Reversing a judge’s decision in a case involving a fatal roof fall, the Federal Mine Safety and Health Review Commission has gone against its own precedent, refusing to apply the reasonably prudent person test as to whether additional roof support was necessary where persons work or travel. Under Commission case law, that test is “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.” 

In June 2012, now-retired Administrative Law Judge (ALJ) Avram Weisberger vacated a citation MSHA had issued to Jim Walter Resources, Inc. (JWR) following the 2006 death of a miner at the operator’s No. 7 Mine in Alabama. Weisberger vacated the citation in the JWR case because “MSHA failed to prove there were objective indicia prior to the roof fall that would have alerted a reasonably prudent person that additional roof support was necessary, ” according to the Commission in 1987 in Canon Coal Co. 

The facts of the two cases were similar: a fatality had occurred from a roof fall and MSHA had cited the operator under a standard, now found at 30 CFR § 75.202(a), that requires underground coal operators to provide protection from hazards related to roof falls where persons work or travel. In Canon, the Commission had ruled that application of the reasonably prudent test was appropriate.

But the commissioners disagreed with the judge’s disposition in JWR. The MSHA inspector, they recounted, found the victim lying fatally injured beneath a large roof fall. “Accordingly, the only conclusion to be reached is that the roof was not supported to protect the miner from a roof fall,” they wrote in their March 31 decision. It followed that blame should be placed with the operator under the strict liability mandate of the Mine Act, they stated. Unlike Weisberger, the commissioners also held that the accident had occurred in an area where the victim was performing “work or travel.” Weisberger had determined that rocks in the pathway precluded that conclusion. The decision is available at: http://www.fmshrc.gov/decisions/commission/COMMd_33 12015-SE%202007-203-R%20SE%202007- 294%20%28Jim%20Walter%20Resources%20Inc.%29.pdf.

Despite the apparent similarity between the two cases, the commissioners brushed aside Canon. “We recognize that the decision in Canon Coal Co., 9 FMSHRC 667 (Apr. 1987), was reached in a factual context similar to the present case,” they said in a footnote. “However, in light of the determination …[that the roof in this case, located in an area where persons work or travel, was not supported], we decline to follow the Canon decision.”

Commissioners Patrick Nakamura and William Althen declined to say the present case was a springboard for applying either the reasonably prudent test or one of strict liability “across the board” in future cases. They stated, “It is sufficient here to find that the roof in this case, located in an area where persons work or travel, was not supported.”

However, Commissioner Robert F. Cohen, Jr. did not share their reluctance. “A roof that falls and kills a miner was obviously not supported ‘to protect persons from hazards related to falls of the roof’ as required by the safety standard,” he wrote in an otherwise concurring opinion. “Because the Commission’s holding in Canon Coal conflicts with both the language of the safety standard and the Mine Act, I have to conclude that it was wrongly decided.”

The commissioners vacated Weisberger’s decision and remanded the case to the Chief ALJ for further proceedings, including consideration of whether the citation was appropriately classified as significant and substantial and whether the agency’s proposed $35,500 penalty was appropriate.