<DOC>
[DOCID: f:se2000245.wais]
 
U.S. STEEL MINING COMPANY, LLC
July 26, 2001
SE 2000-245-M
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                          July 26, 2001
SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH      :
     ADMINISTRATION (MSHA),      : Docket No. SE 2000-245-M
               Petitioner        : A.C. No. 01-00851-04087
          v.                     :
                                 : Oak Grove Mine
U.S. STEEL MINING COMPANY, LLC,  :
               Respondent        :
                             DECISION
Appearances: Terry G. Gaither, Conference and Litigation
             Representative, U.S. Department of Labor,
             Birmingham, Alabama, on behalf of Petitioner;
             S. Andrew Scharfenberg, Esq., Ford  &  Harrison, 
             LLP, Birmingham, Alabama on behalf of Respondent.
Before: Judge Zielinski
     This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor against U.S. Steel Mining
Co., LLC, pursuant  to section 105 of the Federal Mine Safety and
Health Act of 1977 (the  "Act").   30 U.S.C.  815.  The petition
alleges  a single violation of the Secretary's  mandatory  health
and safety  standards and proposes a civil penalty of $242.00.  A
hearing was held  in  Hoover,  Alabama on June 15, 2001.  For the
reasons set forth below, I vacate  the  citation  and dismiss the
petition.
                        Findings of Fact
     On  June  5,  2000, Jacky H. Shubert, an inspector  for  the
Secretary's  Mine  Safety   and   Health  Administration  (MSHA),
conducted an inspection of U.S. Steel's  Oak  Grove Mine.  He was
accompanied    by   James   Bell,   an   elected   union   safety
representative.   Shubert issued Citation No. 7667878 for what he
perceived to be a violation  of   30 C.F.R.  75.220(a)(l), which
requires that operators comply with  their  approved roof control
plans.  He described the alleged violation as follows:
     The  current  roof  control plan is not being  complied
     with, in that the cribs  in  the tail gate entry of the
     long wall were not installed properly  [--] none of the
     cribs were capped tightly against the roof.
     Respondent's roof control plan, which had  been  approved by
MSHA, included the following provisions for roof control relative
to the longwall mining operation:
     Hydraulic  jacks,  timbers, or cribs shall be installed
     on a maximum spacing of 5' centers on the operator side
     of the head gate entry  for  a distance of 30' from the
     face  in the direction of the longwall  advance.   Tail
     gate support  shall  consist of a minimum of one row of
     cribs positioned at maximum  intervals  of  7'  between
     cribs.   "Can-type"  cribs may be installed in lieu  of
     conventional cribs with  maximum  spacing between cribs
     to be 10 feet.  These supports shall  be  installed the
     entire  length  of  the  tailgate entry, not to  extend
     beyond the recovery area,  in the panel presently being
     mined.  These supports are to  be  maintained even with
     the  working  face  in  the  tailgate  entry   for  the
     subsequent panel.
     Tailgate and head gate entries, some 8,000 to 12,000 feet in
length, are originally created by a continuous miner  machine and
conventional  roof  supports, i.e., roof bolts, are installed  as
the primary means of  roof  support.   Cribs provide supplemental
roof   support.   While  there  are  several  types   of   cribs,
conventional  cribs are typically made of rough-cut lumber, 6" by
6" by 30" long.   The members are stacked in layers of two, at 90
degree angles, or crosswise,  until the stack reaches the roof of
the entry.  The stack is generally "capped" with a two inch thick
board and wedges are driven to  fit  the crib tightly against the
roof.  The additional support provided by cribs helps prevent the
roof from sagging and deteriorating.   It  also  helps to prevent
deterioration and rolling of the ribs, i.e., portions of the wall
of  the  entry breaking off and falling into the entry.   As  the
wood dries,  it  typically  shrinks, which can cause the cribs to
loosen.   They  are tightened again  by  driving  the  wedges  in
further and/or adding  more  material.   Respondent contends that
there  is  no requirement in its roof control  plan  that  cribs,
initially properly  installed,  be  subsequently maintained tight
against the roof.  However, any logical  construction of the plan
would require that the cribs be properly installed and maintained
tight against the roof.  In the words of the  inspector,  if  the
cribs are not tight against the roof, they are not providing roof
support  and  are  little  more than stacks of lumber interfering
with ventilation and travel through the entry.
     The  supplemental roof support  provided  by  the  cribs  is
especially  important in the first 100 feet "outby," i.e., in the
direction of  the  advancing  longwall.  As  the  longwall mining
machine  advances, the unsupported roof left behind  in  the  gob
area is allowed to fall.  MSHA's field office supervisor, Kenneth
Ely, explained  that the forces generated by the falling roof are
often transferred  forward  to the area in front of the long wall
machine, especially in the first 30-100 feet.  Beyond 100 feet in
front of the advancing long wall,  the tailgate entry is like any
other  entry and the primary roof support,  roof  bolts,  provide
adequate  support.   The  requirement for tailgate entry cribs in
the roof control plan is, then,  that  there  be  a single row of
cribs installed at minimum spacing of 7' from where the long wall
operation  began through 100 feet in front of the advancing  long
wall.  Although  the  plan states that cribs are required for the
entire length of the tailgate entry, the absence of cribs further
than 100 feet in front  of  the  advancing long wall would not be
considered a violation of the plan.
     Inspector  Shubert  testified  that   as   he   walked   the
approximate  7,000  foot  length  of the tailgate entry, from the
longwall to the main entry, he observed  that the majority of the
cribs  were  not  capped  tight  against  the  roof.   Respondent
actually installs two rows of cribs on 5-7 foot  spacings  --  at
least  twice  as  many  as  required  by  its  roof control plan.
Shubert passed by and had an opportunity to observe  each  of the
approximately   2,000   cribs  in  the  tailgate  entry  that  he
inspected.  Some had cap  boards  and wedges, some didn't.  There
were gaps as much as 3 to 6 inches  between  the  cribs  and  the
roof.   He  observed  deterioration  in the roof and sloughing of
material from the ribs.  He stated that  he would see where a rib
had rolled for about 20 feet, would proceed  another  50 feet and
see another rib roll that had knocked over a couple of cribs.  He
recalled  that  the objectionable condition of the roof was  more
severe in the first  150  feet  of the entry, the rest was not as
bad.  He did not note the specific  location  of  the ineffective
cribs or the places were the rib had rolled and knocked  over the
cribs, which he estimated would have taken six to eight pages  to
describe.  Consequently, he just cited the whole area.  He talked
to  Bell  about  the  cribs  and advised him that he was going to
issue  a citation.  His field notes  refer  to  cribs  not  being
tightly  capped  against  the roof, deterioration of the roof and
rib rolls, but do not specify  the  number  or  location  of  the
objectionable conditions.
     Bell  testified  that  he checked the cribs within the first
100-150  feet  of  the tailgate  entry  and  they  were  properly
installed, were tightly  capped against the roof and there was no
roof deterioration.  He had  inspected  the  tailgate  entry less
than a month before, noticed some loose cribs, and they  had been
tightened.   He  acknowledged  that  there were some loose cribs,
which surprised him because of the recent  tightening,  but  that
they  were  not  within  100-150  feet  of the longwall.  He also
acknowledged that there were some cribs knocked  down  at the #19
crosscut  due  to  a rib roll, but that was some 2,000 feet  away
from the longwall, and  the  area  had been "dangered off", i.e.,
marked  to  forbid  miners  from  entering   the  area.   Shubert
discussed the cribs with him but not until they  had  reached the
main entry
          Conclusions of Law - Further Factual Findings
     In  an  enforcement  proceeding under the Act, the Secretary
has the burden of proving an alleged violation by a preponderance
of  the  evidence.  In re: Contests  of  Respirable  Dust  Sample
Alteration  Citations,  17 FMSHRC 1819, 1838 (Nov. 1995), aff'd.,
Secretary of Labor v. Keystone  Coal  Mining Corp., 151 F.3d 1096
(D.C.Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July
1993); Garden Creek Pocahontas Co., 11 FMSHRC  2148,  2152  (Nov. 
1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1987).
     In order to establish  the  alleged violation, the Secretary
must  prove that there was not at least  one  properly  installed
crib every  7  feet  in the first 100 feet of the tailgate entry.
Improperly installed or  missing  cribs  in  the remainder of the
entry, at that time 7,000 feet in length, would  not  violate the
roof  control  plan.   Because  Respondent installed two rows  of
cribs, twice as many as required  by  the  roof control plan, the
Secretary  cannot  establish a violation by simply  proving  that
some cribs within the  critical  first 100 feet of the entry were
not tightly capped against the roof.  With two rows of cribs on 7
foot centers, some 28 cribs would  have  been  installed  in  the
first 100 feet of the entry.  The roof control plan requires only
one  row  of cribs, at most 14.[1]  Consequently, up to 14 of the
28 cribs could  be  improperly  installed or knocked over without
violating  the roof control plan.   It  was  incumbent  upon  the
Secretary, therefore, to prove that either there were no properly
installed cribs in that area or that the cribs that were properly
installed did  not  satisfy  the  requirement  of the plan.   The
Secretary  did  not  introduce  any  evidence as to the  specific
locations of improperly installed cribs  in the first 100 feet of
the entry.  Consequently, in order to prevail, the Secretary must
prove that there were no properly installed  cribs  in that area.
This she failed to do.
     Although Inspector Shubert noted in the citation that all of
the  cribs  in  the tailgate entry were loose, his testimony  was
more equivocal.   He  testified that some cribs had been properly
installed and at least  tacitly  admitted that some were tight to
the roof.  He also testified that  the  rib  roll and loose cribs
were  in the 100-150 feet of the tailgate entry  closest  to  the
longwall.  However, his field notes are silent as to the location
of those deficiencies.  According to Bell, he and Shubert did not
discuss  their  observations  until they had exited the entry and
there  is  no  indication  as  to  when   Shubert   recorded  his
observations,  but  he  likely  did  so after leaving the  entry.
Accepting Bell's testimony, in part, which  is largely consistent
with Shubert's, I find that there were loose cribs throughout the
tailgate entry, including the critical 100 feet  closest  to  the
advancing  longwall.  However, there were also properly installed
and maintained  cribs  in  the  entry, including the critical 100
foot zone.  The rib rolls and knocked over cribs were not in that
area, but were in the area of the 19th crosscut.
     While the Secretary presented evidence sufficient to support
a finding that there were some loose, improperly installed, cribs
in the first 100 feet of the tailgate  entry, she failed to prove
that all of the cribs in that area were  deficient.   She did not
present   evidence   of  the  specific  locations  of  improperly
installed cribs and, consequently,  failed  to establish that the
cribs   that   were  properly  installed  did  not  satisfy   the
requirements of Respondent's roof control plan.
                              ORDER
     Based  upon   the  foregoing,  Citation  Number  7667878  is
VACATED, and the petition is DISMISSED.
                                  Michael E. Zielinski
                                  Administrative Law Judge
Distribution:
Terry G. Gaither, Conference  and Litigation Representative, U.S.
Department of Labor, Mine Safety  and  Health Administration, 135
Gemini Circle, Suite 213, Birmingham, AL 35209 (Certified Mail)
Anthony  F.  Jeselnik, Esq., U.S. Steel, Law  Dept.,  USX  Tower,
Fifteenth  Floor,   600  Grant  St.,  Pittsburgh,  PA  15219-2749
(Certified Mail)
S. Andrew Scharfenberg,  Esq., Ford & Harrison, LLP., 505 N. 20th
Street, Suite 1201, Birmingham, AL 35203 (Certified Mail)
/mh
**FOOTNOTES**
     [1]: The plan specifies  that  there  be  no  more  than "7'
between  cribs."  If measured from the edges of the cribs,  there
would be one  crib  required  every 9.5 feet, or approximately 10
cribs per 100 feet.