.
BOWIE RESOURCES LIMITED
February 18, 2000
WEST 99-120-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
February 18, 2000
BOWIE RESOURCES LIMITED, : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 99-120-R
: Citation No. 7018205;
: 1/27/99
v. :
:
SECRETARY OF LABOR, : Bowie No. 2 Mine
MINE SAFETY AND HEALTH : Id. No. 05-04591
ADMINISTRATION (MSHA), :
Respondent :
DECISION
Appearances: R. Henry Moore, Buchanan Ingersoll P.C.,
Pittsburgh, Pennsylvania, for Contestant;
Mark W. Nelson, Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for
Respondent.
Before: Judge Manning
This case is before me on a notice of contest filed by
Bowie Resources Limited ("Bowie") against the Secretary of
Labor pursuant to sections 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 815(d)(the "Mine Act").
Bowie[1] contested a citation issued on January 27, 1999, at
the Bowie No. 2 Mine alleging a violation of the Secretary's
safety standard at 30 C.F.R. � 75.202(a). A hearing was held
in Delta, Colorado. The parties presented testimony and
documentary evidence and filed post-hearing briefs.
I. BACKGROUND
The Bowie No. 2 Mine is an underground coal mine in Delta
County, Colorado. On December 14, 1998, two miners were killed
when a portion of the mine roof fell as they were mining a
pillar. The miners were conducting retreat mining in a
conventional mining section when the roof above the pillar they
were mining fell. The men were under supported roof at the time
of the accident.
At the conclusion of MSHA's investigation, the Secretary
issued one citation under section 104(d)(1) of the Mine Act
alleging a violation of section 30 C.F.R. � 75.202(a). The
condition or practice section of the citation alleges a
violation as follows:
The mine roof was not adequately supported to
protect persons from hazards related to falls
of roof in the Number 22 coal pillar and
intersection of the 002-0 MMU, an active
working section where persons worked and
traveled. On the evening of December 14,
1998, retreat mining was in progress on the
No. 22 Coal Pillar. Statements obtained
during the accident investigation revealed
that ground conditions had been deteriorating
over a period of two separate working shifts.
During this period, unusual amounts of
heaving in the mine floor had been observed,
some timbers had dislodged or broken and been
reset, however no additional support was
added. At least once during each of the last
two shifts prior to the accident, the
continuous mining machine and crew had
retreated for safety to an outby location.
Despite these conditions being present,
mining was resumed without installing
additional or supplemental support. The
section foreman was present during earlier
mining activity, however had left the area
immediately prior to the accident. As the
final cut was taken from the coal pillar, the
mine roof fell, extending from the Number 22
pillar continuing into the outby
intersection, crushing the remainder of the
coal pillar, covering the continuous mining
machine, and fatally injuring both the
machine's operator and his helper. This
violation was determined to be a contributing
factor to the occurrence of the fatal
accident.
MSHA determined that the violation was serious, was of a
significant and substantial nature ("S&S"), and was a result
of Bowie's unwarrantable failure to comply with the safety
standard. The safety standard provides, in pertinent part, that
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 roof, face or ribs ...."
It is important to understand that the Secretary is not
contending that Bowie failed to follow its MSHA-approved roof-
control plan. Rather, she is arguing that unusual conditions
were present in and around Pillar 22 on the day of the accident
and during the previous shifts. These conditions should have put
Bowie on notice that additional measures were needed to support
or control the roof. The Secretary contends that Bowie continued
to mine the pillar in its normal fashion despite these warning
signs. She maintains that Bowie's failure to take additional
steps to support the roof created a serious hazard of a roof fall
in the area and contributed to the death of two miners. The
Secretary argues that Bowie's conduct constitutes a serious
violation of section 202(a) and that Bowie was highly negligent
in failing to adequately support or control the roof.
Bowie argues that the information available to its
experienced personnel did not indicate that additional support
was necessary. Bowie states that it was following its approved
roof-control plan and that its supervisors had carefully
instructed the crew on how to safely mine the pillar at the start
of the shift. It contends that the Secretary improperly relies
on hindsight to establish her case. It argues that the
conditions that existed in the area on the evening of December
14, 1998, did not indicate that additional support was necessary.
Bowie maintains that the roof fell because of the presence of an
undetectable anomaly in the roof near the corner of Pillar 22.
Bowie maintains that it did not know about this anomaly because
it was virtually undetectable.
II. DISCUSSION WITH FINDINGS OF FACT
The Bowie No. 2 Mine is a relatively new mine that was still
being developed at the time of the accident. A longwall section
was being developed, but the accident occurred in the First East
Submains where continuous mining machines were being used to
extract the coal. The submains had already been advanced and
retreat mining was taking place. Bowie's roof-control plan
included provisions for partial pillar recovery. (Ex. G-18 pp.
23-24). The plan for partial pillar recovery was approved by
MSHA on November 19, 1998. Under the plan, Bowie could make five
cuts into each pillar in a preestablished order and was required
to leave several stumps. The plan also set forth the sequence
for installing timbers as supplemental support. The roadways[2]
in this section were about 8 feet high and 18 feet wide. The
pillars were on 85-90 foot centers. The basic plan is
illustrated in Exhibits G-3A and B-14. A portion of Exhibit
B-14 is attached to this decision as Illustration No. 1.
Bowie pulled Pillars 1-20 between November 20 and December
5, 1998. This was the first time that pillar mining was
conducted at the Bowie No. 2 Mine. Additional rooms were
developed between December 6 and 12, 1998. On December 13, 1998,
Bowie resumed pillar extraction on Pillar 21. Thus, between
December 6 and December 12, 1998, no retreat mining occurred in
the area. The most inby row of pillars left standing during that
period, Pillars 21 - 25, is referred to as the "standing row."
Since this pillar row was immediately adjacent to the gob for
that seven-day period, Bowie anticipated that roof and rib
conditions could make mining more difficult.
A number of conditions were present along the standing row
on December 13, 1998. First, a substantial amount of floor
heaving occurred in the area. Such heaving produced a
significant amount of loose coal in the roadways between the
pillars along the standing row. Second, cutters developed at a
number of locations along the standing row. "Cutters" are cracks
along the roof immediately adjacent to a pillar. Third, some of
the ribs developed sloughage problems along the standing row.
Sloughage is fairly common at the mine because of the way the
coal cleaves. All of these conditions developed, at least in
part, as a result of the pressure from the roof. This area is
under about 750 feet of overburden. The roof is relatively
strong at the mine and the pressure was at least partially
relieved by the floor heaving.
Bowie took a number of steps to ensure roof stability
before it resumed retreat mining on December 13. First, it
cleaned up the loose coal produced by the floor heave. Bowie
believed that the presence of floor heave indicated that much
of the pressure that built up in the standing row had been
relieved. It indicated to them that the roof was strong and
solid. The pressure pushed the pillars down and the floor up.
Some support timbers were cracked. Bowie replaced these
timbers. Bowie also bolted the cutters with eight-foot roof
bolts. Bowie uses six-foot roof bolts in the roadways, but
it uses eight-foot bolts to support cutters.
Prior to the beginning of his shift on December 14, 1998,
Keith McFarland, the section foreman, talked with D. Richard
Kendall, the supervisor on the previous production shift. Mr.
Kendall told Mr. McFarland that his crew had a tough time mining
Pillar 21. Kendall said that cap rock fell while his crew was
mining the pillar. Cap rock is a hard layer of rock, usually
sandstone, just above the coal seam. See A Dictionary of Mining,
Mineral, and Related Terms 2nd ed, 83 (1997). The cap rock fell
in the unsupported area being mined.
McFarland's shift began at about 4:30 p.m. on December 14.
At the beginning of the shift, McFarland conducted a safety talk.
He reviewed an MSHA safety bulletin entitled "Best Practices -
Retreat Mining." (Ex. G-20). It deals specifically with safe
practices to follow when removing pillars. Rocky Gallob was late
arriving to work that day and was not present during this safety
training.
The crew followed Bowie's normal procedures when mining
Pillar 22. The cuts were made in sequence and all of the timber
supports were installed at the appropriate time. As the crew
made each cut, the continuous miner operator frequently backed
the continuous miner out to wait and watch the roof. Sometimes
he backed out because it looked like cap rock was going to fall.
At other times, he backed out to observe and listen to the roof.
The continuous miner was operated by remote control, so the crew
was under supported roof at all times and could observe the roof
from the outby roadways adjacent to the pillar and from the
outby intersection. The Secretary agrees that backing out the
continuous miner to observe the roof is "a common practice in
retreat mining." (Tr. 78).
Mr. McFarland was present during much of the shift, but he
was absent from the immediate area some of the time. After the
fourth cut was made, McFarland consulted with the continuous
miner operator and his helper and he determined that it was safe
to take the fifth (final) cut. Because it was near the end of
the shift, many people were in the area to watch the roof. As
the fifth cut was started, Mr. McFarland, Barry Schreckengost,
Richard Ungaro, Rocky Gallop, and Hector Camacho were near the
outby intersection between Pillars 22 and 23. Denis Linman was
near the outby intersection between Pillars 21 and 22. Before
the cut was made, Mr. Ungaro walked around Pillar 27 to stand
near Mr. Linman. Messrs. McFarland and Schreckengost left the
area just before the roof fell. Mr. Schreckengost was the shift
foreman.
A massive roof fall occurred as the fifth cut was being made
shortly after Mr. McFarland left the area. The roof fell from
the unsupported area of Pillar 22 out into the outby intersection
between Pillars 22 and 23. The diagram of the roof fall included
in MSHA's accident investigation report, Exhibit G-1, is attached
to this decision as Illustration No. 2. The fall came with some
warning. Mr. Linman heard timber break and saw roof material
fall. Mr. Linman waived his cap light and blew his whistle,
which are warnings to immediately vacate an area. Mr. Ungaro ran
around Pillar 27 to provide assistance. Unfortunately, the
continuous miner operator, Rocky Gallob and his helper, Hector
Camacho, did not escape in time. They were in the outby
intersection between Pillars 22 and 23 when the roof fell. It
appears that the roof fall started in the corner of the
unsupported area in Pillar 22 and spread into the supported roof
of the outby intersection adjacent to Pillars 22 and 23. The
roof separated above the six-foot roof bolts that were installed
in the intersection. The outby stump of Pillar 22 was crushed.
The Secretary believes that if Gallob and Camacho had an
additional second or two to escape, they would not have been
under the roof fall. For reasons that are not entirely clear,
Messrs. Gallob and Camacho did not immediately leave the area but
apparently tried to back the continuous miner into the
intersection before attempting to retreat outby.
A. Factors Relied Upon by the Secretary to Establish a
Violation
The Secretary argues that Bowie knew or should have known
that the roof was deteriorating, thereby risking a potential roof
fall. Consequently, Bowie should have provided supplemental
support to protect persons working in the area. She relies on a
number of conditions that developed in the area and she described
the steps that Bowie should have taken to control the roof. She
states that these measures may not have been sufficient to
prevent the roof from falling, but that they might have given
Messrs. Gallob and Camacho more time to escape.
1. Conditions that Developed along the Standing Row
The Secretary relies on a number of physical factors that
occurred along the standing row to support her position. The
Secretary believes that one of the most significant events that
indicated that the roof was deteriorating was the fact that the
floor was heaving in the roadways. There is no dispute that
there was a significant amount of heaving in several areas
immediately adjacent to the standing row. The heaving occurred
between Pillars 22 and 23, 23 and 24, and 24 and 25. Some of the
loose coal that was observed in the roadway between Pillars 22
and 23 was material that had been pushed up with a scoop from
outby roadways rather than coal that had heaved up in the area.
Nevertheless, the heaving was greater than had ever been
experienced during pillar mining at the Bowie No. 2 Mine. It
must be kept in mind, however, that Bowie had been pillar mining
at Bowie No. 2 for only two weeks. Significant heaving also
occurred at the adjacent Bowie No. 1 Mine and in other areas of
the Bowie No. 2 Mine.
The Secretary maintains that another significant event was
the development of cutters along the standing row. There is no
dispute that cutters were present along Pillars 22, 23, 24, and
25.[3] She contends that, as with the floor heave, the presence
of cutters indicated that the roof was deteriorating and that
additional support was required in the roadways. The Secretary
acknowledges that Bowie installed eight-foot roof bolts at the
cutters before mining was commenced, but argues that the presence
of the cutters should have alerted management that additional
measures were required.
The Secretary also points to the fact that there was a
significant amount of rib sloughage in the vicinity of the
standing row. The Secretary maintains that this fact also shows
that the pillars were taking weight and that the roof could be
unstable. She characterizes the amount of sloughage as abnormal.
Bowie does not dispute that there was more rib sloughage along
the standing row than was typical at the mine.
The Secretary contends that the presence of floor heave,
cutters, and rib sloughage evidenced increased stress created by
the weight of the roof bearing down on the pillars and floor.
She argues that these warning signs should have alerted Bowie to
the danger and that Bowie should have added additional support or
mined only the first four cuts. Bowie contends that it cleaned
up the rib sloughage and floor heave, and also repaired the
cutters. It also maintains that it believed that these factors
showed that the stress on the roof had been relieved, reducing
the danger of a fall of roof. It also points to the fact that
the standing row was stable at the time Pillar 22 was mined. The
floor heaving had stopped; it did not appear that the ribs were
continuing to slough; and the condition of the cutters had not
changed. It states that there is no evidence that additional
cutters were forming.
Finally, the Secretary contends that Bowie failed to take
into account the fact that an old abandoned coal mine, the King
Mine, is approximately 260 feet below the Bowie No. 2 Mine. Maps
show that pillar remnants were located below Pillar 22. She
contends that Greg Hunt, Bowie's geology consultant, advised
Bowie that it could experience difficult conditions in areas
above such remnant pillars. Bowie argues that Mr. Hunt merely
stated such conditions were a "possibility" and that his concerns
related to the longwall section. It also noted that pillar
remnants were also present under many of the 20 pillars
originally mined and no roof-control problems were encountered
there. The roof fall in this case was the first reportable roof
fall that occurred at the Bowie No. 2 Mine.
2. Conditions During the Previous Production Shift
The Secretary also contends that the crew on the previous
production shift had a difficult time mining Pillar 21 and the
adjacent barrier. She argues that the problems that developed on
that shift should have alerted Bowie that additional roof support
was required beyond that set forth in the roof-control plan. The
barrier and Pillar 21 were the first areas mined in the standing
row. In addition to the floor heave, rib sloughage, and cutters
that were present, the Secretary points to evidence that Pillar
21 was difficult to mine. She relies upon Mr. Kendall's
statement to MSHA that cap rock fell as Pillar 21 was mined and
that it took longer to mine the pillar than is typically the
case.
Bowie contends that although it anticipated that conditions
along the standing row would pose some roof and rib-control
problems, it took those conditions into account. Christopher
Barker operated the continuous mining machine during the previous
production shift. He testified that he had to back out his
machine two or three times to watch the roof because of the
presence of cap rock. He testified that backing out was not
unusual in retreat mining and that mining Pillar 21 was no more
difficult than normal. (Tr. 636, 641).
3. Conditions Encountered while Mining Pillar 22
As stated above, Mr. Kendall warned Mr. McFarland that there
had been a lot of cap rock in Pillar 21. The Secretary maintains
that Mr. McFarland demonstrated his knowledge of the poor roof
conditions when he provided safety training to his crew at the
start of the shift. In his statement to MSHA following the
accident, McFarland said that he told his crew to " keep an eye
out" for bad conditions and that he instructed them to install
additional breaker posts at any indication of bad roof; watch the
mine floor for evidence of heaving; and not to mine the final cut
if conditions did not look safe. The Secretary argues that this
instruction evidences McFarland's knowledge that additional roof
control measures were necessary in the standing row.
The crew began mining Pillar 22 at about 6 p.m. The crew
cleaned up loose coal in the roadway between Pillars 22 and 23,
and reset timbers in the turn row for the first cut. These were
the only timbers that had to be reset at Pillar 22. The first
cut was then made. The continuous miner was backed out twice to
observe cap rock in the roof. After some cap rock fell, the crew
watched the roof to see if it was stable. Before starting the
second cut, the crew installed four turn row timbers across the
roadway as required by the roof-control plan. The crew pulled
the mining machine back at least twice while making this cut.
Once the second cut was completed, four danger row timbers were
installed across the mouth of the roadway between Pillars 22 and
23. That roadway would no longer be used during retreat mining.
As the crew began making the third cut into the pillar,
the continuous miner was pulled back due to cap rock. Upon
completion of the fourth cut, four turn row timbers were
installed across the roadway between Pillars 22 and 27. The
fourth cut was then made. Sometime after the crew started making
the fifth cut, Mr. Gallob pulled the continuous miner back to
watch and listen to the roof. Apparently, he did this because
the crew saw some cap rock fall in the area mined during the
first cut. At that time Mr. McFarland, Mr. Schreckengost, Mr.
Camacho, and Mr. Gallob were in the outby intersection. After
examining the roof, Messrs. McFarland and Schreckengost
determined that it was safe to continue mining the fifth cut.
Soon after both supervisors left the area, the roof above the
pillar collapsed.
The Secretary believes that the conditions that unfolded as
the pillar was mined gave notice to Bowie that additional roof
support was necessary or that the fifth cut should not be
completed. She states that Messrs. Schreckengost and McFarland
"effectively abandoned the crew during the most critical and
potentially most dangerous sequence of mining...." (S. Br. 13).
She contends that after the continuous miner was pulled back
during the fifth cut, Bowie management should have instructed the
crew to add more timber[4] or ordered them to withdraw from the
pillar.
Bowie maintains that roof conditions looked stable when the
crew resumed mining the fifth cut. The timbers and the caps
above the timbers were not deforming. The roof bolts in the
intersection looked secure and the roof-bolt plates were not
deformed from roof pressure. The floor was not heaving and the
pillar stump was not being crushed. Bowie contends that there
was no indication that supplemental roof support was necessary or
that the fifth cut should not be made. It contends that the
evidence shows that the fall of roof occurred because of an
anomaly in the roof that was not detected during the installation
of the bolts to control the cutter. It points to the testimony
of Mr. McFarland that an examination of the roof after the fall
revealed that there was no separation in the rock structure where
the roof fell. (Tr. 762-63). Thus, it maintains that a miner
drilling roof bolts or test holes would not have detected the
condition.[5]
B. Alleged Violation of Section 75.202(a)
The Secretary's roof-control standard at 30 C.F.R.
� 75.202(a) is broadly worded. Consequently, the Commission
held 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." Canon Coal Co., 9 FMSHRC 667, 668 (April 1987)
(cited in Harlan Cumberland Coal Co. 20 FMSHRC 1275, 1277
(December 1998).
Although my resolution of the issues raised in this case has
some bearing on the cause of the fatal accident, the purpose of
this proceeding is not to determine the cause of the accident or
the steps that could have been taken to prevent it. Some of the
evidence presented in this case has little to do with roof
control. For example, the Secretary's position that management
"effectively abandoned the crew" when the fifth cut was made has
little to do with the issue in this case. I have not considered
these peripheral issues in my analysis.
I find that the Secretary did not establish a violation of
section 75.202(a). The factors relied upon by the Secretary to
establish the violation are not sufficient to show that a
reasonably prudent person would have provided additional support.
I reach this conclusion for a number of reasons, as discussed
below.
First, I agree with the Secretary that the conditions that
developed along the standing row should have raised concerns
about the safety of retreat mining in that area. Nevertheless, I
find that Bowie addressed those concerns and continually
monitored the conditions to make sure that the roof and ribs were
not deteriorating. It cleaned up the coal that heaved up into
the roadways and it continued to monitor the roadways for
additional heaving. Bowie reasonably believed that the floor
heaving demonstrated that the roof was strong and that the
pressure on the roof had been reduced as a result of the heaving.
The cutters along the pillars were bolted. There is no evidence
that these cutters were expanding or that additional cutters
developed. Rib sloughage was rather common at the mine due to
the cleavage of the coal. Rib sloughage occurred in other areas
of the mine without creating a hazardous condition. I find that
these factors did not indicate that the roof around Pillar 22 was
deteriorating. Bowie management was concerned about these
conditions but it reasonably believed that it had addressed them
and that it was safe to mine the standing row using the roof
support contained in the approved roof-control plan. Bowie did
install additional roof support in other areas of the mine when
conditions warranted, but it did not believe that supplemental
support was necessary to protect persons at Pillar 22 .
The Secretary's evidence on the effect of the underlying
King Mine is not convincing. Although it is true that the maps
show that a pillar remnant may have been under Pillar 22, it is
just as likely that this remnant had given way. Moreover, many
of the pillars that were previously mined were on top of similar
pillar remnants. Thus, it is highly speculative that the
abandoned mine had any effect on the stability of the roof in
the Bowie No. 2. It was reasonable for Bowie to continue
following the approved roof-control plan without adding
supplemental support due to the presence of the King Mine.
The Secretary's arguments concerning the events that
occurred during the previous production shift also do not
indicate that additional roof support was necessary. Cap rock
was present when mining Pillar 21, but otherwise the roof
appeared to be stable. There was no evidence of deterioration
in the pillar or the roof. Mr. Barker, one of the miners who
operated the continuous miner during that shift, testified that
Pillar 21 was not particularly difficult to mine. (Tr. 636). He
also stated that he pulled the mining machine back two or three
times, which was not an abnormal amount. Id. He said that it is
up to the crew to determine when to pull out. The crew will
often pull out when anyone sees or hears something that makes him
uncomfortable, such as timber taking weight. (Tr. 639-41). The
miner operator and his helper constantly watch the roof and the
roof-support system to make sure that it is safe to continue
mining the pillar. Id.
With respect to the events that occurred on the evening of
December 14, the Secretary relies heavily on the statements of
miners given to MSHA's investigators rather than on testimony
produced at the hearing. Indeed, she relies on these interviews
to establish her entire case. (Exs. G-4 through G-14). The
Secretary did not use these interview statements to supplement
the testimony of eyewitnesses. In fact, she did not call as
witnesses any miners who observed the conditions along the
standing row or any miners who were present on the evening of
December 14. There was no showing that these miners were
unavailable to testify. As justification for this approach,
counsel for the Secretary argued that the events on the night of
December 14, 1998, were still fresh in the minds of these
individuals at the time of the interviews so that the interview
transcripts were more reliable than live testimony. I admitted
the interview transcripts over the objection of Bowie. (Tr. 260-
61).
Although I agree with the Secretary that the interviews
were conducted when the events were still fresh in everyone's
minds, the interviews suffer from other infirmities. There was no
opportunity for cross-examination. In a number of instances, the
question asked by the MSHA investigator and the answer given by
the miner are ambiguous. Bowie was not afforded the opportunity
to clarify the facts. For example, the Secretary cited the
interview transcript of Mr. Linman to argue that three or four
support timbers broke while Pillar 22 was mined and that one of
the stumps for this pillar crumbled as mining progressed, with
the result that the roof was not adequately supported. ( S. Br.
8 citing Ex. G-8 pp. 46-49). As Bowie points out it its reply
brief, this portion of Mr. Linman's interview is ambiguous. It
appears that Mr. Linman was referring to timbers in the gob that
usually give way as pillars are mined. It also appears that
Linman was referring to Pillar 21 when he stated that the pillar
was crumbling. There was no opportunity to clarify this
testimony.
In addition, many of the questions asked by the MSHA
investigator relate to how such accidents could be avoided in the
future. For example, Mr. Schreckengost was asked "looking back
on what you've seen and what you know about this accident, what
additional support ... would you have installed to prevent this
accident ...." (Ex. G-7, p. 46). Mr. Schreckengost answered
that double breaker rows could have been added. The Secretary
cites this answer for the proposition that Mr. Schreckengost
realized that additional roof support should have been added.
(S. Br. 12). This argument ignores the fact that the question
was directed at future protection. What I must examine in this
case is the adequacy of the roof support measured against what a
reasonably prudent person would have provided to meet the
protection intended by the standard. I must look at the
conditions that were present as Pillar 22 was being mined without
taking into consideration the fact that the roof fell. MSHA
interviews miners during accident investigations for a wide range
of reasons. In pursuing the Secretary's mission of reducing the
number of fatal accidents, MSHA must know what can be done to
prevent similar accidents. Thus, the questions asked often do
not lend themselves to resolving issues raised in enforcement
actions.
It appears that the Secretary's approach in this case was
to establish that, because it conducted a competent investigation
of the accident, the citation should be affirmed. Most of the
first day of the hearing consisted of testimony of the MSHA
investigators describing, in detail, how they conducted their
investigation. (Tr. 39-263). These witnesses described the
information that they relied upon in reaching their conclusions.
Much of the Secretary's evidence on the second day of the hearing
consisted of testimony of other MSHA officials concurring in
these conclusions. (Tr. 318-396). As stated above, the
Secretary did not call any miners who were eye witnesses to the
events on December 13-14, 1998. The Secretary has the burden of
proof in this de novo proceeding. The Secretary does not meet
her burden by establishing that MSHA's investigation was thorough
and competent. Commission administrative law judges do not
affirm or vacate citations based on an evaluation of the adequacy
of MSHA's investigation. If the Secretary believes that a
violation occurred, she must present evidence to establish that
fact to the trier of fact. She may seek to use interview
transcripts as part of her proof but, given the nature of such
interviews, she runs the risk that such evidence will fall short
of establishing a violation.
The interviews presented by the Secretary are evidence in
this case and I have considered them in rendering my opinion.
Nevertheless, I principally rely on the live testimony presented
at the hearing. The testimony at the hearing was specifically
directed to the issues in this case; there was an opportunity for
cross-examination; and I was able to observe the witnesses.
I find that Mr. McFarland advised the crew at the start of
the shift that cap rock had fallen on the previous production
shift. He also reviewed with the crew MSHA's safety instructions
setting forth precautions to be followed when mining pillars. He
instructed the crew to install additional timber if it appeared
that the roof was weakening. He told them to watch for evidence
of floor heaving. He also told them not to mine the final cut if
it could not be done safely.
The evidence establishes that the crew had to pull back the
continuous miner a number of times as it mined the pillar. The
crew was instructed to pull back the miner whenever they believed
that they needed to closely watch the roof. This procedure was
in place for safety reasons, but also to protect the continuous
mining machine from being damaged by falling cap rock. Although
it was a common practice at the mine to pull back the miner when
recovering pillars, the crew pulled back more frequently than is
typically the case.
The crew was instructed to constantly examine the roof for
any indications of instability as mining occurred and between
cuts. I credit the testimony of Messrs. McFarland and
Schreckengost that the roof appeared stable on the evening of
December 14. The roof and roof- bolt plates were not deformed;
the timber supports were not showing signs of unusual pressure;
and there were no signs of deterioration in the roof. (Tr. 622,
694-95, 698, 715, 752-53, 754).
The fact that cap rock was falling within the mined portion
of the pillar does not indicate that the roof was deteriorating.
Mr. Ungaro, the roof bolter on the crew, testified that "you want
the cap rock to fall" and you expect the roof to cave where you
have mined the coal. (Tr. 632-33). Mr. Ungaro also testified
that although the crew expected a "cave" to develop in
unsupported areas, "we never expected the intersection" to cave
in. (Tr. 633).
I find that the Secretary did not establish that a
reasonably prudent person, familiar with the mining industry and
the protective purposes of section 202(a), would have provided
additional roof support at Pillar 22 or would have stopped mining
Pillar 22 in the face of the conditions that existed on the
evening of December 14, 1998. In reaching this conclusion, I
have considered all of the factors submitted at the hearing,
including the conditions that developed along the standing row,
the events during the previous production shift, and the events
on the evening of December 14. It is not clear why the roof
fell. The roof fell in the outby corner of the pillar and out
into the supported outby intersection. There is no dispute that
there was a sandstone formation above the fall.
The Secretary's expert witness, Joseph Zelanko, testified
that he reached his conclusion that the roof was not adequately
supported, based in large measure on the statements made by
miners during the MSHA investigation that the conditions in the
standing row were "not common." (Tr. 424). He was referring to
floor heave, cutters, and rib sloughage. Mr. Zelanko testified
that these conditions indicated that the roof was under high
stress. He attributed this high stress to the fact that, as the
pillar rows were mined, the overburden was getting progressively
deeper. (Tr. 425; Ex. G-34 p. 5). He also attributes the high
stress to the fact that, as retreat mining progressed, the area
of the gob increased. He believes that this section of the mine
was not getting a good cave in the gob and this fact greatly
increased the stress on the roof in the standing row. (Tr. 427).
Finally, he also concluded that the underlying King Mine may have
increased the instability in the roof.
John Stankus, Bowie's expert witness, testified that the
floor heave reduced the stress in the roof above the standing
row. (Tr. 544). He believes that there was a reduced potential
for a roof fall in the area because of the heaving. (Tr. 554).
He testifies that the effect of the King Mine and the overburden
on the stability of the roof was insignificant. Dr. Stankus
concluded that the roof fell because of a "geologic anomaly in
the roof over pillar 22" that was difficult or impossible to
detect. (Tr. 564-65).
Because the roof fell, it is quite obvious that more should
have been done to support the roof around Pillar 22 or the final
cut should have not been made. Both experts were highly
qualified and they presented competing theories about the cause
of the accident. MSHA's investigation brought forth information
that it believes contributed to the roof fall. As stated above,
however, on the evening of December 14, Bowie management
reasonably believed that the roof was adequately supported.
Messrs. McFarland and Schreckengost reasonably believed that any
abnormal stress on the roof had been released when the floor
heaved and that it was safe to make the final cut in Pillar 22.
Their belief was confirmed by the relatively stable conditions
they observed that evening.
III. ORDER
For the reasons set forth above, the notice of contest in
this case is GRANTED and Citation No. 7018205 issued on January
27, 1999, is VACATED.
Richard W. Manning
Administrative Law Judge
**FOOTNOTES**
[1] The name "Bowie" is pronounced *baue so it rhymes with
"Howie."
[2] I use the term "roadways" to refer to entries and
crosscuts.
[3] Bowie maintains that these "cutters" were cracks
rather than true cutters in the sense that a mining engineer
would use that term. As stated above, I find that a cutter is a
crack along the roof immediately adjacent to a pillar. I reject
Bowie's argument.
[4] The Secretary contends that, if Bowie had used one
roadway rather than two for access by the ram cars that off-
loaded the coal, there would have been more room to add
supplemental timber support. Bowie used two roadways for cuts 3
through 5.
[5] The Secretary also argues that Bowie should have
drilled additional test holes in the area to obtain more
information about the condition of the roof.
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th
Floor, Pittsburgh, PA 15219-1410 (Certified Mail)
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
RWM