.
S&H MINING, INC.
November 30, 1995
SE 93-9
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 30, 1995
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. SE 93-9
: SE 93-10
S&H MINING, INC. : SE 93-98
BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1988)
("Mine Act" or "Act"), involve two roof control plan violations.
Administrative Law Judge Jerold Feldman concluded that the first
violation was not significant and substantial ("S&S") and that the
second violation was not the result of unwarrantable failure. 15
FMSHRC 2196, 2198-99 (October 1993) (ALJ). The Commission granted
the Secretary of Labor's petition for discretionary review, which
challenges those determinations. For the reasons that follow, we
vacate and remand.
I.
Factual and Procedural Background
During an inspection at the No. 7 underground coal mine of
S&H Mining, Inc. ("S&H"), an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued two
withdrawal orders pursuant to section 104(d) of the Mine Act, 30
U.S.C. � 814(d), alleging violations of 30 C.F.R. � 75.220
for failure to comply with the approved roof control plan.[1]
The inspector designated the alleged violations to be S&S and
the result of unwarrantable failure. The operator stipulated
to the occurrence of both violations but contested the S&S
and unwarrantable failure designations.
**FOOTNOTES**
[1]: Section 75.220 states in relevant part:
(a)(1) Each mine operator shall develop and
follow a roof control plan . . . .
A. Order No. 3382962
On July 22, 1992, MSHA Inspector Don McDaniel, accompanied
by Charles White, superintendent of S&H mines, observed a
coal pillar that had not been mined in conformity with the
roof control plan. 15 FMSHRC at 2199. Although the plan
limited initial pillar cuts to a width of 13 feet, the
initial cut of the pillar had been made about 20 feet
wide.[2] Id.; Tr. II 67-68.[3] White told Inspector
McDaniel that the pillar had not been mined according to the
plan because the continuous mining machine was too large to
be maneuvered to cut the pillar according to the plan's cut
sequence. 15 FMSHRC at 2199; Tr. I 187, 192-93. Following
McDaniel's issuance of a section 104(d) order, S&H's roof
control plan was revised to permit it to round off a corner
of the pillar and then make an initial pillar cut 15 feet
wide. 15 FMSHRC at 2199; Tr. II 77-78. The judge concluded
that this violation was not S&S. 15 FMSHRC at 2199.
B. Order No. 3382964
On the following day, Inspector McDaniel, again accompanied
by White, noticed section foreman Steve Phillips operating a
continuous miner to clean up loose waste material ("gob") in
an entry. 15 FMSHRC at 2198; Tr. I 199. Phillips loaded a
shuttle car with gob and, as another shuttle car arrived,
positioned the miner against the side of a pillar and began
cutting coal without having first installed roof support
timbers. Tr. I 199-200. Before Phillips was stopped, he
had made a 12-foot-wide, 38-inch-deep, wedge-shaped cut in
the pillar. 15 FMSHRC at 2198; Tr. I 200, 204. Phillips
told McDaniel that he was still cleaning up gob and had cut
the pillar unintentionally. Tr. I 205. The judge concluded
that this violation was not the result of unwarrantable
failure. 15 FMSHRC at 2198.
II.
Disposition
A. Whether the violation cited in Order No. 3382962 was S&S
The judge concluded that the violation was not S&S
because the roof control plan was subsequently modified to
"essentially conform" to the operator's method of initial
pillar cut, thus precluding him from finding that the cited
"mining . . . was structurally unsound." 15 FMSHRC
at 2199. He also found the evidence did not show that
miners were exposed to unsupported roof. Id.
**FOOTNOTES**
[2]: The pillars are approximately 35 feet square. Tr. I
182, 205.
[3]: The hearing was conducted on September 28 and 29,
1993. "Tr. I" refers to the September 28 hearing and "Tr. II"
refers to the September 29 hearing.
The Secretary argues that the judge's S&S determination is
not supported by substantial evidence and is contrary to
precedent. S. Br. at 9-12. He asserts that the judge
failed to address McDaniel's testimony regarding the danger
of roof fall and the exposure to hazards of miners who
traveled in this area. Id. at 10-11. He also contends
that, contrary to the judge's impression, 15 FMSHRC at 2199,
the subsequently revised roof control plan would not have
allowed the operator to make the pillar cut for which it was
cited. Id. at 11-12.
S&H responds that substantial evidence supports the judge's
S&S determination. S&H Br. at 8-9. It points out that,
although Inspector McDaniel testified generally that the
violation would expose miners to the hazard of roof fall, he
responded negatively when the judge asked him whether there
was exposure to unsupported roof in connection with the
violation. Id. at 8. S&H further asserts that the 20-foot-
wide cut would not have violated the modified roof control
plan. Id. at 9.
The S&S terminology is taken from section 104(d) of the Mine
Act, 30 U.S.C. � 814(d), 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 (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), aff'g 16 FMSHRC 540,
541-43 (March 1994) (ALJ); Austin Power, Inc. v. Secretary of
Labor, 861 F.2d 99, 103 (5th Cir. 1988), aff'g 9 FMSHRC 2015,
2021 (December 1987) (approving Mathies criteria). An evaluation
of the reasonable likelihood of injury should be made assuming
continued normal mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).
We conclude that the judge's S&S determination is contrary
to law. The judge failed to set forth or apply the Mathies
criteria and failed to examine the likelihood of injury in the
context of continued mining operations as set forth in U.S. Steel.
Further, his findings are not supported by substantial
evidence.[4]
The first and second Mathies elements are established: S&H
concedes the violation of its roof control plan and the record
contains unrebutted evidence that the violation created a roof
fall hazard. Tr. I 8-9, 207. With respect to the fourth Mathies
element, the undisputed evidence clearly establishes that injury
resulting from a roof fall would be serious in nature. Tr. I
207; Gov't Ex. 14.
The only issue in dispute, therefore, is the third element
of the Mathies criteria, whether there was a reasonable
likelihood that the hazard contributed to will result in an
injury. The judge found that the operator's use of an initial
20-foot pillar cut was not structurally unsound because the roof
control plan was subsequently modified to "essentially conform"
to that method of cutting. 15 FMSHRC at 2199. McDaniel
testified without contradiction, however, that the modified roof
control plan requires the operator to limit the initial cut to a
width of 15 feet. Tr. II 77-78. Thus, the record does not
support the judge's implied finding that a 20-foot-wide cut was
permitted under the modified roof control plan and, hence, that
the operator's mining method did not compromise roof support.
The judge's finding that miners were not exposed to
unsupported roof is also without evidentiary support. 15 FMSHRC
at 2199. McDaniel testified that the area where the violation
occurred was a travelway and that miners in the area were exposed
to the hazard of roof fall. Tr. I 188, 207, Tr. II 61-62. He
explained, without contradiction, that failure to follow the cut
sequence in the roof control plan could cause a roof fall. Tr. I
207. Subsequently, the judge asked McDaniel, "Do you have an
opinion whether or not there was any exposure of unsupported roof
for the [order] . . . at issue?" Tr. II 80. McDaniel answered
"No." Id. The judge continued: "They were not under unsupported
roof?" Id. McDaniel answered "No, sir." Id. These questions
apparently referenced exposure to unsupported roof at the time
McDaniel issued the order. The judge's determination that there
was no evidence of exposure is based on McDaniel's responses to
his questions, even though McDaniel's earlier testimony made
clear his opinion that the overcutting posed a continuing hazard
to miners using the affected travelway. Commission precedent
requires that the likelihood of injury be examined in the context
of continued normal mining operations. U.S. Steel, 7 FMSHRC at
1130. The judge's decision does not indicate that he considered
the likelihood of such exposure during continued operations.
Accordingly, we vacate the judge's determination that the
violation was not S&S and remand for further analysis of the
third Mathies element in light of Commission precedent and the
record evidence.
B. Whether the violation cited in Order No. 3382964
resulted from unwarrantable failure
The judge concluded that the violation was not the result of
unwarrantable failure because he found it "inconceivable" that
the continuous miner operator, knowing that the inspector was
present, would intentionally mine a pillar without setting
timbers. 15 FMSHRC at 2198. He also determined that, in view of
the "angle and size of the cut (38 inches in width),"[5] the
Secretary failed to prove the violation was "a willful rather
than a negligent act." Id.
The Secretary argues that the judge's finding that it was
inconceivable Phillips, knowing McDaniel was present, would mine
a pillar without setting timbers has no support in the record.
S. Br. at 7-8. The Secretary also contends that the judge drew
an unreasonable inference in finding the angle of the cut
indicated that the operator's mining was unintentional. Id. at
5-6 n.3. The Secretary points out that the judge failed to
discuss the 12-foot width of the cut, and that the cut was made
by a foreman in the presence of a mine supervisor. Id. at 5-7.
He asserts that the judge erred as a matter of law in assuming a
violation can be found unwarrantable only if it is "intentional."
Id. at 8-9.
S&H responds that the judge properly reasoned that Phillips
would not intentionally violate the roof control plan knowing of
the inspector's presence. S&H Br. at 7-8. It also argues that
no proof was presented regarding the angle for making cuts under
the roof control plan. Id. at 7. S&H maintains the violation
was an accident, indicative of nothing more than ordinary
negligence. Id. at 6.
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. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence" (the failure to use such care as a reasonably
prudent and careful person would use, characterized by
"inadvertence," "thoughtlessness," and "inattention"). Id.
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, aff'g 16
FMSHRC at 543-47 (approving Commission's unwarrantable failure
test). This determination was also based on the purpose of
unwarrantable failure sanctions in the Mine Act, the Act's
legislative history, and judicial precedent. Emery, 9 FMSHRC at
2002-03.
The judge's unwarrantable failure determination turned on
whether the operator's conduct was "willful" rather than
negligent. 15 FMSHRC at 2198. The Commission has held that
conduct that is not intentional may nevertheless be aggravated
and, thus, constitute unwarrantable failure. Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007, 2011 (December 1987). As noted, the
Commission has held that conduct characterized by indifference,
serious lack of reasonable care, or reckless disregard may
support a finding of unwarrantable failure. Because the judge
did not analyze the evidence in light of this precedent, he
erred.
Further, the judge's findings are not supported by
substantial evidence. His finding that it was "inconceivable"
that the continuous miner operator, knowing the inspector was
present, would intentionally mine a pillar without setting
timbers, 15 FMSHRC at 2198, lacks record support. There is no
evidence that Phillips knew McDaniel was watching him at the time
he committed the violation.
The judge's reliance on the angle and depth of the cut in
determining that unwarrantable failure had not been established
is also misplaced. Inspector McDaniel testified that Phillips
could not have traveled 12 feet by accident. Tr. I 206-07. The
judge did not indicate why he rejected the inspector's conclusion
that, given the width of the pillar cut, it could not have been
accidental. In addition, the judge did not discuss the fact that
the cut was made by a section foreman and observed by a mine
superintendent. A heightened standard of care is required of
such individuals. See Youghiogheny & Ohio, 9 FMSHRC at 2011 (in
overseeing compliance with the roof control plan, the section
foreman is held to a demanding standard of care). On remand, the
judge shall address these issues.
Accordingly, we vacate the judge's determination that the
violation was not the result of unwarrantable failure and remand
for further analysis in light of Commission precedent and the
record evidence.
**FOOTNOTES**
[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)). 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]: Notwithstanding the judge's use of the term "width,"
the record indicates that he was referring to the depth of the
cut. See Tr. I 200, 204-05.
III.
Conclusion
For the foregoing reasons, we vacate the judge's
determinations that the violation in Order No. 3382962 was not
S&S and that the violation in Order No. 3382964 was not the
result of unwarrantable failure. We remand for analysis
consistent with this opinion.
Mary Lu Jordan, Chairman
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
Marc Lincoln Marks, Commissioner