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[DOCID: f:w-93-402.wais]
UTAH FUEL COMPANY
August 23, 1996
WEST 93-402
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
August 23, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-402
Petitioner : A.C. No. 42-01435-03549
:
v. : Skyline Mine #1
:
UTAH FUEL COMPANY, :
Respondent :
DECISION
Appearances: Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner; Michael L. Larsen, Esq.,
Elisabeth R. Blattner,Esq., Salt Lake City, Utah,
for Respondent.
Before: Judge Cetti
This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � et seq. the "Act". The
Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges Utah Fuel Company (Utah Fuel)
with the violation of three mandatory safety standards. Utah
Fuel is the operator of the underground coal mine, Skyline No. 1
located in Carbon County, Utah. MSHA issued the citations after
its investigation of a fatal rib and roof fall accident. Utah
Fuel timely contested each of the three alleged violations.
I
THE ACCIDENT
Tom Kubota, while working with a crew, rehabilitating a
previously caved area in the underground coal mine sustained
fatal injuries in a fall of rib and roof rock accident. The
accident occurred in a previously caved area in the No. 3 entry
of the 6 Left Tailgate Developmental section between crosscuts
Nos. 71 and 72 of the Skyline Mine No. 1. At the time of the
accident the decedent was kneeling on the head of a continuous
mining machine, trimming (cutting to fit with a torch) a steel
crossbar in preparation to installing the crossbar as a part of
the rehabilitation of the previously caved area. The size of the
rock that fell was approximately 6 feet long by 5 feet wide by 2
feet thick.
II
ISSUES
After due notice, a four-day hearing on the merits was held
in Salt Lake City. At the hearing the parties presented oral and
documentary evidence, including a total of 131 exhibits. The
parties filed post-trial briefs which I have considered in reach-
ing this decision.
The issues at the hearing were as follows:
1. Citation No. 3850249
(a) Did Utah Fuel violate C.F.R. � 75.202(a)?
(b) If the standard was violated: (1) Was it a signifi-
cant and substantial violation? (2) What is the appropriate
penalty?
2. Citation No. 3412737
(a) Did Utah Fuel violate 30 C.F.R. � 75.211(b)?
(b) If this standard was violated: (1) Was the
viola-tion of a significant and substantial nature?
(2) Was the viola-tion a result of the operator's
unwarrantable failure to comply with the safety standard?
(3) What is the appropriate penalty?
3. Citation No. 3412738
(a) Did Utah Fuel violate 30 C.F.R. � 75.223(a)?
(b) If the standard was violated. (1) Was the
violation of a significant and substantial nature? (2) What
is the appropriate penalty?
III
STIPULATED FACTS AND STATEMENT OF MATTERS NOT IN DISPUTE
A. Utah Fuel is engaged in mining and selling of coal in
the United States and its mining operations affect inter-
state commerce.
B. Utah Fuel Company is the owner and operator of Skyline
Mine No. 1, MSHA I.D. No. 4201435.
C. Utah Fuel Company is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 801
et seq. ("the Act").
D. The Administrative Law Judge has jurisdiction in this
matter.
E. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may
be admitted into evidence for the purpose of establishing
their issuance, and not for the truthfulness or relevancy of
any statements asserted therein.
F. The exhibits offered by Respondent and the Secretary are
stipulated to be authentic.
G. The proposed penalties will not affect Respondent's
ability to continue in business.
H. The operator demonstrated good faith in abating the
violations.
I. At the time of the roof fall on February 11, 1992, Utah
Fuel Company was operating under its Roof Control Plan
approved by MSHA on November 27, 1991.
J. Utah Fuel complied with 30 C.F.R. � 50.20-5(a) in
reporting the three prior roof falls and one prior lost time
accident referenced in Citation No. 3412738.
K. The certified copies of the MSHA Assessed Violations
History (Ex. P-10) accurately reflects the history of this
mine for the two years prior to the date of the citations.
L. Utah Fuel is not contesting the Imminent Danger Order
No. 3850248 issued in conjunction with Citation No. 3850249
to the extent that the imminent danger order relates to the
con-dition which existed after the roof-fall accident. (Tr.
17-18).
IV
THE MINE - UNDISPUTED FACTUAL INFORMATION
The Skyline Mine No. 1 is an underground coal mine
located at Scofield, Carbon County, Utah. The mine portals were
devel-oped in August 1982. The mine was then idled until
January 1988, when full production was started. At the time
of the accident, the mine operated one retreating longwall
and three continuous mining machine sections in the Upper
O'Conner coal seam. Numer- ous faults and dikes are associated
with this coal seam. The coalbed dips five degrees to the
southwest and is accessed by four entries located near the main
surface facilities. It also has three return air portals. The
mine produced 3,594,110 tons of steam coal in 1991. The coal is
taken to the surface by conveyer belts and then transported
by truck and railroad to various customers.
Panel entries are developed in sets of three, off the Main
West entries. These entries were driven about 18 to 20 feet
wide on varying center dimensions with connecting crosscuts
for an average distance of approximately 7,000 to 9,000
feet. The en-tries were developed with continuous mining
machines for the purpose of installing retreat longwalls.
At the time of the accident, four longwall panels had been
successfully extracted.
A total of 119 miners are employed. They work underground
on three rotating shifts per day, five days a week. The
mine produces an average of 9,822 tons per day.
The approved roof control plan for Skyline Mine No. 1 at
the time of the accident was a full roof-bolting plan with the
mini-mum length of bolts being 48 inches, installed on 5-
foot centers. When adverse roof was encountered, 10-foot
point anchor bolts were used. Roof trusses, wood, or steel
square sets could be in-stalled or a number of supplementary
support materials could be used as needed, depending on the
mining conditions.
Ventilation of the mine was accomplished by a 16-blade
propeller type fan properly installed on the surface. The fan
is equipped with a 300 HP motor with all necessary safety
devices and operates continuously. The fan induces a
blowing system of ventilation with a positive pressure of
3.4 inches of water gauge at about 409,150 C.F.M. The mine
does not liberate methane gas.
The day before the accident, the last regular MSHA safety
and health inspection was completed.
V
After the fatal rock fall accident, MSHA's inspectors
Richard Bury and Bruce Andrews went to the mine and
investigated the accident. Their Accident Investigation
Report received in evidence as Government Exhibit 4
concisely states many of the undisputed facts which were
affirmed by testimony of witness at the hearing. Prior to
the accident, work was in progress to rehabilitate the
previously caved domed-out area in the No. 3 entry return of
the 6 Left Tailgate Development section between crosscuts
No. 71 and 72.
At approximately 8 a.m. (about 3 1/2 hours before the acci-
dent), the section foreman, Zabriskie, held a meeting with
the rehabilitation crew on the surface of the mine. At this
meeting the crew was instructed on how rehabilitation work
of the previously caved area in the No. 3 entry between
crosscut Nos. 71 and 72 was to take place.
The rehabilitation plan called for the installation of steel
crossbars beginning under supported roof on both the inby
and outby ends of the faulted area and work towards each
other until the last span, a distance of approximately 20
feet which was unsupported, could be supported by laying
galvanized metal beams, skin to skin, across the last set of
steel crossbars.
After the instructions, given at the meeting at the surface,
the rehabilitation crew proceeded underground to the section
where they were met by Gary Long, fireboss/leadman (who had
already been given this instruction), and Kurt Clawson,
contin-uous mining machine operator. After viewing the work
site and observing no hazardous conditions, the crew then
began doing the necessary preparatory work prior to the
installation of the steel sets. This work consisted of
cleaning with the continuous mining machine from the inby
end. Two and one-half ram cars of rock were removed from
the area where the outby sets were to be installed. Because
of the span of unsupported roof, this was done with the
continuous mining machine being operated remotely. After
the cleanup was completed, measurements were taken and the
first sets of crossbars to be installed on the outby end
were cut to length.
Zabriskie, the section foreman, and Long, the leadman,
de-cided that the safest way to move the sets to where they
were needed would be to load them on the head of the
continuous mining machine and remotely tram them to the work
area. After shutting off the breaker to the cutter head,
the machine was trammed re-motely through the unsupported
top to the outby work area. With the head of the continuous
mining machine positioned under sup-ported roof, the support
leg on the east side of the entry was positioned. Long and
Tom Kubota, standing on the head of the machine, remeasured
for the crossbar and found that an additional piece of the
crossbar needed to be cut off before the bar would fit.
Kubota, while standing on the ground in front of the ma-
chine, cut the first bar to the proper length. He then
climbed onto the head of the continuous mining machine, and
in a kneeling position with his back to the west rib, began
to cut the second crossbar. With little or no warning, the
west rib and associated roof rock collapsed, striking and
completely covering Kubota.
Due to the very unstable ground conditions that were
present immediately after the fall, Long instructed the
continuous mining machine operator, to remotely tram the machine
back to the inby end of the area, where the roof was supported
prior to the rock being removed from Kubota. This was done
for the safety of the miners engaged in the rescue effort.
Kubota was taken to the Castleview Hospital in Price, Utah,
where he succumbed to his injuries.
The previously caved area that the tailgate development
section crew (including Kubota) were rehabilitating was a
caved domed out area, approximately 18 feet wide and 20 feet
high. Whereas the coal seam mining height was only about 9
feet high. There was an area of unsupported roof and rib in
the caved out domed area. Wooden cribs, constructed in a
single and triple configuration, were installed on each side
of the No. 3 entry, ending approximately 7 feet outby the
outby brow of the cave. The outby edge of the brow was
supported with 6-foot resin grouted roof bolts. One
crossbar leg, an 8-inch "I" beam, had been installed on the
east rib.
In an effort to reduce air slacking and the spilling of rock
throughout the 18-foot wide, 20 foot-high caved area, 30
yards of shotcrete had been applied to the roof of the caved
area a few days before the accident. The shotcrete was
applied to the caved area roof and ribs by miners working
under the roof that was supported and stable.
VI
Citation No. 3850249
This citation alleges a violation of 30 C.F.R. � 75.202(a)
which requires the following:
(a) The roof, face and ribs of areas where
persons 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.
Subsection (b) of the above quoted section provides:
(b) No person shall work or travel under
unsupported roof unless in accordance with
this subpart.
MSHA did not cite or charge Respondent with a violation of
subsection (b) and the evidence presented at the hearing satis-
factorily established that no person worked or traveled under
unsupported roof.
The citation charges Respondent with a violation of sub-
section (a) of � 75.202 as follows:
Hazardous roof and rib conditions were
present in the #3 entry, between crosscuts
No. 71 and 72, in the 6 Left Tailgate Devel-
opment Section. The rock through this area
consisted of unconsolidated sand and slit
(sic) stones and had fallen out to a height
of approximately 20 feet, resulting in very
high ribs of questionable stability. In
addition, an area of roof approximately 20
feet in length had been left unsupported.
Shotcrete from a remote location had been
applied to the roof and ribs making it very
difficult to observe any hazardous condition
and virtually impossible to determine where
the last row of permanent supports had been
installed. A fall of rib and roof rock in
this area resulted in fatal injuries to one
(1) employee.
There is no dispute that these hazardous roof and rib
conditions were present in the #3 entry, between crosscuts Nos.
71 and 72, in the 6 Left Tailgate Development section and that
rock through this area consisted of unconsolidated sand and silt
stones and had fallen out to a height of approximately 20 feet
and thus carving out a 20-foot high dome in the caved area.
It was this hazardous roof condition described in the cita-
tion that Respondent's rehabilitation team, including Kubota, was
in the process of rehabilitating so as to make the area safe for
the miners. The roof of the caved area had been supported with
roof bolts and mesh wherever conditions allowed. Due to the
height of the cave, the angle of the dome and the fractured and
laminated conditions approximately 15 to 18 feet of roof could
not be bolted. Consequently, the entire area was dangered-off
from both ends (inby and outby) of the cave. Pursuant to its
rehabilitation plan, shotcrete was applied over the roof and sur-
face of the cave. Next, multiple steel sets were to be built and
placed at both ends of the cave, proceeding inward into the cave
to the last row of roof bolts on each side. Each steel set would
be wedged to the roof as it was placed. Steel I-beams then would
be placed skin-to-skin from the steel sets inby to the steel sets
outby to span the unbolted area. Roof jacks would be placed on
top of the I-beams to provide support from the structure to the
roof, and cribs would be placed below the I-beams to provide
support from the floor to the structure. The structure would
then be lagged to form a tunnel, bulkheaded at both ends, and the
cavern above pumped full of aqualite (a lightweight concrete).
Respondent presented evidence that the miners in the reha-
bilitation team were trained in the rehabilitation plan and knew
where supported roof ended. Only those miners on the rehabili-
tation team were allowed inside the dangered-off area.
To establish a violation of 202(a), the preponderance of the
evidence must be established that the area in question was (1) an
area "where persons work or travel" and (2) an area that was not
"supported or otherwise controlled to protect persons." The
preponderance of the evidence does not establish either of these
elements.
The domed-out cave area in question was not an area "where
people work or travel" within the meaning of section 202(a). In
Cyprus Empire Corporation, 12 FMSHRC 911 (May 1990) that Commis-
sion determined that areas where persons work or travel do not
include areas which are dangered-off and in which the only work
being performed is rehabilitation work. Whether a person worked
or traveled or was required to enter the area was viewed in light
of "normal circumstances." The fact that miners entered the
dangered-off area to install needed roof support did not make the
dangered-off area one "where persons worked or travel" within the
meaning of subsection 212(a). The Commission in reversing the
Administrative Law Judge's decision to the contrary stated:
Cyprus argues that the judge erred in con cluding that it violated
Section 75.202(a) for two reasons: (1) under the cited stan dard the
area at issue was not an area "where persons work or travel;" and
(2) "dangering-off" the area is an acceptable form of "control" of the
roof. Because we find the first issue dispositive, we need not reach
the second.
To establish a violation of 30 C.F.R. � 75.202(a), the Secretary
was required by the terms of the standard to prove that the cited area
was an area "where persons work or tra-vel." As discussed above, the judge
found that "under normal circumstances, the tail-gate end of the long wall
would allow a miner to come directly off the long wall into the return entry.
" 11 FMSHRC 3376 (emphasis added). What the judge did not consider, however,
is whether "normal circumstances" are presented here.
The record in this case establishes that as soon as Cyprus encountered
the poor roof conditions, it dangered off the area to prevent miners from
entering the area of adverse roof conditions. In doing so, Cyprus acted in
accordance with accepted safe-mining practice. There is no evidence that at
any time during the existence of the dangerous roof conditions, other than
during the attempt to install additional roof support, any miner worked or
traveled in the cited area. . . . Thus, the record established that the
operator acted appropriately in dangering off the area of bad roof and that
no miners worked, traveled or were required to enter the area at issue.
In the instant case, large, readily visible danger signs had
been properly placed on both the inby and outby ends of the cave
area prohibiting travel. No persons were allowed to work or
travel in this properly dangered-off area. The only exception
was the recognized permissible exception of those members of the
rehabilitation crew who were doing the rehabilitation work under
supported roof. Dangering-off a hazardous area, as was done
here, is a recognized means to control so as to protect persons
from hazards related to falls of the roof and ribs.
A preponderance of the evidence presented fails to establish
a violation of the cited standard, subsection (a) of section
75.202.
VII
Citation No. 3412737
Citation 3412737 alleges a violation of 30 C.F.R. � 75.211
subsection (b) � 75.211 in pertinent part subsection (a) and (b)
mandates the following:
(a) A visual examination of the roof, face
and ribs shall be made immediately before any
work is started in an area and thereafter as
conditions warrant.
(b) Where the mining height permits and the
visual examination does not disclose a haz-
ardous condition, sound and vibration roof
tests, or other equivalent tests, shall be
made where supports are to be installed.
There is no dispute that Respondent fully complied with the
requirement of subsection (a). A visual examination of the roof
and ribs was made by experienced miners immediately before any
rehabilitation work started in the area. This examination did
not disclose a hazardous condition.
Respondents are charged with a violation of subsection (b)
of section 75.211. That subsection requires "sound and vibration
roof tests" or other equivalent tests "where mining height
permits." It does not specify what tool to use, what length the
tool must be, or set a height limit for testing. It is clear,
however, as discussed below in more detail, that in order to
perform a sound and vibration test the height cannot exceed the
ability of the tester to place the fingers of the free hand
against the roof.
I credit the testimony of Gary Long and I find that Long
made a proper sound and vibration test in the area in question
"where mining heights permits."
A sound and vibration test requires the miner to hold the
tool in one hand, place the fingers of the other hand against the
roof, thump the roof with the tool, listen for the sound, and
feel for vibrations. See Long, T.433:20; accord Davidson,
T.338:13-20. See also Respondent Ex. 61, pg. 71. Consequently,
mining heights do not permit a sound and vibration test where the
roof is higher than the tester's extended arm and hand can reach
the roof. Mr. Long testified that he is 6'2" tall, that he
tapped "down low to begin with, and when the miner got into the
area where I could get on it, I got on the head and tapped up
higher, as high as I could reach."
Mr. Ralston tapped the roof with the tapping head of a 12"
long tool, a Rastall. He had years of experience testing roofs
and ribs with this acceptable tool. No evidence was presented
that simply sounding the roof without checking it for vibration
was in fact equivalent to the "sound and vibration" test.
The preponderance of the evidence presented fails to estab-
lish a violation of the cited safety standard subsection (b) of
section 75.211.
VIII
Citation No. 3412738
This citation alleges a violation of C.F.R. � 75.223(a).
This safety standard provides as follows:
(a) Revisions of the roof control plan shall be proposed
by the operator-
(1) When conditions indicate that the plan is not suitable
for controlling the roof, face, ribs, or coal or rock bursts; or
(2) When accident and injury experience at the mine indicates
the plan is inadequate. The accident and injury experience at
each mine shall be reviewed at least every six months.
The citation issued by MSHA to the Operator reads as
follows:
The Skyline Mine No. 1 has had 3 unintention-
al roof falls in the last 4 months the dates
of falls are 10/22/91, 10/28/91 and 11/12/91,
this mine has also had a lost time accident
on 12/30/91 due to a rib roll. The operator
has not revised or requested a revision of
the Roof Control Plan as required by the Code
of Fedralations [sic] 30 CFR 75.223(a) which
requires this operator to submit this to an
authorized representive [sic] of the Secre-
tary. This falls and accidents were prior to
the fatal fall of roof which resulted in
fatal injuries to one person on 2/11/92.
Thus, MSHA's citation points to the three unintentional roof
falls and one lost time accident in the four months before the
fall that struck Kubota and asserts that Utah Fuel "has not
revised or requested a revision of the roof control plan as
required by 30 C.F.R. � 75.223(a).
The evidence at the hearing established that the four prior
incidents required only one revision to Utah Fuel's roof control
plan before the roof fall of February 11, 1992, and that the
required revision was incorporated into Utah Fuel's roof control
plan approved by MSHA on November 27, 1991, approximately 2 1/2
months before the February 11, 1992, accident. The evidence
establishes that three falls and one lost time accident occurred;
that Utah Fuel determined the causes of the roof falls and that
Utah Fuel determined the only revision needed to be made to the
roof plan at that time, was incorporated in its roof control plan
by MSHA's approval of the revised plan on the 27th day of Novem-
ber 1992, 2 1/2 months before the February 11, 1992, accident.
IX
Before the hearing, Utah Fuel submitted a prehearing memo-
randum of points and authorities. During the hearing, the par-
ties presented the testimony of 14 witnesses and 139 exhibits.
The parties stipulated to a number of material facts. Following
the hearing, both parties submitted post-hearing memoranda. Utah
Fuel submitted proposed findings of fact and conclusions of law;
MSHA did not.
Having heard, considered, and evaluated the testimony of all
witnesses, the exhibits, the stipulations by the parties, and the
arguments of the parties at trial and in their pre- and post-
hearing memoranda, I enter the following findings of fact and
conclusions of law based upon the evidence presented and the
reasonable inferences to be drawn from the evidence presented.
X
FINDINGS OF FACT
1. Utah Fuel is engaged in the mining and selling of coal
in the United States and its mining operations affect interstate
commerce.
2. Utah Fuel is the owner and operator of Skyline Mine No.
1, MSHA I.D. No. 42-01435.
3. Utah Fuel is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801.
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject citations were properly served by a duly
authorized representative of the Secretary upon Utah Fuel on the
dates and places stated therein.
6. Utah Fuel demonstrated good faith in timely abating the
citations.
7. On February 11, 1992, a fall of roof and rib rock
occurred in Skyline Mine No. 1, 6 Left Tailgate Section, No. 3
Entry, between crosscuts 71 and 72, which rock fall caused fatal
injuries to Tom Kubota, a Utah Fuel employee.
8. Mr. Kubota's death is the only fatality ever to occur at
the Skyline Mines.
9. At the time of the rock fall, Utah Fuel was operating
under its revised roof control plan approved by MSHA approxi-
mately 2 1/2 months before the accident.
10. Utah Fuel complied with 30 C.F.R. � 50.20-5 in reporting
the three prior roof falls and one prior lost time accident
referenced in Citation No. 3412738.
11. At the time in question, Utah Fuel produced more than
five million but less than ten million tons of coal annually.
12. At the time of the rock fall, Mr. Kubota was involved in
work to rehabilitate a caved area.
13. The cave formed in the No. 3 entry as Utah Fuel attempt-
ed to mine through a faulted section. As Utah Fuel progressed
down the entry, it encountered bad roof, and significant caving.
14. Utah Fuel's previous experience with faults indicated
that driving the No. 1 and No. 2 entries inby the problem area in
the No. 3 entry and then mining from the inby side out ("backmin-
ing") would have a positive effect on the mining conditions and
Utah Fuel's ability to mine through the fault.
15. Utah Fuel decided to backmine and proceeded to do so,
installing a variety of primary and supplemental roof supports,
and placing a readily visible danger sign and restrictive ribbon
across the No. 3 entry.
16. As Utah Fuel backmined and encountered the fault from
the inby end of the No. 3 entry, roof conditions deteriorated.
Utah Fuel shortened its cuts with the continuous miner to five
feet in length but caving still occurred, which resulted in
bolting problems.
17. The caving required the roof bolters to operate the
bolting machine on a ramp in order to reach the roof. The
resultant angle of the machine tipped the TRS (temporary
supports) on the machine back, making it unsafe to proceed.
18. To avoid exposing the roof bolters to these hazards,
Utah Fuel decided to cut through the coal block that remained in
one pass with the continuous miner (the "punch through") and then
rehabilitate the resulting cave in a way that would not expose
people to hazards.
19. Utah Fuel allowed the cave to "dome out" before begin-
ning rehabilitation work because Utah Fuel's past experience
indicated that allowing a cave to "dome out" increased its
stability. Utah Fuel allowed the cave to set before applying
shotcrete.
20. Conflicting evidence was introduced at the evidentiary
hearing concerning whether or not allowing a cave to dome out
leads to a state of equilibrium, and whether the caved area at
issue was in a state of equilibrium during the rehabilitation
work. Dr. Ben Seegmiller, an expert on work mechanics and roof
control systems with bachelor's degrees with honors in geological
engineering and mining engineering, a master's degree in mining
engineering with a specific emphasis on rock mechanics, and a
doctorate degree in mining engineering based on the study and
evaluation of acoustic energy into rock, gave his expert opinions
that allowing a cave to "dome out" would result in equilibrium,
and that the cave at issue reached equilibrium before rehabili-
tation efforts began and remained in equilibrium until the roof
falls that fatally injured Mr. Kubota.
21. MSHA did not seek to have Mr. Ponceroff qualified as an
expert. Mr. Hansen's opinion was offered by MSHA as an expert
opinion. Dr. Seegmiller's opinions were credible and persuasive.
22. Before the rehabilitation work began, Utah Fuel applied
shotcrete containing fiberglass to the roof and ribs of the cave
to stop the raining of rocks caused by air slacking and spalling.
23. MSHA recognized the utility of shotcrete as a sealant
and its application of shotcrete to the cave was reasonable.
24. Utah Fuel developed a rehabilitation plan for the cave
which called for the placement of steel sets under supported roof
on both the inby and outby sides of the cave. As each set was
placed, it would be supported to the roof before the next set was
placed. The sets would then be spanned with 22-foot long steel
Kennedy beams. The area above the beams to the roof and the area
under the beams to the floor would be supported with jacks and
cribs. Lagging then would be applied to the sides of the tunnel,
the cave edges above and around the tunnel would be sealed off,
and the cavity around the tunnel would be filled with a
lightweight concrete.
25. The rehabilitation plan did not call for anyone to work
beyond the last row of roof bolts at any time and no one did so.
26. Utah Fuel developed the rehabilitation plan, reviewed it
at the highest levels of mine management, and modified it before
rehabilitation work was begun.
27. Utah Fuel selected David Zabriskie's crew to do the
rehabilitation work because that crew had the most experience in
rehabilitation.
28. At the time of the accident, Foreman Zabriskie had
14.5 years mining experience, and Gary Long, Zabriskie's fire
boss, had 20 years mining experience, the last 10 of which
involved rehabilitation work.
29. At the time of the accident, Karl Clawson and Tom
Kubota, members of Zabriskie's crew, had prior experience
rehabilitating caves with steel sets.
30. Foreman Zabriskie and Fireboss Long, who were leading
the rehabilitation effort, were known to be safety-conscious
individuals who emphasized safety with their crew.
31. Crew members knew they were expected to communicate any
safety hazards or concerns they had to Long or Zabriskie, and
that those concerns would be acted upon.
32. On the morning of the accident, readily visible danger
signs prohibiting normal work or travel were present on both the
inby and outby side of the cave area.
33. The danger signs complied with the requirements of 30
C.F.R. � 75.212 for rehabilitation work.
34. Only those persons designated to rectify the hazard and
trained on the rehabilitation plan were allowed beyond the danger
signs.
35. During rehabilitation work, Karl Clawson was placed on
lookout on the inby side of the cave to prevent entry into the
area by unauthorized persons and to warn the other crewmen of any
change in conditions.
36. Everyone involved in the rehabilitation effort was
trained on the rehabilitation plan before they arrived at the
rehabilitation work site.
37. Utah Fuel employees involved in the formulation and the
execution of the rehabilitation plan felt the plan was safe. No
one voiced any concern about the safety of the plan.
38. No one who was not involved in the rehabilitation effort
proceeded past the danger signs posted inby and outby the cave
area.
39. On the outby side of the cave, in the area where the
rehabilitation work was being done, there was a roof mat with
four roof bolts present on the brow of the cave. See, Ex. R-45.
40. Inby of the roof mat, there was another row of roof
bolts, constituting the last row of bolts proceeding inby from
the outby side of the cave.
41. The last row of bolts consisted of five bolts, located
in an approximate line with the hanging bolt depicted on Ex. R-45
and in photograph Ex. R-54.
42. The last row of bolts was covered with shotcrete, but
the crew was able to and did discern the location of the bolts by
their visible outlines under the shotcrete.
43. Gary Long made sure the crew knew where the last row of
bolts was by pointing it out to them.
44. The testimony of every eyewitness to the accident was
that the last row of bolts was inby the brow and inby the row of
roof bolts with the mat at the brow.
45. Three used roof bolts were found in the material
resulting from the fall, one of which was found on top of Kubota
and the others in gob and material that fell from the roof.
46. There was no "lip" present on the floor of the cave
which prevented the head of the continuous miner from moving into
position under supported roof.
47. The head of the continuous miner was positioned under
supported roof at the time of the rock fall.
48. Based on the uncontroverted testimony of every eyewit-
ness to the accident, I find that at the time of the rock fall,
Kubota was located under permanently supported roof. Kubota was
up on the head of the continuous miner located between the row of
bolts securing the last roof mat at the brow and the row of bolts
further into the caved out area.
49. There was no indication that the support under which
Mr. Kubota was working was failing until an instant before the
roof fell when two small pieces of material dropped on
Mr. Kubota's hardhat.
50. The crew recognized and immediately acted upon that
warning--Mr. Clawson called out to Mr. Kubota, Mr. Kubota looked
up--but there was not enough time for Mr. Kubota to make it to
safety.
51. At least three roof bolts in the last row of bolts were
pulled out of the roof by the rock fall that struck Kubota and
one of the bolts lay on top of Kubota after the rock fall.
Sound and Vibration Test
52. Visual inspections of the work area done by Gary Long
and others were properly performed as required by subsection (a)
of section 202.
53. Before the work began, Gary Long did sound and vibration
tests on the roof and ribs in the area where the work was to be
done, with the exception of the roof inby the brow, which Long
could not reach because of the height of the roof in the caved
area.
54. Mr. Long conducted the sound and vibration tests using a
12" Rastall S12/H Miners Wrench, a combination tool designed as a
hammer, box-end wrench and adjustable-end wrench. The handle of
the wrench has a hammer end. The hammer end has a solid, flat
surface area of approximately one inch by 1/2 inch. The Rastall
tool is similar in size and weight to a geologist's hammer.
55. Standing on the ground and then up on the head of the
continuous miner, Mr. Long held the Rastall by the handle in one
hand, and used the hammer end of the Rastall to thump the roof,
feeling for vibration in the free hand and listening for the
sound being made.
56. Mr. Long did the tests as high as he could reach with
both hands from a position on the ground and then from a position
on the head of the continuous miner. He did not perform sound
and vibration tests on the roof inby the brow because, even
standing on the head of the continuous miner, it was too high to
perform a sound and vibration test.
57. Mr. Long had tested roofs with a Rastall or similar
device for at least four years before the Kubota accident,
performing thousands of tests in that timeframe, and was very
familiar and comfortable with the Rastall.
58. The sound and vibration tester's experience in conduct-
ing sound and vibration tests is one of the most important, if
not perhaps the most important, factor when conducting a sound
and vibration test.
59. When shaken, the Rastall can make a clicking or rattling
sound if the jaw is loose, which sound disappears when the jaw is
tightened.
60. When used to thump the roof three or four consecutive
times, the Rastall omits no rattling sound. After continued
thumping, the Rastall's jaw can loosen slightly and omit a slight
metallic rattling sound. Minimal effort is necessary to quickly
thumb-tighten the jaws before continuing with the test.
61. The metallic sound caused by the Rastall is a totally
different sound than the sound the tester is listening for in the
roof, and definitely distinguishable. The metallic sound did not
interfere with Long's performance of the sound and vibration
test.
62. The type of tool to be used for sound and vibration
tests is not specified in the Mine Safety and Health Act, 30
U.S.C. � 801 et seq.; Code of Federal Regulations, 30 C.F.R.
� 75.200 et seq.
63. The MSHA Roof and Rib Control Manual NMSHA-CE-003
likewise does not specify the tool to be used, stating merely
that the test should be done with a "solid object."
64. MSHA District Manager William Holgate stated in a letter
to Utah Fuel that a Rastall could be an appropriate tool; for
conducting sound and vibration tests. See Ex. R-67.
Roof Control Plan
65. On October 21, 1991, Utah Fuel experienced a reportable
roof fall in Skyline Mine No. 1, in the 6 Left Tailgate section,
No. 1 Entry, at crosscut 64. See Ex. P-19. The failure was
related to high horizontal stresses in the roof. No one was
injured in the fall.
66. At the time of the fall, Utah Fuel was engaged in an
extensive study of different types of longer torque-tension bolts
to help address horizontal movement problems, and already had
forms of support in its roof control plan to adequately control
the roof once it failed.
67. Utah Fuel's tensionable bolt study was scheduled to be
completed in Spring 1992. MSHA was aware of Utah Fuel's bolt
study and its estimated completion date and agreed with Utah Fuel
that a plan amendment concerning longer torque-tension bolts was
not necessary until the study was finished.
68. On October 27, 1991, Utah Fuel experienced a reportable
roof fall in Skyline Mine No. 1, in the 6 Left Tailgate Section,
at crosscut 4. The fall was caused by a wet roof condition. No
one was injured in the fall.
69. The fall indicated that a revision to Utah Fuel's plan
was needed. Utah Fuel, in conjunction with MSHA, determined that
providing drain holes in intersections would alleviate some of
the wet roof problems. Utah Fuel submitted a drain hole revision
to the roof control plan to address the wet roof situation. That
amendment was approved by MSHA as part of the November 27, 1991,
MSHA approved roof control plan.
70. During MSHA's investigation of each of the October
falls, MSHA's inspector Hanna may have had some discussion about
the use of six-foot torque tension bolts to prevent such falls.
However, following the October 1991 roof falls, Mr. Bunnell and
MSHA's Denver roof-control specialist, Mike Stanton, discussed
Utah Fuel's ongoing torque-tension bolt study. Mr. Stanton
agreed that Utah Fuel should continue the study, and was not
concerned that the study would not finish until Spring 1992.
Mr. Stanton told Mr. Bunnell it was not necessary to amend the
plan to a six-foot bolt at that time, and Bunnell understood that
no plan amendment was required with respect to roof bolts until
the bolt evaluation process was finished.
71. On November 10, 1991, Utah Fuel experienced a reportable
roof fall in Skyline Mine No. 1, in the 6 Left Tailgate Section,
No. 1 entry, at crosscuts 67-68. The fall occurred in a dike
section of the entry, and the failure was due to an undetected
fault within the dike. No one was injured in the fall.
72. Utah Fuel rehabilitated the cave resulting from the
November 10, 1991, falls with steel sets, a supplemental support
provided for in Utah Fuel's roof control plan.
73. The November falls did not indicate that a revision to
Utah Fuel's plan was needed.
74. In December 1991, Utah Fuel experienced a lost time
accident, which occurred when two miners were installing
supplemental roof bolts with a Cobra hand drill. The drill
vibrated and a loose slab of rock fell from the roof, striking
the miner on the foot. The incident did not indicate that an
amendment to the roof control plan was needed.
75. MSHA approved Utah Fuel's roof control plan on Novem-
ber 27, 1991, with knowledge of, and after having investigated,
the three prior roof falls.
76. From December 30, 1991, through January 21, 1992, MSHA
inspector Hanna, a roof-control specialist, conducted a section
75.223(d) six-month review and evaluation of the roof-control
plan, which review took into account all prior roof falls and
lost-time accidents.
77. As a result of his inspection, Inspector Hanna found no
MSHA violations in the 6 Left Tailgate Section, the same section
where the Kubota fall occurred two weeks later, and determined
that no revision to the roof control plan was needed.
78. MSHA did not call as witnesses Mike Stanton, the roof
specialist, nor Inspector Hanna, the only MSHA personnel in
direct contact with Utah Fuel during the roof control review
process. Evidence presented by Utah Fuel on the roof-control
plan revision issues is credible and persuasive.
XI
CONCLUSIONS OF LAW
1. Utah Fuel "supported or otherwise controlled" the roof
and ribs in the area referenced in Citation No. 3850249, Utah
Fuel did not violate 30 C.F.R. � 75.202(a).
2. By dangering-off the rehabilitation area, Utah Fuel
prevented miners from normal work and travel in that area, and
thereby, otherwise controlled the area as required by 30 C.F.R.
� 75.202(a).
3. Utah Fuel, through Fireboss Long, conducted visual
inspection and performed sound and vibration tests where mining
height permitted as required by 30 C.F.R. � 75.211(b)(2).
4. The Rastall used by Mr. Long is a solid object and an
adequate tool for conducting sound and vibration tests.
5. The violation of 30 C.F.R. � 75.211(b)(2) as alleged in
Citation No. 3412737 was not established.
6. As a result of the three prior roof falls, only one
revision to Utah Fuel's roof-control plan was reasonably and
foreseeably necessary before the fatal accident of February 11th.
That revision was approved by MSHA and the roof-control plan as
amended with this revision in accordance with 30 C.F.R. � 75.223
was approved by MSHA on November 27, 1991. The violation of 30
C.F.R. � 75.223(a) as alleged in Citation No. 3412738 was not
established.
XII
Without the benefit of hindsight, the preponderance of the
evidence presented failed to establish that the actions taken by
Utah Fuel were not reasonable actions that a "reasonably prudent
person, familiar with the mining industry and protective purpose
of the standard, would have taken and provided in order to meet
the protection intended by each of the three cited safety stan-
dards. Reviewed under the "reasonable prudent person standard I
find Utah Fuel acted as a reasonable prudent mine operator in
recognizing and addressing the potential hazards. The actions
taken by Utah Fuel are what a "reasonably prudent person, fami-
liar with the mining industry and protective purpose of the
standard, would have provided in order to meet the protection
intended by the cited standards. See Canon Coal, 9 FMSHRC 667 at
668 (1987). Each of the citations should be vacated.
ORDER
Citation Nos. 3850249, 3412737 and 3412738 and their corres-
ponding proposed penalties are VACATED and this case is
DISMISSED.
August F. Cetti
Administrative Law Judge
Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Michael L. Larsen, Esq., Elisabeth R. Blattner, Esq., PARSONS, BEHLE &
LATIMER, One Utah Center, 201 South Main Street, Suite 1800,
P.O. Box 45898, Salt Lake City, UT 84145-0898 (Certified Mail)
/sh
TAMBRA LEONARD ESQ OFFICE OF THE SOLICITOR U S DEPARTMENT OF LABOR
1999 BROADWAY #1600 DENVER CO 80202-5716
MICHAEL L LARSEN ESQ ELISABETH R BLATTNER ESQ PARSONS BEHLE & LATIMER
ONE UTAH CENTER 201 SOUTH MAIN ST #1800 P O BOX 45898
SALT LAKE CITY UT 84145-0898