Secretary of Labor v. Consol Buchanan Mining Company, LLC

Plain-English summary

Consol Buchanan took a crosscut about two to three-and-a-half feet deeper than its roof control plan allowed in adverse roof conditions. The violation itself had already been affirmed, but a federal appeals court remanded the S&S question and directed the judge not to rely on redundant safety measures or miner precautions. Judge Priscilla M. Rae found that the Secretary still did not prove a roof fall was reasonably likely to break back into the bolted area and injure a miner. She relied on the short exposure period, longer bolts in a tighter pattern, the inspector's decision to allow bolting to continue, and the absence of evidence connecting the extended cut to a fall in the bolted area. The judge again removed the S&S designation and retained the $1,500 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: The roof-control-plan violation remained affirmed, but its S&S designation was removed and the penalty remained $1,500.
• Key point: Proof that a roof fall could break into a bolted area is not enough for S&S without evidence that such an injury-producing event was reasonably likely under the specific mining conditions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9950 / FAX: 202-434-9949

June 11, 2019

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

CONSOL BUCHANAN MINING

COMPANY, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. VA 2012-0042

A.C. No. 44-04856-269664

Mine: Buchanan Mine #1

DECISION AND ORDER

Before:           
Judge Rae

I.                   
STATEMENT OF THE CASE

This
matter arises from a petition for assessment of civil penalty filed by the
Secretary of Labor (“the Secretary”) pursuant to the Federal Mine Safety and Health
Act of 1977, as amended, (“the Mine Act”) 30 U.S.C. § 815(d). A hearing was
held in Kingsport, Tennessee on November 18, 2014, after which the parties
submitted post-hearing briefs (“Post-Hr’g Br.”). I rendered a Decision and
Order after hearing, assessing the propriety of three citations and their
respective S&S designations, contained in Docket Numbers VA 2012-0042 and
VA 2013-0192. Sec’y of Labor v. Consolidation Coal Co. , 37 FMSHRC 2396 (Oct.
2015)(ALJ) (“ Consolidation Coal ”). In relevant part, I held that
Citation No. 8189820, contained in Docket Number VA 2012-0042, was properly
issued for a violation of Respondent’s roof control plan, but was not properly
designated as S&S.

The
Secretary appealed my removal of Citation Number 8189820’s S&S designation
to the Commission which affirmed the removal of the S&S designation in a
split decision. Sec’y of Labor v. Consolidation Coal Co. , 39 FMSHRC 1737
(Sept. 2017) (“ Comm’n Decision” ). The Secretary then appealed the
Commission’s affirmation to the D.C. Circuit, which vacated the removal of the
S&S designation and remanded this matter for further consideration
consistent with its instructions. Sec’y of Labor v. Consolidation
Coal Co. , 859 F.3d 113, 119 (2018) (“ D.C. Cir. Decision ”). Specifically,
the D.C. Circuit instructed that I consider whether Citation Number 8189820 is
properly designated as S&S without considering redundant safety measures or
miner precaution. Id .

II.                
BACKGROUND AND FACTS OF THE VIOLATION

On
remand, the factual record established and credited in my original opinion remains
undisturbed. Citation Number 8189820 was issued by Mine Safety and Health
Administration (“MSHA”) Inspector William G Ratliff [1]
on July 14, 2011 at the Buchanan Mine #1, a large underground coal mine located
in Buchanan County, Virginia. The parties have stipulated to the following relevant
facts:

1.   During all times relevant to
this matter, Consolidation Coal Company (“Respondent”) was the operator, as
defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), of the Buchanan
No. 1 mine, Mine ID No. 44-04856.

2.   The Buchanan No. 1 mine is a
“mine” as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. §
802(h).

3.   At all material times
involved in this case, the products of the Buchanan No. 1 mine entered commerce
or the operations or products thereof affected commerce within the meaning and
scope of Section 4 of the Mine Act, 30 U.S.C. § 803.

4.   Respondent is large in size,
having produced 5,654,353 tons of coal at its Buchanan No. 1 mine in 2011 and
3,506,216 tons in 2012.

5.   The proceeding is subject to
the jurisdiction of the Federal Mine Safety and Health Review Commission and
its designated Administrative Law Judges pursuant to Sections 105 and 113 of
the Mine Act, 30 U.S.C. §§ 815 and 823.

6.   MSHA Inspector William G.
Ratliff, whose signature appears in Block 22 of Citation Numbers 8189820, was
acting in his official capacity as an authorized representative of the
Secretary of Labor when they issued the citations.

7.   The citation at issue in
this proceeding was properly served by a duly authorized representative of the
Secretary of Labor, MSHA, upon an agent of Respondent.

8.   The proposed penalty for Citation
Number 8189820 will not affect Respondent’s ability to continue in business.

Jt. Ex.
1; Tr. 6. [2]

Citation
Number 8189820 alleges that Inspector Ratliff observed a cut that exceeded the
maximum cut length allowed by the mine’s roof control plan in violation of §
75.220(a)(1). [3]
Ex. S-6. Specifically, Part 1, Section K, Subsection K.7 of the mine’s approved
roof control plan limits cut depth to 20 feet in areas of the mine evidencing
adverse roof conditions. Ex. S-8 at 4. The extended cut was taken in a crosscut
in from the No. 3 to the No. 2 entry. Id . As the continuous miner began
to breach the rib of the No. 2 entry, creating an eight-foot hole, the
remainder of the roof collapsed onto the continuous miner. Tr. 267–68.

Inspector
Ratliff issued Citation Number 8189820 at approximately 5:00 AM after traveling
to the mine to investigate an unrelated complaint on the morning of July 14,
2011. While traveling the 17 Right development panel accompanied by Company
Safety Inspector Robert Baugh, Inspector Ratliff encountered adverse roof
conditions and a cut that he suspected exceeded 20 feet in length. Tr. 286,

229. By the time Inspector Ratliff’s arrived at the extended cut, miners were
     in the process of bolting the unsupported roof using six-foot resin bolts, a
     longer bolt than is normally used in this mine. Tr. 241, 259–60. The miners
     were bolting in a tighter pattern that required by the mine’s roof control plan,
     installing additional rows of bolts between the regularly spaced bolt-rows. Tr.
     312–13. Inspector Ratliff waited until the miners finished bolting the entire
     cut through to the No. 2 entry before measuring the length of the cut the next
     day. Tr. 229–30, 244.

In
my initial decision, I found that the cut was between 22 and 23.5 feet in
length, as measured from the last row of roof bolts installed prior to the cut,
and constituted a violation of

§ 75.220(a)(1).
Consolidation Coal , 37 FMSHRC 2396, 2409. This holding was not
challenged on appeal. See Comm’n Decision , 39 FMSHRC 1737; D.C.
Cir. Decision , 859 F.3d 113.

III.             
LEGAL PRINCIPLES

A
violation is S&S if the violation is “of such nature as could significantly
and substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d). A S&S designation is appropriate “if,
based upon 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.” Sec’y of Labor v. Cement
Div., Nat'l Gypsum Co. , 3 FMSHRC 822, 825 (Apr. 1981) (“ Nat'l Gypsum Co.”) .

In
Mathies Coal Company , the Commission set forth the following four-part
test to determine whether a violation is properly designated as S&S:

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.

6 FMSHRC
1, 3-4 (Jan. 1984) (“ Mathies ”); accord Buck Creek Coal, Inc. v. FMSHA ,
52 F.3d 133, 135 (7th Cir. 1995) (“ Buck Creek ”); Austin Power, Inc.
v. Sec'y of Labor , 861 F.2d 99, 103 (5th Cir. 1988); Consolidation Coal
Co. v. FMSHRC , 824 F.2d 1071, 1075 (D.C. Cir. 1987). It is “well
established that the burden of establishing S&S rests on the Secretary[.]” Sec’y
of Labor v. Topper Coal Co. , 20 FMSHRC 344, 378 (Apr. 1998) (citing Mathies ,
6 FMSHRC at 3-4).

The
Commission later clarified the relationship between the second and third steps
of the Mathies ’ analysis. [4]
Sec’y of Labor v. Newtown Energy, Inc. , 38 FMSHRC 2033, 2037-38 (Aug.
2016) (“ Newtown ”). After the judge identifies the hazard at issue, step
two requires a judge assess “whether the violation sufficiently contributed to
that hazard.” Id . at 2038. Specifically, the Commission clarified that “the
second step requires a determination of whether, based upon the particular
facts surrounding the violation, there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is
directed.” Id . If the violation sufficiently contributes to the occurrence
of the hazard under step two, “the Judge then assumes such occurrence” for the
analysis of step three. Id . Step three is satisfied if, based upon the
particular facts surrounding the violation, the occurrence of that hazard “would
be reasonably likely to result in an injury.” Id .

Analysis
of the likelihood of injury step is conducted assuming “continued normal mining
operations.” Sec’y of Labor v. U.S. Steel Mining Co. , 6 FMSHRC 1573,
1574 (July 1984). Specifically, in assessing whether a hazard poses a
reasonable likelihood of injury, judges consider “the length of time that the
violative condition existed prior to the citation and the time it would have
existed if normal mining operations had continued.” Sec’y of Labor v. Black
Beauty Coal Co. , 34 FMSHRC 1733, 1740 (Aug. 2012); Secy of Labor v. Rushton
Mining Co. , 11 FMSHRC 1432, 1435 (Aug. 1989). Additionally, analysis of the
likelihood of injury should not rely on the expectation that miners will
protect themselves. Newtown , 38 FMSHC at 2044; see also Sec’y of
Labor v. Eagle Nest, Inc. , 14 FMSHRC 1119, 1123 (July 1992) (“We reject the
judge’s conclusion that the ‘exercise of caution’ may mitigate the hazard.”). Similarly,
analysis of the likelihood of injury under step three cannot consider the
mitigating effects of redundant safety measures. Secretary of Labor v. Black
Beauty Coal Co. , 38 FMSHRC 1307, 1313-14 (June 2016); Sec’y of Labor v.
Cumberaland Coal Res ., 717 F.3d 1020, 1029 (D.C. Cir. 2013) (“ Cumberland
Coal Res. ”); Buck Creek, 62 F.3d at 136. Lastly, the Commission
has recognized that an MSHA inspector's judgment is “an important element of an
S&S determination.” Wolf Run , 36 FMSHRC 1951, 1959; Mathies ,
6 FMSHRC at 5.

IV.             
ADDITIONAL FINDINGS OF FACT

In
my initial Decision, I held that the first and second steps of the Mathies
test were satisfied, which was not challenged on appeal. Consolidation Coal,
37 FMSHRC 2396, 2409. With respect to the third step of Mathies , I
held that the Secretary had not satisfied his burden of establishing that a
roof fall caused by the extended cut was reasonably likely to injure a miner. Id .
at 2410. I relied on: (1) the length of time the violative condition would
exist in the context of continued mining operations; (2) the use of longer roof
bolts and a tighter bolting pattern; (3) the use of an automated temporary roof
support system (“ATRS”); and (4) the fact that miners would not go into the
unbolted “red zone.” Id . at 2409–2410. The D.C. Circuit remanded the
issue of whether a roof fall would be reasonably likely to injure a miner with
instructions that I not consider the ATRS or miner precaution in my analysis. [5]
D.C. Cir. Decision , 895 F.3d 113, 119–20.

The
issue of whether a roof fall caused by the extended cut was reasonably likely
to injure a miner cannot be discussed until the relevant facts have been culled
from the record. Specifically, the Secretary initially argued in his Post-Hearing
Brief that a “roof fall would carry back through the adverse conditions to the
previous cut where [examiners, car operators, and roof bolters] were working.” Sec’y’s
Post-Hr’g Br. at 26. However, the Secretary conceded that while “a roof fall
did occur after the majority of the cut was competed” it did not carry back and
“break through the bolts in this instance [but] it could have.” Id . Accordingly,
at the time of my initial decision, it was undisputed that a roof fall did not
break through into the bolted area where iners were working. Therefore, there
was no need to make a finding on whether a roof fall broke into the bolted area
at the time I rendered my initial decision.

The
Secretary maintains his theory, in his Brief on Remand (“Remand Br.”), that a
“roof fall that broke through the bolts” would injure a miner. Sec’y’s Remand
Br. at 7. However, the Secretary now argues, for the first time before me,
“part of the roof actually fell and broke back through the bolts after the deep
cut was made.” [6]
Id . I am not aware how the factual record could have possibly changed between
the time I rendered my initial decision to when this matter was remanded to me
from the D.C. Circuit. Nonetheless, it is now necessary to address the
Secretary’s newfound interpretation of the record.

The
Secretary cites three points of testimony to support the assertion that a roof
fall broke back through into and damaged the last row of bolts in the
previously roof bolted area. First, the Secretary selectively cites to the
testimony of Inspector Ratliff. Id . at n. 46. Inspector Ratliff did
testify that the “cut actually fell out rock.” Tr. 252. However, the Secretary
attempts to conflate the roof fall that occurred at the opposite end of the extended
22 to 23.5 foot cut with a roof fall in the bolted area. This is a strained
interpretation of Inspector Ratliff’s testimony as Ratliff referenced the roof
fall and said, “[y]ou’ve got quite a bit of rock. . .if this breaks around your
roof bolts,” thereby acknowledging that a the referenced “fell out rock” did
not actually break around the roof bolts. Tr. 252.

Furthermore, Inspector Ratliff
testified specifically that “[t]he roof had not fallen in the area where these
bolts were at.” Tr. 234. With respect to the row of damaged roof bolts and
location of the rock fall, Inspector Ratliff said:

The
bolts were cut, folded over, damaged, the plates were missing, indicates that
the miner cut the bolts out instead of the rock fall, which there was no rock
that had fallen right there at this location. It was further into the cut. It
indicated that the miner cut them out.

Tr. 234.
In sum, Inspector Ratliff’s testimony is consistent with the Secretary’s
previous position that a rock fall did not occur in the bolted area.

Next,
the Secretary cites to the testimony of Terry Hamilton, the Section Foreman of
the 17 Right development panel at the time the extended cut was taken. Sec’y’s
Remand Br. at 7,

n. 46. When
asked if there he noticed a problem with the last row of roof bolts after the
rock fall, Hamilton responded, “it had fell and I guess , dislodged a
couple of bolts[.]” Tr. 269 ( emphasis added ). However, in his very next
statement Hamilton stated, “I can’t remember exactly if it would have been the
miner done it or rock fell around it or what.” Id . Hamilton’s testimony
indicates that the last row of bolts in the bolted area included damaged bolts. [7]
However, it is ambiguous as to whether they were damaged by a rock fall or by
mining operations.

Lastly,
the Secretary cites to the testimony of Safety Inspector Baugh. Sec’y’s Remand
Br. at 7, n. 46. When asked if the roof fall damaged the last row of bolts he
replied “right.” Tr. 293. However, on the previous page of testimony Bough testified
that “one of [the bolts] was damaged by the miner” and that based on his
memory, “three of [the bolts] were damaged when the place fell.” While this
testimony attributes some of the damaged bolts to a roof fall, it does not
indicate that the roof fell within the bolted area nor is it as detailed as
Inspector Ratliff’s description of state of the damaged bolts and his
explanation of how they became damaged. Additionally, and as the Secretary
acknowledges, Inspector Ratliff’s testimony should be afforded great weight due
to his training and experience. See Sec’y’s Remand Br. at 8. Due to the
detailed and unequivocal nature of Inspector Ratliff’s testimony as well as his
training and experience, I credit Inspector Ratliff’s testimony that a roof
fall did not occur in or break back into the bolted area.

V.                
ANALYSIS

The
issue before me on remand is whether the Secretary has established by a
preponderance of the evidence, considering the facts and circumstances
surrounding the violation in the context of continued mining operations, that a
roof fall was reasonably likely to break back into the bolted area and injure a
miner. [8]
If so, then the inquiry turns to whether the resulting injury would be of a
reasonably serious nature pursuant to Mathies step four. However,
consideration of the fourth step of Mathies is unnecessary, as the
Secretary has failed to meet his burden in demonstrating that a roof fall was
reasonably likely to break back into the bolted area and injure a miner.

First,
as noted in my initial decision, the Mine was using resin bolts installed in a
tighter bolting pattern than was required by the roof plan. Tr. 260, 312–13. In
addition, the bolts used in the extended cut were six feet in length - longer
than those normally utilized in Buchanan Mine #1. Tr. 260. Employing a tighter
bolting pattern and switching to longer bolts in the extended cut reduced the
likelihood that a roof fall in the unbolted area would destabilize the roof of previously
bolted cut or the newly bolted roof established as the bolting crew advanced.

Second,
as also noted in my initial decision, the violative condition was in the
process of being corrected when Inspector Ratliff observed the extended cut. Tr.

253. The cut was fully bolted by the time Inspector Ratliff returned the next
     day to measure the extended cut. Tr. 244, 280. Accordingly, the relatively
     short period of time that the roof was left unbolted lessens the chance that
     additional roof falls would occur in the remaining unbolted area, let alone break
     back into the bolted area.

Third,
it is significant that Inspector Ratliff allowed the miners to continue roof
bolting the extended cut to completion when he observed the condition. As
recognized by the Commission, an inspector’s judgement is “an important element
of an S&S determination.” Wolf Run , 36 FMSHRC 1951, 1959. Inspector
Ratliff was aware of the adverse roof conditions and believed the cut was of
impermissible length at the time he allowed roof bolting to continue. Tr. 252. The
Secretary’s theory that a roof fall was reasonably likely to break back through
the bolted area and injure a miner is inconsistent with Inspector Ratliff’s
decision to allow roof bolting to continue through the entirety of the extended
cut. Otherwise, Inspector Ratliff’s decision to let bolting continue would be
tantamount to allowing continued exposure of the bolting miners to a reasonable
likelihood of reasonably serious harm. [9]

Fourth,
roof falls occur in the regular course of mining operations as recognized by
the Buchanan Mine #1’s approved ventilation plan. See Ex. S-3, pt. 1at 1.
In the context of a cross cut as is at issue here, the greatest amount of
stress rests on the intersection of the cuts over 20 feet away from the bolted
area - where the extended cut intersected with the No. 2 entry. Tr. 251; Ex. R-3
at 5. It follows that, if a roof fall is to be assumed in assessing the
likelihood of injury, this is the area that a roof fall is most likely to, and
did, occur. However, the record contains no evidence that the roof fall that
occurred in the final feet of the extended cut was caused by the extended cut. [10]

Fifth,
the Secretary fails to provide any explanation as to why it is reasonably
likely a roof fall at the intersection with the No. 2 entry would travel back
into the roof-bolted area besides first alleging it “could happen” and now
alleging it did happen. The Secretary does not point to any testimony on the
record, expert or otherwise, explaining how characteristics of the cut
structure and roof composition would make a roof fall likely outside of the
final feet of the extended cut reasonably likely. The occurrence of a roof fall
at the intersection with the No. 2 entry does not constitute evidence that additional
roof falls are likely to occur in other areas along the crosscut, bolted or
unbolted. The Secretary does cite to testimony espousing that roof falls can
break into roof-bolted areas, arguing that “a mine’s history of roof falls is relevant
to whether an injury from a roof fall is reasonably likely.” Sec’y’s Remand Br.
at 7, n. 48, 49. However, the cited testimony is not cabined to the facts of
this case and therefore is not probative of whether this deep cut, or any deep
cut, is likely to result in a roof fall which breaks back into a roof-bolted
area. [11]

VI.                         
CONCLUSION

The
Secretary’s allegations that a roof fall breaking back into a roof-bolted area “could
happen” in general does not satisfy the Secretary’s burden of demonstrating it
is reasonably likely to occur and injure a miner under the specific facts of
this case. Having found that a roof fall did not occur in the roof-bolted area,
the Secretary’s allegation of a possible roof fall in a roof-bolted area is all
that remains. Logically, all violations of mandatory safety standards could
result in injury to miners, hence the reason for their implementation and
enforcement. However, to accept the Secretary’s argument that a violation is
properly designated as S&S because it could result in injury to a miner
would effectively allow all non-technical violations to be designated as
S&S. This would be inconsistent with the graduated enforcement scheme of
the Mine Act and is the very reason that the Secretary must prove, in relevant
part, that harm is reasonably likely to result from a violation before it can
be designated as S&S. [12]
Nat'l Gypsum Co. , 3 FMSHRC 822, 825. Here, the Secretary has failed to
meet his burden in showing that Respondent’s taking an extended cut of an
additional two to three-and-a-half feet was reasonably likely to result in harm
to a miner. Accordingly, and for the reasons set forth above, I find that Citation
Number 8189820 was not properly designated as S&S and therefore remove the
S&S designation.

ORDER

It is hereby ORDERED
that the S&S designation associated with Citation Number 8189820 be
removed. I incorporate my initial findings with respect to the appropriate
civil penalty and FURTHER ORDER Respondent pay $1,500.00 within thirty
(30) days of the date of this Decision and Order. [13]

/s/
Priscilla M. Rae

Priscilla
Rae

Administrative
Law Judge

Distribution:

Eric
Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh
Avenue North, Suite 420, Nashville, TN

Emily
Toler Scott, U.S. Department of Labor, Office of the Solicitor, 201 12th Street
South, Suite 401, Arlington, VA 22202

Billy R.
Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek
Drive, Suite 301, Lexington, KY 40509

[1] Inspector
Ratliff has worked for MSHA as a coal mine inspector since February 2008. He worked
in the mining industry as an equipment operator, shop foreman, and fireboss for
roughly 24 years before being hired by MSHA in 2007 and subsequently completed
approximately one year of field training and coursework at the Mine Academy to
become certified as an inspector. He cumulatively had about 28 years of
experience in the mine industry at the time he issued Citation Number 8189820. Tr.
225–26.

[2] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered S-1 to S-11 and Respondent’s exhibits are
numbered R-3 and R-4.

[3] The cited
standard, § 75.220(a)(1), operates as a mandatory safety standard and 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.” 30 C.F.R.
§ 75.220(a)(1); Sec’y of Labor v. Martin County Coal Corp ., 28 FMSHRC
247, 252 (May 2006).

[4] The S&S
determination must be based on the particular facts surrounding the violation
at issue. Sec’y of Labor v. Peabody Coal Co. , 17 FMSHRC 508, 511-12
(Apr. 1995); see , e.g. , Sec’y of Labor v. Wolf Run Mining Co. ,
36 FMSHRC 1951, 1957–59 (Aug. 2014) (“ Wolf Run ”).

[5] The D.C.
Circuit directed that settled Commission case law prohibits consideration of
redundant safety measures in Mathies step three. Accordingly, I do not
consider redundant safety measures in this decision. However, the D.C. Circuit specifically
noted that it did not address whether redundant safety measures could be
considered in Mathies step two.
D.C.
Cir. Decision ,
859 F.3d 113, 120 . I share similar
reservations on the blanket refusal to consider compliance with relevant safety
measures in any point in an S&S analysis. The policy concern associated
with crediting the mitigating effects of redundant safety measures in a S&S
analysis recognizes that “[i]f mine operators could avoid S&S liability . .
. by complying with redundant safety standards, operators could pick and choose
the standards with which they wished to comply.” Knox Creek Coal Corp. v.
Sec’y of Labor , 811 F.3d 148. However, this analysis cuts both ways. Disregarding
the effect of redundant safety measures once a hazard has manifested may promote
general compliance with safety standards. However, disregarding compliance with
safety measures aimed at preventing hazards from manifesting in the first place
would, in effect, punish operators for general compliance with such standards
by subjecting them to S&S liability. Crediting standards which reduce the
likelihood of hazards in occurring in Mathies step two would comport
with the Mine Act’s objective of removing hazards from mining environments
while not providing complete defense to S&S liability by allowing operators
to assume away any resultant harm in Mathies step three. It is also
questionable as to which safety measures should be considered secondary or
redundant. The use of ATRS is not similar to a fire extinguisher or a fire retardant
belt. As Commissioners Young and Althen point out in their opinion, the “Automated
Temporary Roof Support was not in any sense of the word a ‘redundant’ safety
feature. Such support was a required and accepted aspect of the roof plan. Failure
to use it would have been a violation; certainly, actual use of the prescribed
roof control device bears upon the reasonably likely result of a roof fall.” Consolidation
Coal Co ., 39 FMSHRC 1737, 1751-52 (Sept. 2017). To hold otherwise would lead
to absurd results. The Court of Appeals is simply incorrect in its application
of this principle as it applies to the instant case.

[6] The Secretary
first made this argument that a roof fall broke back into the roof-bolted area on
appeal to the Commission, which Commissioners Althen and Young refused to
address because the Secretary did not raise advance this argument at the trial
level. Comm’n Decision , 37 FMSHRC 1737, 174–48.

[7] Although the
last row of roof bolts included damaged bolts, the damage to the bolts did not
affect their structural integrity of their effectiveness in supporting the roof
strata. Tr. 261.

[8] The Secretary
does not argue that injury would result from the roof falling on miners working
under unsupported roof outside of the roof-bolted area, nor would that be
appropriate under settled Commission case law. See Sec’y of Labor v. FMSHRC ,
111 F.3d 913, 917-18 (D.C. Cir. 1997) (Holding that the Secretary is not to
consider “nonviolative surrounding conditions” in analyzing whether a violation
significantly and substantially” contributes to a hazard.); see also Cumberland
Coal Res. , 717 F.3d 1020, 1028 (Stating that “decision makers should not
consider facts unrelated to the violation when undertaking a significant and
substantial evaluation.”). Accordingly, and consistent with the D.C. Circuit’s
remand instruction, miner precaution and Respondent’s use of an ATRS is
irrelevant to analysis of the Secretary’s argument before me—that a roof fall would
break back into the roof-bolted area and injure a miner—and therefore is not
discussed herein.

[9]
If the
Secretary’s argument was to be accepted, any time a cut of two to
three-and-a-half additional feet is taken, mining in that area would need to
cease lest miners be exposed to a reasonably serious likelihood of harm.

[10] Foreman
Hamilton testified that when a cut is taken close to an intersection, the last three
feet of coal can fall in because of its soft composition. Tr. 281-83. Accordingly,
the roof fall that occurred at the end of the cut may have been a result of the
low structural integrity of the thin reaming seam of soft coal between the
extended cut and the No. 2 entry – not a result of the cut’s length.

[11] The cited
testimony of Hamilton and Bough does not speak to a “history of roof falls”
that are relevant to the facts before me as the Buchanan Mine #1 has no history
of taking extended cuts. Tr. 244-245. Accordingly, the testimony the Secretary relies
on to establish a history of roof falls cannot possibly relate to roof falls
caused by extended cuts, much less evidence that a roof fall potentially caused
by an extended cut will travel back twenty feet into a roof-bolted area. Tr.
244–45.

[12] In Nat'l Gypsum Co. , the
Commission rejected the Secretary’s argument that a violation is properly
designated as S&S, regardless of the gravity of the resultant harm, as long
as a violation posed “more than a remote or speculative chance that injury . .
. will result[.]” Nat'l Gypsum Co. , 3 FMSHRC 822, 825. Specifically, the
Commission opined that such an interpretation of the S&S provision of the Mine
Act would be inconsistent with the Act’s “overall enforcement scheme, which
generally provides for the use of increasingly severe sanctions for
increasingly serious violations or operator behavior. Id . at 828. Here,
the Secretary’s theory that a roof fall could break back into a roof-bolted
area and injure a miner is purely speculative.

[13] See Consolidation
Coal , 37 FMSHRC 2396, 2410-11. Payment should be sent to: U.S. Department
of Labor, MSHA, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please
include docket and A.C. numbers.