UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN RIDGE LIME, L.P.,
Petitioner,

v.

FEDERAL MINE SAFETY & HEALTH
                                                                     No. 97-1579
REVIEW COMMISSION; SECRETARY OF
LABOR, Mine Safety and Health
Administration,
Respondents.

On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission.

Argued: January 28, 1998

Decided: April 13, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Petition for review granted and case remanded by unpublished opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Motz joined.
Judge Murnaghan wrote a dissenting opinion.

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COUNSEL

ARGUED: Thomas Blumeyer Weaver, ARMSTRONG, TEAS-
DALE, SCHLAFLY & DAVIS, St. Louis, Missouri, for Petitioner.
Yoora Kim, Office of the Solicitor, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: John F. Cowling, ARMSTRONG, TEASDALE, SCHLA-
FLY & DAVIS, St. Louis, Missouri, for Petitioner. J. Davitt McAteer,
Acting Solicitor of Labor, Edward P. Clair, Associate Solicitor, W.
Christian Schumann, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Following a mine cave-in in which one miner was killed and
another injured, the Federal Mine Safety and Health Review Commis-
sion cited Eastern Ridge Lime, L.P., the mine owner and operator, for
safety violations, and assessed it $85,000 in penalties. For the reasons
that follow, we grant Eastern Ridge's petition for review and remand
this case for further consideration of the penalties.

I

On July 25, 1994, the roof of a limestone mine in Ripplemead, Vir-
ginia, owned and operated by Eastern Ridge, caved in, killing Barry
Snider, a mine supervisor, and injuring Jeffrey Morgan, a driller. The
"roof fall" occurred when the two men were attempting to "scale"
loose a large rock with a Jumbo drill. "Scaling" is a process of strik-
ing and prying at a blasted stone face with metal bars to remove loose
pieces and to determine whether the stone is loose or solid.

The mining process for limestone at the Ripplemead mine involved
a random room and pillar method. Under this method, the miners
create rooms in the mine by blasting the stone and removing the loose
rock created by the blast. Pillars of stone are left standing to provide
support for the roof of the mine. Scaling is one of the procedures
employed in mining with this process.

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Following the July 25 roof fall, the Mine Safety and Health Admin-
istration ("MSHA") investigated the incident and issued a citation to
Eastern Ridge, charging it with violations of three mandatory safety
standards promulgated in 30 C.F.R. § 57.3360 (requiring ground sup-
port when it is "necessary"), 30 C.F.R. § 57.3201 (requiring protec-
tion for miners performing scaling), and 30 C.F.R.§ 57.14205
(limiting the hazardous use of mining equipment). Eastern Ridge con-
tested the charges, and, in October 1996, a hearing was held before
an administrative law judge ("ALJ").

At the hearing, fact witnesses testified to the conditions of the roof
prior to the roof fall and to the circumstances of the mining operations
at the time. In addition, both the MSHA and Eastern Ridge presented
the testimony of expert witnesses. The MSHA's expert expressed his
belief that ground support was necessary at the location of the roof
fall and that the accident resulted from a cantilever joint failure. East-
ern Ridge's expert, in contrast, gave his opinion that ground support
was not necessary and that the cause of the accident was not a failure
of roof support but rather the existence of a cavity above the roof,
from which a large number of boulders fell.

The ALJ found that Eastern Ridge had violated 30 C.F.R.
§§ 57.3360 and 57.3201, but not 30 C.F.R.§ 57.14205. In reaching
this conclusion, the ALJ did not make a finding as to the cause of the
roof fall, explaining, "the issue before me is not the cause of the acci-
dent, but rather whether ground conditions indicated the necessity for
ground support." Rather, the ALJ only found that,"prior to the fatal
accident, ground conditions indicated that ground support was neces-
sary" and that "scaling was performed [unprotected] from a location
which exposed" Snider and Morgan to injury from falling material.
On this basis, the ALJ found violations of § 57.3360 (requiring
ground support when it is "necessary") and§ 57.3201 (requiring pro-
tection for miners performing scaling).

In assessing the appropriate penalties, the ALJ concluded that both
violations were "significant and substantial" as well as "unwarrant-
able." With regard to the § 57.3360 violation, the ALJ stated,
"[t]aking into account the combination of ground conditions . . . and
considering the fact that a roof fall did occur in the area causing a
fatality and seriously injuring another miner, I conclude that the third

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and fourth elements [necessary to show a `significant and substantial'
violation] have been established." In determining the penalty, he
explained, "I find that the gravity of the violation was of a very high
level as the violation contributed to a fatal roof fall." Accordingly, he
assessed a $50,000 penalty.

Similarly, with regard to the § 57.3201 violation, the ALJ stated,
"[c]onsidering the fact that the Respondent's negligence reached the
level of aggravated conduct, and the fact that the violation herein con-
tributed to a fatality, I conclude that the gravity of the violation was
relatively high." For this violation, the ALJ assessed a $35,000 pen-
alty.

The Federal Mine Safety and Health Review Commission declined
discretionary review, and Eastern Ridge filed this petition for review.

II

Eastern Ridge argues that substantial evidence does not support the
Commission's findings on both violations. It avers that the record
contains no evidence about how artificial supports could have con-
trolled the hazard of a rock fall, and therefore no evidence from which
an ALJ could conclude that such support was necessary. It argues in
part that the ALJ attempted to justify his ruling on the occurrence of
a rock fall without finding its cause. Eastern Ridge similarly contends
that when the ALJ found that the miners performing scaling were
improperly exposed to injury from falling material, he based that find-
ing on the fact that a rock fall occurred, but never actually found
whether that rock fall was caused by a violation. It therefore argues
that the ALJ's holdings as to both violations are factually unsup-
ported.

We may review the Commission's findings and decisions (1)
where a "finding or conclusion of material fact is not supported by
substantial evidence;" (2) where a "necessary legal conclusion is erro-
neous;" (3) where the decision is contrary to law or Commission rul-
ings; (4) where a "substantial question of law, policy or discretion is
involved;" or (5) where a "prejudicial error of procedure was commit-
ted." 30 U.S.C. § 823(d)(2)(A)(ii) (standards for Commission's
review of ALJ determinations); see National Cement Co. v.

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FMSHRC, 27 F.3d 526, 530 (11th Cir. 1994) (recognizing court's
standard for reviewing Commission's decision is the same as that
used by Commission to review ALJ determinations). On the other
hand, we regard as conclusive the Commission's findings of fact "if
supported by substantial evidence on the record considered as a
whole." 30 U.S.C. § 816(a)(1).

The ALJ based his first finding of violation on 30 C.F.R.
§ 57.3360, which states that "[g]round support shall be used where
ground conditions, or mining experience in similar ground conditions
in the mine, indicate that it is necessary." The ALJ found that "prior
to the fatal accident, ground conditions indicated that ground support
was necessary." Substantial evidence in the record supports this con-
clusion. Various witnesses testified to the fact that the relevant area
of the mine exhibited mud seams, cavities, and popping noises. They
also testified to the fact that joints appeared across the face of the rock
being mined and that the rock in the roof sounded"drummy." In addi-
tion, the MSHA's expert testified to his belief that, given the mine
conditions in the area, artificial ground support was necessary. The
ALJ's findings are thus supported by substantial evidence, and the
MSHA need not also show that steel supports would have been effec-
tive in preventing the roof fall. The ALJ did not rely on the actual
roof fall to bolster its finding of a § 57.3360 violation, and thus it did
not need evidence of the effectiveness of supports in preventing any
such fall.

The ALJ based his second finding of violation on 30 C.F.R.
§ 57.3201, which states that "[s]caling shall be performed from a
location which will not expose persons to injury from falling material,
or other protection from falling material shall be provided." The ALJ
found that Morgan was "exposed to the hazard of a roof fall" and that
he could not find from the record that the cab in which Morgan was
located was adequate to protect him. The ALJ also found that Snider
"was situated unprotected on the ground." From these findings, the
ALJ concluded that the "scaling was performed from a location which
exposed them to [injury from falling material]" and therefore that
Eastern Ridge had violated § 57.3201. Again, substantial evidence in
the record supports the ALJ's conclusion. Testimony at the hearing
indicated that Snider was located unprotected in an area that presented

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a hazard of a rock fall, and that Morgan's only protection from the
hazard of a rock fall was the drill rig cab.

Thus, regardless of the cause of the actual rock fall, the ALJ's find-
ings find support in the record.

III

Beyond finding these two violations, however, the ALJ held that
Eastern Ridge's violations were sufficiently aggravated to require
substantial civil penalties. He found that the violations were "signifi-
cant and substantial" and "of a very high level," based on the roof fall
and the fatality resulting from the roof fall. In reaching this conclu-
sion, however, the ALJ incorrectly relied on factual findings which he
did not make. The ALJ explicitly declined to find that the cause of
the accident was Eastern Ridge's failure to install additional ground
support, stating that "the issue before me is not the cause of the acci-
dent." Thus, any ALJ findings which rely on a presumption that the
accident was caused by Eastern Ridge's violations are logically
flawed.

In order to show that an operator's violation is"significant and sub-
stantial," the MSHA 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." Mathies Coal Co., 6 FMSHRC 1,
3-4 (1984).

In the case of the § 57.3360 violation, the ALJ appropriately found
the first two Mathies Coal prongs satisfied, holding that "the essence
of the violation, i.e., failure to provide ground support, contributed to
the hazard of a roof fall." In making its findings on the third and
fourth prongs, however, the ALJ considered the "combination of
ground conditions . . . and . . . the fact that a roof fall did occur in
the area causing a fatality and seriously injuring another miner."
(Emphasis added). The ALJ's usage of the roof fall as a relevant
event is unsupported. Because the ALJ never found whether the fail-
ure to provide roof support was the cause of the accident, its holding

                     6
that the accident indicated that Eastern Ridge "significantly and sub-
stantially" violated § 57.3360 is a non sequitur. In order to rely on
such a finding, the ALJ would need to have found that the failure to
provide ground support caused the accident; otherwise, the actual fact
of a roof fall indicates nothing relevant about Eastern Ridge's actions.

This logical error becomes most consequential in the ALJ's impo-
sition of penalties. In assessing a penalty for the§ 57.3360 violation,
the ALJ noted that "the gravity of the violation was of a very high
level as the violation contributed to a fatal roof fall." (Emphasis
added). Similarly, in assessing a penalty under§ 57.3201, the ALJ
considered "the fact that the violation herein contributed to a
fatality." (Emphasis added). Taking into account these factors, the
ALJ imposed fines of $50,000 and $35,000, respectively. By relying
on the fact that Eastern Ridge's actions contributed to the roof fall and
the fatality in making its penalty assessments, the ALJ inappropriately
took account of factors extrinsic to its own findings.

For these reasons, we grant Eastern Ridge's petition for review and
remand this case for further factfinding and analysis of the penalties
to be assessed. Our ruling should not, however, be understood to
imply that causation must be found in every case. The Commission
may impose penalties without any reference to whether a roof fall or
fatality occurred. But where an ALJ relies on the supposition that a
mining company's failure to act was a contributing factor in a fatal
roof fall, he must first find that the failure to act was actually a con-
tributing factor.

PETITION FOR REVIEW GRANTED
AND CASE REMANDED

MURNAGHAN, Circuit Judge, dissenting:

I would affirm. Despite the majority's claim, the ALJ did not "ex-
plicitly decline[ ] to find that the cause of the accident was Eastern
Ridge's failure to install additional ground support." See majority op.
at 6. Instead, he merely noted that when determining whether or not
there had been a violation of § 57.3360, "the issue before [him] [wa]s
not the cause of the accident, but rather whether ground conditions
indicated the necessity for ground support." J.A. at 11 (decision of

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Judge Weisberger). That statement was correct, and we have appro-
priately affirmed his finding of violation.

The fact that the violations contributed to the accident and injuries
was a factor in the ALJ's determination of the appropriate penalties,
however,* and he specifically found causation before imposing these
penalties. See id. at 13 ("I find that the gravity of the violation was
of a very high level as the violation contributed to a fatal roof fall.");
id. at 15 ("Considering the fact that the Respondent's negligence
reached the level of aggravated conduct, and the fact that the violation
herein contributed to a fatality, I conclude that the gravity of the vio-
lation was relatively high."). The majority apparently believes that if
the ALJ "did not rely on" a finding of causation in deciding that there
was a violation, see majority op. at 5, he could not later in the opinion
have found causation when imposing the penalties.

There was substantial evidence in the record to support the ALJ's
explicit finding that the violations contributed to the injuries from the
roof fall, and therefore the decision of the ALJ should be affirmed in
its entirety. I respectfully dissent.
_________________________________________________________________
*The ALJ could have chosen to impose the same penalties without a
finding of causation. On remand, he may either more clearly find causa-
tion, or more clearly base his imposition of the penalties solely on the
mine's gross negligence in repeatedly ignoring the warnings of its work-
ers about the unsafe ground conditions. Because either finding would be
supported by substantial evidence, I believe that our remand today is
pointless.

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