 24 through February 26,
1998. Eagle Energy must be held accountable for knowing
who painted the centerline on the roof that runs through
one of the cited painted kettlebottoms. (See Gov. Ex.
11). Having failed to call that individual subjects
Eagle Energy to the adverse inference that the cited
conditions were painted, contemporaneous with the
centerline, during the mining cycle on the day shift on
February 24, 1998. I am cognizant that the missing
witness rule requires that the missing witness must be
known. In this case the missing witness is known, or
should be known, to Eagle Energy - - - he is the employee
who was responsible for painting the centerline in the
No.2 entry photographed in Gov. Ex. 11. Such knowledge
is exclusively available to Eagle Energy because the
centerline was painted by its foreman, or at its
foreman's direction. United States v. Caccia, 122 F.3d
136, 139 (2nd Cir. 1997) quoting Unites States v.
Rollins, 487 F.2d 409, 412 (2nd Cir. 1973) (availability
of missing witness depends on relationship to the
parties). Eagle Energy cannot escape the adverse
inference simply by denying that it knows the identity of
the employee who was responsible for painting the
centerline, regardless of whether its ignorance is
feigned or real. (Tr. II, 245-46, 254-57). Any other
conclusion would eviscerate this important evidentiary
rule.
b. Significant and Substantial
A violation is properly designated as S&S in nature if,
based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard
contributed to by the violation will result in an injury
or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April
1981). In Mathies Coal Co.,
6 FMSHRC 1 (January 1984), the Commission 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 [by the violation] will result
in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious
nature. 6 FMSHRC at 3-4.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).
In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129,
(August 1985), the Commission explained its Mathies
criteria 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).
The Commission subsequently reasserted its prior
determinations that as part of any "S&S" finding, the
Secretary must prove the reasonable likelihood of an
injury occurring as a result of the hazard contributed to
by the cited violative condition or practice. Peabody
Coal Company, 17 FMSHRC 508 (April 1995); Jim Walter
Resources, Inc., 18 FMSHRC 508
(April 1996).
Resolution of whether a particular violation of a mandatory
safety standard is S&S in nature must be made assuming continued
normal mining operations. U.S. Steel Mining,
7 FMSHRC 1125, 1130 (August 1985). Thus, consideration must be
given to, both the time frame that a violative condition existed
prior to the issuance of citation, and the time that
it would have existed if normal mining operations had continued.
Bellefonte Lime Co., 20 FMSHRC 1250 (November 1998); Halfway,
Inc, 8 FMSHRC 8, 12 (January 1986).
Thus, the fundamental question is whether the repeated
failure of Eagle Energy's preshift and onshift examiners
to note hazardous roof conditions that required
supplemental support during the relevant 15 examinations
of the 2 North section substantially contributed to the
cause and effect of a roof fall accident. Virtually
every one of the Secretary's, as well as Eagle Energy's,
witnesses, including Scovazzo, agreed that kettlebottoms
are hazardous roof conditions that require supplemental
support. For, example, Ward, Eagle Energy's Vice-
President, testified, "[i]t's common knowledge in the
mining industry that kettlebottoms are a hazard and
should be treated as such." (Tr. III, 1106). A 1992
information circular on coal mine groundfall accidents,
published by the U.S. Department of the Interior, Bureau
of Mines, and proffered by the Secretary, notes there is
an abundance of kettlebottoms in southern West Virginia
and eastern Kentucky that have "been responsible for
numerous injuries and fatalities." (Gov. Ex., p. 8).
An Atlas of Coal Geology introduced in evidence by Eagle Energy
states kettlebottoms can fall without warning causing injuries or
fatalities and that "identification [of kettlebottoms] and
subsequent support during mining is critical." (Resp.'s Ex. 3,
p. 2).
Thus, it is undisputed that the slickensided material
surrounding kettlebottoms could cause kettlebottoms to
fall from the roof at any moment without warning. (Tr.
III, 373). Significantly, the three painted
kettlebottoms were only approximately 27 feet inby the
feeder. The feeder area is not a remote area of a mine.
Rather, it is one of the more heavily traveled areas of a
mine. (Tr. III, 1124-25). Thus, the location of some of
the cited kettlebottoms increased the exposure of miners
to a roof fall accident. In addition, the likelihood of
an event causing serious injury, i.e., a kettlebottom
fall, contributed to by the subject violations, was
heightened by the presence of mountain bumping.
Although the mass of a particular kettlebottom cannot be
determined because it is concealed by the roof,
kettlebottoms can be very heavy and are capable of
inflicting serious, if not fatal, injuries. Given the
fact that kettlebottoms can unexpectedly fall at any
time, the Secretary has demonstrated that there is a
reasonable likelihood that the roof hazard contributed to
by Eagle Energy's repeated inadequate preshift and
onshift examinations will result in injury, and, that
that injury will be reasonably serious, if not fatal, in
nature. Accordingly, the Secretary's S&S designations
for the cited 30 C.F.R. �� 75.360(b) and 75.362(a)(1)
violations shall be affirmed.
c. Unwarrantable Failure
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 (Dec. 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 (Feb. 1991); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
(approving the Commission's unwarrantable failure test).
The Commission has identified various factors in
determining whether a violation is unwarrantable,
including the extent of the violative condition, the
length of time that it has existed, whether the violation
is obvious, whether the operator has been placed on
notice that greater efforts are necessary for compliance,
and the operator's efforts in abating the violative
condition. Windsor Coal Company, 21 FMSHRC at 1000;
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988); Kitt Energy Corp., 6 FMSHRC 1596 1603 (July 1984).
The Commission also considers whether "the violative
condition . . . poses a high degree of danger." Windsor
Coal Company, 21 FMSHRC at 1000; BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1243-44 (August 1992). The Commission's
indicia for determining whether a violation is
attributable to an operator's unwarrantable failure will
be taken in turn.
i. Extent of the Violative Condition
The degree of negligence associated with the preshift
and onshift examiners' failure to note hazardous roof
conditions is directly related to the extent of the
hazardous conditions. Although the cited conditions were
extensive, in that there were nine cited kettlebottoms, I
am not unmindful that the cited conditions were
relatively small in size, ranging from approximately six
to twelve inches in diameter. Conditions that are
readily apparent when being observed in a photograph
utilizing a flash attachment, may escape scrutiny in the
normal mining environment using a cap lamp. Thus, given
the relatively small size of the cited conditions,
ordinarily, I would be hesitant to attribute their lack of
disclosure to high negligence.
However, here, the painted kettlebottoms convinces me
that Eagle Energy is entitled to no such benefit of the
doubt. The bit marks and centerline reflect the
kettlebottoms were revealed and painted during the mining
cycle on the day shift of February 24, 1998. Yet,
despite being painted to highlight the fact that
supplemental support was required, the conditions went
repeatedly unnoted during approximately 15 preshift and
onshift examinations. Under such circumstances, even the
failure to note hazardous conditions that were marked for
remedial action during the course of one preshift or
onshift examination may constitute unwarrantable conduct.
Consequently, the Eagle Energy's inaction in the face of
highlighted hazardous roof conditions supports the
Secretary's unwarrantable charge.
ii. Duration
As previously discussed, the evidence with respect to the
painted cluster of kettlebottoms in the No. 2 entry
reflects the cited conditions existed as early as the day
shift on February 24, 1998. The purpose of preshift and
onshift examinations is to identify hazardous conditions
that require remedial action. Eagle Energy's failure to
note any of the cited hazardous roof conditions,
including the painted conditions, in the 15 preshift and
onshift examinations conducted from foreman Larry
Saunders' onshift examination between 7:30 a.m. and 3:30
p.m. on February 24, through the last preshift
examination conducted by Saunders at 1:30 p.m. during the
day shift on February 26, is indicative of an
unwarrantable failure.
iii. Whether the Violation was Obvious and its Degree of Danger
Some of the cited roof hazards were spray painted in
reflective orange paint. This method of painting is
commonly used by Eagle Energy to alert personnel to the
fact that there are kettlebottoms that need additional
roof support. As previously noted, this method of spray
painting was used by Bennett to highlight the cited
conditions that needed supplemental support for the
purposes of abatement of Workman's 104(a) Citation No.
4400559. In addition, there was an apparent centerline
drawn through one of the cited painted roof conditions.
Despite the orange paint and centerline, all of the
cited conditions were repeatedly overlooked by foremen
conducting preshift and onshift exams. Such repeated
oversights were extremely dangerous given the
unpredictable nature of kettlebottoms.
iv. History of Previous Violations
The evidence reflects Eagle Energy was cited for 14
violations of 30 C.F.R. �� 75.360(b) and 75.362(a)(1)
during the 18 month period prior to the issuance of the
March 1998, orders in issue. Absent evidence concerning
the nature and extent of these violations, I am unable to
determine whether Eagle Energy's compliance history
should have placed it on notice that greater efforts were
required to ensure the adequacy of its preshift and
onshift examinations.
As a final matter, Eagle Energy's purported lack of
knowledge about when, why, and by whom, the three circles
and two lines photographed in Gov. Ex. 11 were painted on
the roof of the No. 2 entry is troubling.[6] An operator
is responsible for the training, supervision and
discipline of its employees. Eagle Energy's reported
complete lack of knowledge about the painted conditions
in the No. 2 entry adversely impacts on the adequacy of
its supervision and training, and further evidences an
indifference indicative of unwarrantable conduct.
Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August
1982); Western Fuels - Utah, Inc., 10 FMSHRC 256, 261
(March 1988). Thus, the evidence clearly reflects the
requisite unjustifiable conduct to support an
unwarrantable failure. Accordingly, 104(d)(2) Order Nos.
7166391 and 7166392 will be affirmed.
V. Civil Penalty
It is well settled that the Commission assesses civil
penalties de novo and is not bound by the Secretary's
proposed assessments. Topper Coal Co., 20 FMSHRC 344,
350 n.8 (April 1998); Sellersburg Stone Co., 5 FMSHRC
287, 291, (March 1983), aff'd 736 F.2d 1147 (7th Cir. 1984). Here,
the Secretary urges me to impose a civil penalty greater than the
$3,000 civil penalty initially proposed by the Secretary for each
of the 104(d) orders in issue. (Secretary's Br. at p. 34).
In determining the appropriate civil penalty to be assessed,
Commission Rule 30, 29 C.F.R. � 2700.30, requires the Judge to consider
the statutory criteria set forth in 110(i) of the Mine Act, 30 U.S.C.
� 820(i). Section 110(i) provides, in pertinent part, in assessing
civil penalties:
the Commission shall consider the operator's history
of previous violations, the appropriateness of such
penalty to the size of the business of the operator
charged, whether the operator was negligent, the
effect on the operator's ability to continue in
business, the gravity of the violation, and the
demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of a violation.
a. Size of Operator and Ability to Remain in Business
The parties have stipulated that Eagle Energy is a large
operator and that the maximum $55,000 penalty that can be
imposed under 30 U.S.C. � 820(a) will not affect Eagle
Energy's ability to remain in business.
b. Negligence
With respect to negligence, while the evidence may be
insufficient to warrant a finding of a willful disregard,
there is ample evidence to suggest a reckless disregard
given Eagle Energy's repeated disregard of hazardous roof
conditions in a heavily traveled area of the mine that
were highlighted for additional roof support.
c. Gravity
The gravity penalty criteria contained in section 110(i)
requires an evaluation of the seriousness of the
violation. Hubb Corporation, 22 FMSHRC 606, 609 (May
2000) citing Consolidation Coal Co., 18 FMSHRC 1541, 1549
(September 1996); Sellersburg, 5 FMSHRC at 294-95. In
evaluating the seriousness of a violation, the Commission
focuses on "the affect of a hazard if it occurs."
Consolidation Coal Co., 18 FMSHRC at 1550. Here,
unsupported portions of roof that could fall at any
moment, located in a heavily traveled area of the mine,
were permitted to exist even after they had been
identified by orange spray paint. If the cited roof
abnormalities were to fall from the roof, there is a
reasonable likelihood that serious, if not fatal,
injuries will occur. Consequently, the cited violations
are of extremely serious gravity.
d. History of Previous Violations
During the period September 1, 1996, through February 28,
1998, Eagle Energy was cited for approximately 453 violations,
including 14 violations of the mandatory safety standards in 30 C.F.R.
�� 75.360(b) and 75.362(a)(1). (Gov. Ex 3). In applying the history
of prior violations penalty criterion, the Commission has noted that
it is the operator's general history of violations, not just its
history of similar violations, that should be considered. Cantera
Green, 22 FMSHRC 616, 623 (May 2000) (citations omitted). Eagle
Energy's history of 453 violations during the approximate 18
month period preceding the issuance of the subject 104(d) orders
constitutes an extensive violative history.
e. Good Faith Efforts at Abatement
There is no evidence to suggest that Eagle Energy did not
endeavor to timely abate the cited violations.
When considering the penalty criteria in their entirety,
I agree with the Secretary that the evidence in this case
warrants a higher penalty than the $3,000 civil penalties
initially proposed. It is one thing to overlook
relatively small hazardous roof conditions during
preshift and onshift examinations. However, Eagle Energy
has offered no plausible evidence to justify, or
otherwise mitigate, its failure to note the highlighted
hazardous roof conditions in close proximity to the
dumping point. Accordingly, the evidence establishes a
compelling case for raising the proposed civil penalty.
Consequently civil penalties of $6,000 shall be imposed
for each of the 104(d) orders in issue in these
proceedings.
As a final note, I have exercised restraint. Obviously,
even a doubling of the proposed civil penalty, given
Eagle Energy's large operator size, will not have a
significant financial impact. However, hopefully, this
relatively small increase in penalties will have a
deterrent effect and will encourage future compliance.
ORDER
Accordingly, IT IS ORDERED that 104(d)(2) Order Nos.
7166391 and 7166392 ARE AFFIRMED.
Consequently , IT IS FURTHER ORDERED that Eagle Energy,
Inc.'s contests of 104(d)(2) Order Nos. 7166391 and
7166392 ARE DENIED.
IT IS FURTHER ORDERED that Eagle Energy, Inc., shall pay
a total civil penalty of $12,000 in satisfaction of
104(d)(2) Order Nos. 7166391 and 7166392. Payment shall
be made within 40 days of the date of this decision.
Upon timely payment of the $12,000 civil penalty,
IT IS ORDERED that the contest proceedings in Docket Nos. WEVA
98-72-R and WEVA 98-73-R, and the civil penalty matter in Docket
No. WEVA 98-123, ARE DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
David J. Hardy, Esq., Julia K. Shreve, Esq., Jackson & Kelly,
P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
Howard N. Berliner, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA
22203 (Certified Mail)
James Bowman, Conference and Litigation Representative, Mine
Safety and Health Administration, 100 Bluestone Road, Mount Hope,
West Virginia 25880-1000 (Certified Mail)
/mh
**FOOTNOTES**
[1] References to the hearing transcript for the September,
December and February sessions will be designated as volumes "I,
II and III", respectively, followed by the transcript page
number.
[2] Although Workman observed ten alleged kettlebottoms,
Workman only cited nine kettlebottoms in 104(d)(2) Order Nos.
7166391 and 7166392. Eagle Energy concedes one of the cited
conditions was a kettlebottom. (Eagle Energy Br. at p. 8). It
was the condition supported by a roofbolt through the center.
The Secretary alleges it was supported inadequately.
[3] Section 75.202(a) provides:
The roof, face and ribs of areas where persons
work or travel shall be supported or otherwise
controlled to protect persons from hazards
related to falls of the roof, face or ribs and
coal or rock bursts.
[4] To support its claim that the cited conditions were not
hazardous, Eagle Energy asserts MSHA permitted "the cited area to
be traveled without impediment on February 27, 1998, up until the
issuance of [104(d)(2) Order Nos. 7166391 and 7166393] on March
11, 1998 . . ., " despite MSHA's assertion that the kettlebottoms
could fall at any moment. (Eagle Energy Br. at p. 14). Eagle
Energy is mistaken. Mine operations were suspended after the
February 26 fatality. The cited kettlebottoms were supported as
early as February 28, 1998, when Ward instructed his management
staff "to clear up the violations [cited in 104(a) Citation No.
4400559]." (Tr. III, 1059-60). Ward used management personnel
because "the workforce [was] off due to the fatality." (Tr. III,
1060). Citation
No. 4400559 was terminated at 4:35 a.m. on March 2, 1998, after
the kettlebottoms were supported. (Gov. Ex. 15).
[5] Although the subject 104(d) orders allege the preshift
and onshift examinations were perfunctory in nature, the
Secretary need only establish that the examinations were
inadequate to prevail on the issue of the fact of the violations.
[6] The photographs in Gov. Ex. 11 depict two painted lines
on the roof. The evidence reflects one line was drawn as a
centerline, and the other line was drawn as a belt hanger line.