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[DOCID: f:va9868.wais]
BEAR RIDGE MINING, INC.
May 28, 1999
VA 98-68
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 28, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 98-68
Petitioner : A. C. No. 44-06227-03583
v. :
:
BEAR RIDGE MINING, INC., :
Respondent : No. 1 Mine
DECISION
Appearances: Daniel M. Barish, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
on behalf of Petitioner;
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge,
Abingdon, Virginia, on behalf of Respondent.
Before: Judge Melick
This case is before me upon the Petition for Civil Penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801, et
seq., the "Act," charging Bear Ridge Mining Inc. (Bear Ridge)
with one violation of the mandatory standard at 30 C.F.R. �
75.202(a) and seeking a civil penalty of $40,000.00 for that
violation. The general issue before me is whether Bear Ridge
committed the violation as alleged and, if so, what is the
appropriate civil penalty to be assessed considering the criteria
under Section 110(i) of the Act.
The citation at issue, No. 7293918, alleges as follows:
The mine roof in the area of the left coal rib,
located approximately 70 feet inby survey station
No. 2156, in the No. 6 entry on the 001-0- MMU,
was not supported or otherwise controlled to
protect persons from hazards related to falls of
the mine roof. The Section Foreman removed three
wood cribs using a rubber tired battery powered
scoop. After the cribs were removed no action was
taken to support or otherwise control the mine
roof in the area of the left coal rib prior to the
foreman and one other person working in the area.
The foreman received fatal injuries when struck by
a section of the mine roof 44" by "58 by 8" that
fell in the area where the cribs had been removed.
The cited standard, 30 C.F.R. � 75.202(a), provides that
"[t]he roof, face and ribs of areas where persons shall work or
travel shall be supported or otherwise controlled to protect
persons from hazards related to falls of the roof, face or ribs
and coal or rock bursts."
On March 23, 1998, at approximately 4:30 p.m., Bear Ridge
section foreman Bruce Bandy was killed by a rock fall from
the mine roof along the left rib of the No. 6 entry.
Several days earlier, on March 17, David Elswick, a roof
control specialist for the Virginia Department of Mines,
Minerals and Energy (DMME), was investigating an earlier
roof fall at the subject mine at the right crosscut of the
same No. 6 entry. During the course of his investigation
Elswick noted that there were five cribs on the right side
of the No. 6 entry with some additional cribs on the left
side. After evaluating the roof in the right crosscut off
the No. 6 entry with state mine inspector Altizer, roof
control specialist Kenneth Shortridge from the Federal Mine
Safety and Health Administration (MSHA), mine superintendent
Tim Lowe and two miners' representatives, it was initially
decided to clean the crosscut through the No. 6 entry.
Because of concerns of another state inspector it was then
decided to cut through the No. 5 crosscut after
rehabilitating the roof in both the No. 5 and 6 entries. It
was also agreed that eight-foot point anchor roof bolts
would be installed before the No. 5 crosscut would be cut
through. In addition, it was decided by the group that
additional cribs would be added in the intersection before
cutting through the No. 5 crosscut. In this regard Elswick
suggested that the left side cribs in the No. 6 entry could
be used and reset in the intersection prior to cutting
through the No. 5 crosscut. Elswick specifically recalls
examining the area near the cribs for draw rock and found
nothing abnormal. No one from the group dissented from this
plan, including the removal of the left side cribs in the
No. 6 entry, and Elswick therefore assumed that everyone had
agreed to it.
Elswick returned to the same area following the fatal
rock fall on March 23rd to secure the area. He was satisfied
that the roof was adequately supported because the eight-
foot roof bolts had been installed. Elswick opined that the
roof was adequately supported even without cribs. The DMME
did not issue any warnings or citations as a result of the
fatal rock fall. In particular, Elswick concluded that there
was nothing wrong with removing the cribs on the left side
of the No. 6 entry as the deceased had done. Indeed,
Elswick did not believe that a reasonably prudent person
would have done anything different from the procedures
followed by Bandy. Moreover, he saw nothing on his earlier
visit on March 17th that would have warranted not removing
the cribs.
Michael McGlothlin, a continuous mining machine helper,
while employed by Bear Ridge only since 1997, has been a
miner for 18 years. He is a certified mine foreman but at
the time of the accident was working as a miner helper on
the second shift under the deceased, foreman Michael Bandy.
According to McGlothlin, Bandy was the "safest boss" he had
ever worked for. Bandy had arrived earlier on the scoop.
Three sets of cribs along the left side of the No. 6 entry
were to be removed. According to McGlothlin he and Bandy
both examined the roof before removing the first crib.
Bandy then pushed it away and sat for 20 to 30 seconds in
the scoop looking at the top again before repeating this
procedure. Bandy examined the roof while seated on the
scoop and then, off the scoop, from the side of the scoop.
McGlothlin also moved inby the scoop and from that position
again looked at the roof. He found no indication that any
rock would fall. After the first blocks were removed he and
Bandy talked for a while and continued watching the top.
McGlothlin threw some of the blocks aside. They both
continued to look at the roof and saw nothing to indicate an
imminent rock fall. McGlothlin agreed that the roof was
"bad" but it had been double bolted and he determined that
it was supported. McGlothlin also testified that none of the
slips that were in the roof extended into the area where the
rock fell. According to McGlothlin Bandy did nothing that
was substandard either in his observations of the roof or
removal of the cribs. In addition he concluded that
sounding the roof would not have disclosed the rock fall
because the entire top sounded drummy. McGlothlin did not
hear the roof "working" prior to the rock fall and there was
no flaking or popping. It was after Bandy had again
examined the top, moved to the side of the scoop and looked
again before he picked up some blocks and the rock fell.
This Commission in Secretary v. Canon Coal Company, 9
FMSHRC 667, 668 (April 1987) stated in reference to the proper
method of interpreting the nearly identical language of
predecessor 30 C.F.R. � 75.200, that questions of liability
must be resolved by reference to whether a reasonably
prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized
the hazardous condition that the standard seeks to prevent.
More specifically the Commission stated that the adequacy of
particular roof support or other control must be measured
against the test of whether the support or control is what a
reasonably prudent person, familiar with the mining industry
and protective purposes of the standard, would have provided
in order to meet the protection intended by the standard.
The Commission further emphasized that the "reasonably
prudent person test" contemplates an objective, not
subjective, analysis of all the surrounding circumstances,
factors, and considerations bearing on the inquiry at issue.
See also, Secretary v. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1277 (December 1998).
Within this framework I note that the two persons most
qualified to meet the reasonably prudent person test were
the deceased Michael Bandy and miner operator helper Michael
McGlothlin. These were the only persons in a position to
make a timely and objective analysis of the surrounding
circumstances relevant to an appropriate inquiry of the roof
conditions at the time of the rock fall. In this regard I
accord McGlothlin's testimony significant weight. He is a
certified mine foreman with 18 years mining experience.
Both he and the deceased, also a mine foreman, were well-
qualified by experience and observations to have properly
assessed the roof conditions immediately before the roof
fall. They both examined the subject roof from several
different perspectives and concluded that it was adequately
supported before Bandy proceeded beneath the area that fell.
Other roof control experts also testified concerning
conditions at various times before and after the rock fall
and corroborate McGlothlin's observations. MSHA roof
control specialist Harold Musik was at the scene shortly
after the fatal rock fall and found that the roof was
"supported." Indeed, he found that the original four-foot
roof bolts inserted according to the roof control plan plus
the rebolting bolt-for-bolt with eight-foot roof bolts
constituted "intense" control. Musik opined that even when
a roof is intensely supported as it was here you
nevertheless can have a rock fall. He found no indications
that the rock would have been observably loose before it
fell. Moreover, Musik found nothing that would indicate
that Bandy did anything substandard.
MSHA mining engineer Linda Hrovatic also corroborated
that the area around the fatal roof fall had been heavily
bolted and opined that the bolting had been in accordance
with sound mining practices. Indeed, she concluded that the
area was "supported roof." She saw nothing suggesting that
the rock would have been visible as a hazard before it had
fallen. MSHA supervisor of inspectors, Larry Worrell, also
confirmed that there had been substantial roof bolting in
the area of the roof fall and that the bolting had been done
in a workmanlike manner. He knew of no actions by Bandy
that he considered negligent or not prudent.
Finally, Virginia State mine inspector Daniel Altizer,
who was at the accident scene that same night, observed that
there were as many roof bolts in the affected area as he had
ever seen anywhere. He also agreed that a "sound and
vibration" method of roof testing was not necessary in that
area since the roof conditions were known and the entire
roof would sound drummy in any event. In sum, following the
roof fall accident eight inspectors, supervisors and roof
control experts from two regulatory agencies investigated
the scene, six from MSHA and two from DMME, and three of
those from MSHA and the two from DMME concluded that the No.
6 entry was fully supported even after the removal of the
cribs.
In reviewing the evidence I have oted the testimony of
several of the Secretary's witnesses who now maintain that
the procedures followed by foreman Bandy (in removing the
cribs on the left side of the No. 6 entry before cutting the
5 right crosscut), were unsafe. However, it is apparent
that this was not the Secretary's position before the fatal
rock fall. It is clear from the credible evidence that the
Secretary, through its agent, roof control specialist
Shortridge not only acquiesced in, but affirmatively
approved the precise procedures followed by Bandy now
criticized by the Secretary. The testimony of DMME roof
control specialist David Elswick is particularly probative
in this regard. Elswick's credibility is unchallenged and
his recollection is particularly convincing. As previously
noted, Elswick testified that, following the March 16 roof
fall in the 6 right crosscut, a group of state and federal
roof control specialists met on March 17th and agreed,
without dissent, to the precise procedures followed by Bandy
on March 23rd. Elswick's testimony is not only credible in
itself but is fully corroborated by the testimony of mine
superintendent Tim Lowe, who was also present when this
agreement was reached.
While the Secretary also appeared to question the
recollection of these witnesses regarding the existence of
three sets of cribs along the left side of the No. 6 entry
on March 17th, Elswick, Lowe and Daniel Houchins, an
employee of Bear Ridge and union committeeman, all testified
as to the existence of cribs on both the right and left side
of the No. 6 entry on the 17th of March. In addition, Brian
Salyers, another Bear Ridge employee, testified that he had
helped build the three sets of cribs along the left side of
the No. 6 entry. He felt that the area had been properly
supported once the supplemental eight-foot roof bolts had
been inserted. Salyers, who is also a certified mine
foreman, further testified that it was common practice to
remove cribs prior to cutting through. He also opined that
Bandy, who he knew very well, was probably the safest person
he had ever worked with. He agreed that it would do no good
to sound the roof in this area since the entire roof would
have sounded drummy. He agreed that once the eight-foot
bolts had been inserted, the roof was indeed "supported."
He further testified that there were no cracks in the roof
on the left side of the No. 6 entry at the time they
installed the cribs on March 16th or 17th. He specifically
recalled that the arrangement with the state and Federal
inspectors, including MSHA Inspector Shortridge, was that
once they rebolted the No. 6 entry they would then remove
the three cribs on the left side before cutting through the
crosscut.
On the day of the accident, Salyers was in the area
before the fall at 10 or 11 a.m. He checked the three cribs
on the left side of the No. 6 entry and checked the top. He
tapped the wedges on the cribs with a hammer and indeed found
that there was no weight on them. He saw no unusual hazard. He
concluded that even had the cribs been removed, the roof was
adequately supported because of the insertion of the eight-
foot roof bolts. It was his opinion that the cribs on the
left side were no longer necessary once the eight-foot bolts
had been inserted. Under all the circumstances I give but
little weight to Inspector Shortridge's absence of a
recollection of the cribs on the left side of the No. 6
entry.
The Secretary also claims that Bandy was negligent and
did not act prudently when he failed to "sound" the roof in
the vicinity of the rock fall. However, as noted, the
overwhelming credible evidence is that such efforts would
have been futile and likely to have been a reckless and
dangerous act in itself. Indeed, the credible evidence is
that not even the MSHA inspectors and investigators
themselves sounded the roof while in this area. The roof
was admittedly in bad condition and it has been established
by credible evidence that the entire roof would have sounded
drummy in any event.
Within the above framework of evidence it is clear that
the Secretary has failed to sustain her burden of proving a
violation as charged. The overwhelming weight of credible
evidence, based on the testimony of reasonably prudent
persons, is that the existing roof control met the
protective requirements of the cited standard.
ORDER
Citation No. 7293918 is hereby vacated.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P.O. Box 2288,
Abingdon, VA 24212
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