The Doe Run Company v. Secretary of Labor and Secretary of Labor v. The Doe Run Company

Read the official release (fmshrc.gov)

Plain-English summary

After a roof fall at Doe Run's underground lead and zinc mine crushed a mechanical scaler and killed its operator, MSHA issued two ground-control citations and a training citation. Judge John Kent Lewis held that the fatal accident itself established strict-liability violations of the scaling-location and ground-support standards. He found both violations non-S&S and reduced negligence to low because the record did not show warning signs that made another injurious roof fall reasonably likely. The judge assessed $3,100 and $10,300 for those violations and vacated the training-record citation because the Secretary's last-minute amendment from section 48.7 to section 48.9 prejudiced Doe Run. The total penalty was $13,400. On review, the Commission later reversed the judge and vacated both remaining ground-control citations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.3201, 57.3360, 48.7(a), and 48.9
• Outcome: Two ground-control citations were affirmed as non-S&S with low negligence, the training-record citation was vacated, and $13,400 was assessed.
• Subsequent review: The Commission later reversed and vacated both remaining ground-control citations in cent-2015-0318-rm-commission.
• Key point: The judge treated the fatal roof fall as proving the ground-control violations under strict liability, but required separate proof of a reasonably likely hazard before designating them S&S.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

THE DOE RUN
COMPANY,

Contestant,

v.

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH

ADMINISTRATION
(MSHA),

Respondent.

SECRETARY OF
LABOR,

CONTEST
PROCEEDINGS

Docket
No. CENT 2015-318-RM

Citation
No. 8680899; 03/11/2015

Docket
No. CENT 2015-319-RM

Citation
No. 8680900; 03/11/2015

Mine ID
23-00409

Fletcher
Mine and Mill

CIVIL
PENALTY PROCEEDINGS

MINE SAFETY
AND HEALTH

ADMINISTRATION
(MSHA),

Docket
No. CENT 2015-441-M

Petitioner,

A.C.
No. 23-00409-379896

v.

Docket No.
CENT 2016-55-M

A.C. No.
23-00409-392975

THE DOE RUN
COMPANY,

Respondent.

Mine:
Fletcher Mine and Mill

DECISION

Appearances:     
         Susan J. Willer, Esq., Office of the Solicitor, U.S. Department of
Labor, Kansas City, Missouri, for the Secretary of Labor

Ryan Seelke,
Esq., for The Doe Run Co., Respondent

Before:           
Judge Lewis

STATEMENT OF THE
CASE

These
cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§801 et seq. (the “Act” or “Mine Act”). A hearing was held in St. Louis,
Missouri, where the parties presented testimony and documentary evidence. After
the hearing, the parties submitted post-hearing briefs and reply briefs, which
have been fully considered.

FINDINGS
OF FACT AND CONCLUSION OF LAW

The
findings of fact are based on the record as a whole and the undersigned’s
careful observation of the witnesses during their testimony. In resolving any
conflicts in the testimony, the undersigned has taken into consideration the
interests of the witnesses, or lack thereof, and consistencies, or
inconsistencies, in each witness’s testimony and between the testimonies of the
witnesses. In evaluating the testimony of each witness, the undersigned has
also relied on his demeanor. Any failure to provide detail as to each witness’s
testimony is not to be deemed a failure on the undersigned’s part to have fully
considered it. The fact that some evidence is not discussed does not indicate
that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence
and failure to cite specific evidence does not mean it was not considered).

JOINT STIPULATIONS

1. The Doe Run
   Company produces lead -zinc ore from its underground mine operations, and these
   mining operations affect interstate commerce.

2. The Doe Run
   Company is subject to the jurisdiction of the Federal Mine Safety and Health
   Act of 1977, as amended (the Act).

3. The
   Administrative Law Judge has jurisdiction over the disputes in these
   consolidated matters.

4. The Doe Run
   Company is, and has been at all relevant times to the inspection, the owner and
   operator of the Fletcher Mine/Mill, Mine ID No. 23-00409, located in Reynolds
   County, MO.

5. The Fletcher
   Mine is a mine as that term is defined by the Act.

6. The MSHA
   Assessed Violations History accurately reflects the history of Doe Run’s
   Fletcher Mine/Mill for fifteen months prior to the date of the contested
   Citations.

CENT 2016-0055-M

7. On January 21,
   2015, a fatal accident occurred at the Fletcher Mine when falling material from
   the roof struck a Getman Mechanical Scaler operating in Section RC3PO Northeast
   Working Area of the mine.

8. At the time of
   the accident, the operator of the Getman Mechanical Scaler was inside a closed
   protective structure which was positioned underneath a section of mine roof
   that was supported by six foot long 1 ½ inch diameter friction stabilizer roof
   bolts.

9. During the date
   of the accident, Mine Safety and Health Administration (“MSHA”) Inspector
   Jeremy Kennedy was at the Fletcher Mine conducting a quarterly E01 inspection.

10. During the day
    shift on January 21, 2015, Inspector Kennedy traveled to and inspected the
    RC3PO Northeast Working Area.

11. During his
    January 21, 2015, inspection, Inspector Kennedy observed the roof that would
    later fall.

12. At the time of
    the roof fall, approximately 25% of the roof fall cavity was supported with six
    foot long 1 ½ inch diameter friction stabilizer-type roof supports.

13. The Mine Safety
    and Health Administration (“MSHA”) inspected The Doe Run Company's Fletcher
    Mine /Mill following the accident.

14. MSHA Inspector
    Jeremy Kennedy was acting in his official capacity as an authorized
    representative of the Secretary when he inspected said mine.

15. MSHA Inspector
    Michael R. Van Dorn was acting in his official capacity as an authorized
    representative of the Secretary when he inspected said mine.

16. MSHA issued a
    Section 104(a) Citation, No. 8680899, to The Doe Run Company on March 11, 2015,
    alleging a violation of 30 C.F.R. § 57. 3201.

17. Citation No.
    8680899 has been terminated, as the affected area has been abandoned and fenced
    off

18. MSHA also issued
    a Section 104(a) Citation, No. 8680900, to The Doe Run Company on March 11, 2015,
    alleging a violation of 30 C.F.R. § 57. 3360. [1]

19. Citation No.
    8680900 has been terminated, as the affected area has been abandoned and fenced
    off

20. The subject
    Citations were properly served by a duly authorized representative of the
    Secretary upon Contestant's agent on the date and place stated in the
    Citations.

21. The Citations
    may be admitted into evidence for the purposes of establishing their issuance
    and not for the truthfulness or relevancy of any statements asserted therein.

CENT 2015-441-M

22. The Mine Safety
    and Health Administration (“MSHA”) inspected The Doe Run Company's Fletcher
    Mine /Mill after the occurrence of a fatal accident on January 21, 2015.

23. MSHA issued a
    Section 104(a) Citation, No. 8680902 to The Doe Run Company on March 12, 2015,
    alleging a violation of 30 C.F.R. § 48.7(a).

24. The subject
    Citation was properly served by a duly authorized representative of the
    Secretary upon Contestant's agent on the date and place stated in the Citation.

25. The Citation may
    be admitted into evidence for the purposes of establishing its issuance and not
    for the truthfulness or relevancy of any statements asserted therein.

26. The proposed
    penalties in these proceedings will not affect Respondent's ability to continue
    in business.

27. The
    exhibits offered by Contestant and Respondent are stipulated to be authentic,
    but no stipulation is made as to their relevance or the truth of the matters
    asserted therein. The parties stipulate that the exhibits may be admitted into
    evidence. Except R, S & T and 4, 5 and 6. [2]

JX-1

SUMMARY OF
TESTIMONY

Jeremy Kennedy

At
hearing Jeremy Kennedy appeared and testified on behalf of the Secretary.

He
had been a MSHA inspector for nine years. His duties included E16 spot
inspections, E04 compliance, E06 fatality and E08 non-fatality investigations. (Tr.
28). He had inspected a variety of different type mines, including sand and
gravel, small and large limestone, zinc and copper. (Tr. 28-29). [3]

In
1999 he began working for Respondent. (Tr. 29). During his over eight years of
employment, he worked at various Doe Run mines, including the Fletcher Mine,
where he worked both as a surveyor’s assistant and surveyor. (Tr. 29-30). His
job duties included administering the mine’s bonus program, measuring the advancement
of face for tons removed, and measuring roof bolters’ linear feet of
advancement. (Tr. 30).

Kennedy
had received training at MSHA’s National Mine Academy in Beckley, West
Virginia. (Tr. 31). Over his career he had inspected the Fletcher Mine on eight
different occasions. He had conducted regular, follow-up, and spot inspections.
(Tr. 32). The Doe Run operation consisted of six mines in all. (Tr. 34). Four
were interconnected and two were satellites. (Tr. 34). Lead, copper and zinc
were mined out of Fletcher, utilizing the room and pillar style. [4]
(Tr. 35).

Kennedy
had gone to Fletcher Mine on January 21, 2015, as part of his E01 regular
inspection. (Tr. 38). His inspection had been going on for approximately one
week. (Tr. 39). Ground conditions, equipment, electrical conditions, and
housekeeping were all inspected. (Tr. 39). He actually travelled through the
area where the roof fall was to occur, visually inspecting the site. (Tr. 40).

Fletcher
mining operations consisted of a drill cycle, charging or blasting cycle, a
load haul cycle, a scaling cycle, and then a bolting cycle. (Tr. 41). Kennedy
noted that no mining was going on in the area of the impending accident during
his inspection. (Tr. 41). He actually observed the scaler [5]
that would be involved in the coming fatality. (Tr. 43). During his inspection
of the headings, Kennedy looked for any ground control issues. (Tr. 46). Given
his eight and a half years’ employment by Respondent, Kennedy was familiar with
Doe Run’s ground control practices. (Tr. 46). Ground control is a systematic method
of maintaining the back and ribs through scaling, rock bolting, and other means
to ensure safety. (Tr. 47; see also GX-7 Re: Respondent’s underground
roof and ground control policy.)

Test
holes may be drilled to evaluate the stability of a back and to look for
geological conditions in the area. (Tr. 47-48). Drillers look at the returns to
find what color the cuttings are. (Tr. 49). The percussion of the drill may
cause the rock to give off different sounds depending upon its condition. (Tr.
49). A drummy sound—like a kettle drum—could be indicative of unconsolidated
material. (Tr. 49-50).

Doe
Run’s ground control plan provided for test holes to be drilled in the middle
of intersections. [6]
(Tr. 51). Part of Fletcher’s ground control plan called for rock bolting. [7]
(Tr. 53; GX-7). Two types of bolts were used at Fletcher Mine: “split set” and
resin. [8]
Split set bolts are driven into drill holes whose diameter is somewhat smaller
than the bolts, friction being used to keep them in place. (Tr. 55; GX-14). Resin
bolts come in pre-packaged casings and are shot into the back, utilizing an
epoxy to stay in place. (Tr. 55).

During
his inspection of the area of the roof fall, Kennedy observed split set bolts
in a 5 foot by 5 foot pattern. (Tr. 56). None of the bolts were sticking out. (Tr.
56-57). Kennedy did not conduct any soundings. (Tr. 57). He did “not observe
anything that was not typical.” (Tr. 57).

When
miners enter an area they typically perform a visual inspection. (Tr. 58). If
they have the needed equipment, they may perform other testing methods. (Tr.
58). They will also fill out work inspection cards. (Tr. 58). On Respondent’s
work inspection cards there were sections to note loose rock but no sections to
report if soundings or test holes were performed. (Tr. 59; GX-7, p. 5).

Kennedy
could not recall observing any “churned” or “disrupted” rock in the RC3PO area,
the back appearing “smooth” without “unusual features.” (Tr. 59-60).

When
disrupted rock is encountered, a scaler might tighten up the pattern of bolts. (Tr.
60). A 4 foot by 4 foot or 3 foot by 3 foot pattern might be used. Sometimes
extra-large face plates might be added to the bolts. (Tr. 60).

There
had been recent blasting in the area of the fall (RC3PO) on the Monday prior to
the accident. (Tr. 61). However, Kennedy did not observe any loose rock in the
heading. (Tr. 61).

Kennedy
had been called on January 21, 2015, because there had been a fatal accident at
Fletcher Mine. (Tr. 62). He arrived at the site shortly after midnight. (Tr. 63).
A 103(j) order had been issued by a district staff member. (Tr. 63). The verbal
103(j) order had been reduced to a written 103(j) order and then modified to a
103(k) order. (Tr. 64; GX-17). The Respondent’s rescue and recovery plan had
been approved—with modifications—for scaling and rock removal to effectuate the
recovery of John Hoodenpyle. (Tr. 65-66).

Kennedy
stayed at the mine for the entire MSHA investigation which lasted approximately
two weeks. (Tr. 67). He took various photographs of the accident site,
including pictures of the scaler involved in the fatality. (Tr. 67-68; GX-3).

The
roof fall was approximately 125-200 tons in size. (Tr. 69). The roof height in
the fall area was 18 to 19 feet. The size of the fallen face was 55 feet long
by 20 feet wide by 6 feet thick at its deepest point. (Tr. 73).

The
scaler involved in the accident had both a rollover protective system (ROPS)
and a falling object protective system (FOPS)—but they were of no benefit in the
instant catastrophic fall. [9]
(Tr. 77-78).

The
split set bolts in the area had failed and had completely pulled out of the
ceiling. (Tr. 79-81; GX-14). There had been no test drilling prior to the roof
fall. (Tr. 84).

Kennedy
agreed that split set bolts were often used in “brecciated” conditions such as those
found at Fletcher Mine. When he conducted his pre-accident inspection on
January 21, 2015, Kennedy was competent enough to recognize hazardous
unconsolidated material and to issue a citation for such. (Tr. 90). Kennedy was
unaware of any ground falls at Fletcher Mine prior to January 21, 2015, which
had involved the failure of split sets in brecciated ground. (Tr. 91). During
his time as an inspector at Fletcher Mine, he had never issued a § 57.33 EO ground
control citation. (Tr. 91). Nor had he noticed any ground control issues in the
roof fall area at the time of his November 2014 EO1 quarterly inspection. (Tr.
92).

The
ground support system that he had observed was that of patterned split set
bolts. (Tr. 93). The ground appeared stable and competent. (Tr. 93).  No
citations were issued in either November 2014 or January 2015 for Respondent’s
failure to document workplace examination training on 5000-23. (Tr. 94-95).

During
his prior inspections of the northeast working area, Kennedy had not observed
any violations involving ground support or control, including faulty bolts or
bolt patterns. (Tr. 97-101). Kennedy had actually walked through the roof fall
area on January 21, 2015, prior to the accident. (Tr. 102). He noted no
hazardous conditions, changes, or anything else that would cause him concern. (Tr.
102). The last 2 rows of bolts—bordering the unbolted roof where the fall
occurred—appeared adequate, flush to back. (Tr. 105-106). No ground popping nor
cracking nor unusual noises were heard. (Tr. 106). The active faces and active
roadway were free of adverse conditions. (Tr. 108).

Kennedy’s
inspection took place approximately 8 hours before the fatal accident. (Tr.
109).

Scaler
operators at Doe Run normally placed the cabs of their units under bolted
ground with the remainder of their units under unbolted grounds, usually
positioning themselves 60 feet from the face. (Tr. 111).

During
his inspection of Fletcher Mine, Kennedy had not looked for test hole sites,
but rather focused on bolt patterns and the presence of unconsolidated rock. (Tr.
112). Typically a driller drills test holes in the back, drilling as vertical
as possible. (Tr. 113). Test holes have a greater height than bolt holes. (Tr.
121). One might be able to examine 3 or 4 feet of return in the back with a
test hole. (Tr. 121-122). Whether drilling bolt or test holes, drill operators
look for abnormal sounds, observe how fast the drill goes up into the rock, and
check to see if there is a void where the steel will jump. (Tr. 113).

Prior
to bolting the back, a scaler will scale for unconsolidated rock—which Mr.
Hoodenpyle was doing prior to the roof fall. (Tr. 115). Prior to scaling a
scaler will normally take the tooth of his scaling rig and sound the back. (Tr.
116).

Kennedy
opined that, based upon his experience, split set bolts were cheaper and faster
to install as compared to resin bolts. (Tr. 117). However, MSHA had established
no set policy as to which type to use. (Tr. 117). Kennedy knew of no bolts that
had failed, separating above the anchor point. (Tr. 120). Considering Doe Run’s
operating history, he found nothing that should have placed Respondent on
notice of inadequate ground control in the fall area. (Tr. 120).

Resin
bolts had greater strength than split set bolts. The split set bolts in the
fall area had not broken above the anchorage point but had been stripped out. (Tr.
129). The installation of resin bolts was more involved than the installation
of split sets. (Tr. 130). Resin needed to be placed inside the drill hole with
bolts being spun to mix the two-part epoxy. (Tr. 130-131). If a bolt was
over-spun, the bolt was rendered useless. (Tr. 131). Split set bolts, with
proper test hole drilling and hole size, required only friction to remain in
place. (Tr. 130-131).

James Vadnal
Direct Examination

James
Vadnal also appeared and testified upon behalf of the Secretary.

At
the time of hearing, Vadnal worked for MSHA in the technical support group,
roof control division. In this capacity he participated in accident
investigations, including the fatality at issue. [10]
(Tr. 140).

Vadnal
had first gone underground into Fletcher Mine on January 23, 2015. (Tr. 150). He
viewed the Getman scaler that had been involved in the fatality. [11]
(Tr. 151). He traveled to the fall area located between pillars 7516 and 7517. (Tr.
151). Immediately upon walking up to the edge of the fall area, Vadnal had
noticed that “the rocks had changed.” (Tr. 152). They had gone from a
“layered,’’ “bedded” look to a look where “everything was all jumbled up” or
had “disturbed bedding.” (Tr. 152).

The
center of the fall cavity revealed a horizontal bedding plane. (Tr. 154; GX-14,
p. 2). The dolomite at Doe Run had several distinctive beds. (Tr. 154). Each
bed was separated from the ore above or below by a bedding plane. (Tr. 154). Hydro-thermal
fluid had been pushed along these bedding planes; this is where the bulk of the
brecciation had taken place. (Tr. 155). The dolomite rock at Doe Run had been
broken apart in the geologic past by the pressures associated with the
injection of lead and zinc ore. (Tr. 155). Angular blocks of dolomite
surrounded by lead and zinc ore could be seen in the area being mined. (Tr.
155). Usually these blocks were rather small. (Tr. 155). However, in the fall
area there was disrupted bedding; it appeared all the beds had been picked up
and jumbled around. (Tr. 156). The blocks of dolomite that are referred to in
brecciation as the “inner class” were feet on a side—as opposed to the usual
inches on side size. (Tr. 155-156).

The
changed geology in the accident area was not only inside the fall cavity. (Tr.
157). The disturbed bedding from the roof fall cavity had carried on over to
the face in the left rib and a portion of the face. (Tr. 157). Photographs of
the fall area demonstrated the difference in brecciated ground versus churned
or larger inner class ground. (Tr. 158; GX-3). Horizontal bedding lines were
essentially the same color. (Tr. 158; GX-3, p. 9). Such horizontal bedding was
the normal look of Fletcher Mine. (Tr. 158-159). The ground around the roof
fall had gray areas with larger class of dolomite that appeared to have “no
orientation,” and were jumbled up and disturbed. (Tr. 159; GX-3, p. 10).

Vadnal
opined that the changes he had observed would have been obvious to others as
the changes were “dramatic” in nature. (Tr. 162).

Vadnal
helped to prepare a fatal accident report, which contained a graphic
representation of Fletcher Mine’s geologic strata. (Tr. 162; GX-12, p. 3). The
report recommended that where the roof or back of Fletcher Mine had “brecciated
dolomite or other hazardous conditions,” a “change in the density and type of
ground support might be warranted.” (Tr. 163-164; GX-12, p. 2). In areas
containing highly brecciated ground or disrupted bedding, Vadnal recommended
that test drilling be performed. (Tr. 165). If the test drilling revealed
changes in the composition of the roof, management could be alerted. [12]
(Tr. 165-166).

Drill
holes (for production) look different than test holes. (Tr. 169). Vadnal found
no test drill holes in the area of the fall. (Tr. 168).

In
addition to drilling test holes to ascertain possible hazardous conditions, a
miner can also visually inspect an area for changes in texture and color. (Tr.
166-167). Vadnal detected dramatic changes in the highly brecciated area of the
accident site. (Tr. 167).

The
ore deposits found at Fletcher Mine were formed by a hydrothermal process: hot,
very mineralized water was pushed directly in and around the dolomite. (Tr. 167-168).
Extraction required both the removal of dolomite and ore. (Tr. 168).

Areas
that looked “shaley” would be significant. When there were small shale layers
(on the roof) at Doe Run, this would constitute a hazardous condition. (Tr.
170-171).

If a
change in a mine’s geology is observed, an evaluation for possible hazardous
conditions should be performed. (Tr. 171). An evaluation would be an integral
part of a ground or roof control plan. (Tr. 172).

In
churned, highly brecciated zones (such as the fall area) the operator’s policy
should require fully grouted resin bolts to be installed for roof support at a
maximum spacing of 5 feet by 5 feet. (Tr. 172; GX-12, p. 2). Number 7 fully
grouted resin bolts have approximately three times the capacity of split set
bolts. (Tr. 172). In Vadnal’s opinion a reasonably prudent miner would
recognize the need for a (roof) evaluation in a highly brecciated and churned
area. (Tr. 179). It was Vadnal’s further opinion that, considering the
approximate 175 to 250 tons of material that had fallen, an adequate number of
resin bolts in the bolted area “could have” supported the roof area over the
scaler. (Tr. 179-180).

Typical
bolting patterns of 5 by 5 would mean 5 feet between each bolt with 5 feet
across the drift and 5 feet down the drift. (Tr. 180). In tightening a bolt
pattern the density of the ground support could be increased to 4 by 4 pattern.
(Tr. 181). By going to a 4 by 4 pattern or adding a bolt in the center (like
the number 5 on dice), the ground control system is made more robust and is
able to carry heavier loads. (Tr. 181). When hazardous conditions are detected,
a mine’s roof control system can be increased by shrinking the bolt pattern or
adding a bolt to the center of a pattern. (Tr. 181-182).

The
MSHA fatality report further recommended training of miners to identify
brecciated geologic zones because of the hazards associated with disturbed
bedding. (Tr. 182; GX-12, p. 2). Such training would include presentation of
“very good” pictures showing disturbed bedding and having experts explain what
differences (in ground conditions) should be looked for as part of annual
retraining. (Tr. 182). Drillers, in performing test holes, would be advised to
immediately report to management anything found out of the ordinary. (Tr. 183).
Further, test holes should be drilled at the beginning of each drilling cycle
to determine separations in the back strata. (Tr. 183). The holes should be
drilled as vertical as possible, be a minimum of one foot longer than the
support installed. (Tr. 183). The holes should be marked and the results of the
examinations should be reported to management. (Tr. 183).

Vadnal
further found the Doe Run area inspection cards to be inadequate in that they
did not notify the mine regarding conditions detected by visual or audio
examinations. (Tr. 184; GX-7, pp. 5-6). The cards had no space for the
description of abnormal ground condition or for the results of test drill
holes. (Tr. 185).

In
the fatality report Vadnal had also recommended that the back should be
supported (bolted) within 30 feet of the drift at all times. (Tr. 185; GX-12,
p. 2). This would reduce the exposure of miners to unbolted ground. (Tr. 186).

Despite
having been advised that there had been three other falls at Fletcher Mine prior
to the fatality at issue, Vadnal was unable to visit any of the sites, as Doe
Run management was unable to find or locate such. (Tr. 186).

Vadnal
opined that the victim was in a location that exposed him to falling material
because the “accident occurred” and “the material fell.” (Tr. 187). Vadnal
further opined that the accident was preventable: “with proper evaluation and
observations, the change in geology could have been detected and a change in
the roof support system could have been made.” (Tr. 187).

In
certain areas of Fletcher Mine there were relatively thin shale layers that
were indicative of a weaker roof. (Tr. 187-188; GX-8, p. 4). Persons
interviewed stated that roof bolt operators had been instructed to change from
friction stabilizers to 6 foot long fully grouted resin bolts in these areas. (Tr.
188; GX-8, p. 4). It would be left to the judgement and discretion of the roof
bolt operators to decide ground support spacing and the need for fully grouted
bolts. [13]
 (Tr. 188; GX-8, p. 4).

Most
of the scaler involved in the accident was under unbolted ground. (Tr. 190;
GX-12, p. 5). A photograph of the fall area (GX-12, p. 6) revealed how the roof
had changed from typically layered brecciated dolomite to churned disrupted
bedding. (Tr. 192). A picture of the intersection next to the fall area showed
the various layers of roof that was referred to as “typical layered breccia
dolomite roof.” (Tr. 197; GX-13, p. 11).

In
its Root Cause Analysis , MSHA concluded that Doe Run management had
“failed to establish policies and procedures for identifying hazardous
conditions.” (Tr. 199; GX-8, p. 6). Before the subject fatality, miners had not
been required to drill test holes at each intersection in order to identify
adverse ground conditions. (Tr. 199; GX-8, p. 6).

Drilling
test holes after an intersection was completed would be too late in the
process. (Tr. 199). Rather test holes should be drilled at the beginning of
each drill cycle. (Tr. 200; GX-8, p. 6). Further, test hole results should be
written down and the hole visibly marked. (Tr. 200). The written observations
should be communicated to management. (Tr. 200). Respondent work area
inspection cards should be modified so that test hole results could be
recorded. (Tr. 200; see also GX-7, p. 5).

Doe
Run management had also failed to design and install adequate support to
control the roof in areas where there was disrupted bedding of the brecciated zone.
(Tr. 200): such as existed in the RC3PO northeast area where persons worked and
travelled. (Tr. 200-201; GX-8, p. 6).

It
was further recommended that the roof and ribs be supported with 6 foot fully
grouted number 7 resin bolts or bolts with greater strength and anchorage
capacity. (Tr. 202). Bolting should be within 30 feet of the drift in breccia
zones with disrupted bedding. [14]
(Tr. 202; GX-8, p. 6).

It
was further recommended as a corrective action that “management”—someone other
than the bolting machine operator—should determine the type of roof support to
be installed to insure adequate face support. (Tr. 202-203; GX-8, p. 7).

The
final root cause of the accident was found to be management’s failure to ensure
that miners performed scaling operations from a safe location that did not
expose them to falling materials. [15]
(Tr. 203; GX-8, p. 7). As a corrective action it was recommended that new roof
control procedures be established requiring limited distances for unbolted
areas to ensure a safe location for scaling operations. (Tr. 203). Miners
should be trained in these procedures. (Tr. 203).

Vadnal Cross
Examination

On
cross examination Vadnal agreed that he had not observed what the back looked
like in the time period immediately prior to the fall. (Tr. 206). He assumed
that the changes he had observed in the fall cavity area were observable prior
to the accident. (Tr. 206-207). He had attempted to learn more about the other
falls that had reportedly occurred at Fletcher Mine but had been unable to
obtain further information from Doe Run management, including the mine
geologist. (Tr. 207-208). Vadnal did not know if these other falls had involved
bolted ground or similar ground conditions as involved in Hoodenpyle’s death. (Tr.
208). He had not observed any shale when he had traveled to the accident area. (Tr.
209).

Although
his title was mining engineer, Vadnal did not have a degree in mine engineering
or any other engineering degree. (Tr. 209). In view of his past mining and
engineering work experience, however, the Federal Government had deemed him
qualified to be classified as a mining engineer. (Tr. 209-210). His exposure to
brecciated ground conditions, [16]
prior to the Doe Run accident, was limited to a zinc mine, St. Lawrence Zinc,
in New York and Willow Lake Coal Mine [17]
in Illinois which had experienced a large number or roof falls. Prior to the
within hearing Vadnal had not ever testified as an expert regarding the holding
capacity of split set bolts. (Tr. 215). Nor had Vadnal, prior to the within
matter, ever been retained as an expert with respect to brecciated ground
conditions. (Tr. 215).

Vadnal
agreed that not all brecciated ground is adverse. (Tr. 216). He could not say
with any certainty that when breccia is re-cemented back together it would be
stronger than what the rock was before it broke apart. (Tr. 216). He agreed
that the “country rock or host rock” at Doe Run was dolomite and that dolomite
was a strong, chemically stable rock. (Tr. 217).

Prior
to his first visit on January 22, 2015, Vadnal had never examined the
brecciated ground conditions at Fletcher Mine. (Tr. 218). He concurred that “as
a whole” the ground conditions at Fletcher Mine were stable. (Tr. 218).

There
are varying degrees of brecciation. (Tr. 220). A layer of dolomite that has not
been disrupted, when pinned together by roof bolts, forms a (stable) beam that
spans the mine opening. (Tr. 220). However, when layers are no longer present
and “everything is all broken,” the beam is “a lot” harder to establish. (Tr.
220). Nonetheless, a beam may still be established in highly brecciated ground,
if there is adequate bolting. (Tr. 220-221).

Vadnal
saw nothing that alerted him as to possible hazardous conditions while
travelling to the accident scene. (Tr. 221, 223). The very edge of the fall
between 7508 and 7517 was “pretty ratty” and Vadnal did not come close to the fall
cavity in that area. (Tr. 223).

He
did not interview any of Respondent’s employees or MSHA personnel as to the
appearance of the fall area prior to the accident. (Tr. 232-233). He accorded
only “minimal credit” to Kennedy’s statements that nothing appeared unusual or
caused him concern in the cave area eight hours before the accident. (Tr. 235).
Kennedy’s visual inspection would only be part of an evaluation for hazardous
ground conditions, only the start of the evaluation. (Tr. 235). Vadnal’s
opinion would not be altered—even if scalers had been working in the area of
fall prior to the accident. (Tr. 237). Conditions could have changed over time. [18]
(Tr. 237).

Changes
in the size of the inner class would dictate a deeper evaluation of the
situation. (Tr. 239).

Vadnal
had not found any areas of change—similar to that observed in the fall area—at
other sites in Fletcher Mine. He had not interviewed any rib bolters at
Fletcher Mine. (Tr. 239). Nor had he travelled the whole of Fletcher Mine or
other Doe Run mines. (Tr. 241).

The
rubble that fell out of the fall cavity was consistent with large inner class. (Tr.
242). Vadnal did not see any flat tubular pieces in the rubble. (Tr. 242). He
was unable to find any test holes in the fall area and had been told by an
unnamed employee of Respondent that none had been drilled. (Tr. 244).

Eight
bolts had been found in the rubble pile and a ninth bolt in the fall area. (Tr.
245-246).

The
purpose of test hole drilling was to assess ground conditions. (Tr. 247). If individuals
paid attention, they might also detect changes during “production drilling” but
the purpose of such was to “hurry up and get it down.” (Tr. 247).

A
dead weight calculation is computed to determine the amount of ground control
fixtures required to support a certain amount of tonnage that is not moving or
is “static.” (Tr. 248). “Dynamic” loads, as opposed to static loads, are more
difficult to calculate. (Tr. 248).

Vadnal
did not know how the roof fall at issue had occurred. (Tr. 249). The force
which was placed on the bolts that fell was gravity. (Tr. 249). Vadnal had not
made calculations as to the precise number of resin bolts that would have been
required to have prevented the ground fall. (Tr. 250). He did opine that if No.
7 fully grouted 6 foot bolts [19]
had been installed with a tighter pattern, there would have “at some point”
been sufficient bolts to have held the roof up. (Tr. 250-251).

Vadnal
further opined that if the split set bolts in the failed roof had been replaced
with the same number or resin bolts in the same 5 foot by 5 foot pattern, the
roof would have held. [20]
(Tr. 251).

Vadnal
conceded that he had no idea, however, if a static or dynamic load had ripped
out the bolts. (Tr. 252). He further agreed that it was possible that the ground
fall had caused a cantilever effect on the bolts that were over Mr. Hoodenpyle.
(Tr. 253). He further conceded that he had previously stated that the “best”
indicator for present ground conditions was past operating history in similar
ground conditions. (Tr. 254). Vadnal had found no reportable ground falls at
Fletcher Mine in the prior five year operating history. (Tr. 255).

Prior
to the accident, the manufacturer had conducted pull tests of the friction
stabilizers in the RC3PO area and they had met spec. (Tr. 256). Surface holes
had been drilled at the mine but were too far from the accident site to the
relevant. [21]
(Tr. 256).

Vadnal
had been advised by the individual handing him Doe Run’s ground control plan
that employees had to read the plan and sign it at the end of retraining. (Tr.
257-258). He himself had never attended any Doe Run training session. (Tr.
258).

Other
than the fact that the roof fell, Vadnal based his conclusions that Doe Run was
not following its ground control policy based upon his inability to find any
test holes and the information he had received that none had been drilled. (Tr.
260-261).

Vadnal
did not know how or if Doe Run was making calculations in its decisions to use
bolts. (Tr. 262).

It
was not a violation of a mandatory safety standard for Doe Run to have had 75%
of the fall area unbolted. (Tr. 264). The ground did not fail above the anchor
point of the bolts. (Tr. 265).

Vadnal
was “surprised” that a test hole had not been drilled. (Tr. 266). A test
driller would have proceeded “a lot” slower than a production driller and would
have watched for changes in colors in cuttings. (Tr. 268). He would have noted
different penetration rates and would have looked for jumps in the steel that
might indicate a crack or void. (Tr. 268). He would have recorded these
findings and conveyed such to management. (Tr. 269).

Vadnal
had not spoken to the roof bolter who had bolted the accident site or to any
other hourly employee. (Tr. 269).

Vadnal
Redirect Examination

The
fallen inner class that contained certain of the roof bolts appeared larger
than the inner class circling the opening where the fall occurred and down the
rib. (Tr. 269; GX-14, photograph 9). It was “very possible” that this fallen
inner class would have been even more visible than that remaining on the roof. (Tr.
270).

Vadnal
was unaware at the time of his investigation that the roof bolters at Fletcher
Mine were being paid a bonus for how many bolts they installed in a given time
frame. (Tr. 270).

Vadnal Examination
by the Court

Assuming
that a different scaler with a 20 foot longer arm had been used by the victim,
Vadnal opined that a fatality may possibly not have occurred. (Tr. 273).

Michael Van Dorn

At
hearing Michael Van Dorn, MSHA field office supervisor, appeared and testified.

Van
Dorn had worked as a field office supervisor for 15-16 years. (Tr. 280). He
supervised seven employees in three states. (Tr. 280). He performed regular
inspections, conducted hazard complaint and accident investigations. (Tr. 280).
His fatal accident investigations included fatalities involving heavy
equipment, roof falls, and falls from heights. (Tr. 280). [22]

Van
Dorn headed the investigation of the Fletcher Mine accident. After being
telephoned by Robert Seelke of the fatality, Van Dorn arrived at the mine to
learn that Hoodenpyle’s body had already been recovered and brought to the
surface. (Tr. 286). Going underground he headed to the RC3PO area where he
observed that the scaler had been pulled out to the side. (Tr. 288). Individuals
were trimming and cleaning up materials. (Tr. 288).

Along
his way to the site, Van Dorn noticed in some places the roof bolts had looked
like the rock had either fallen from around them or had been trimmed from
around them. (Tr. 288). Wherever the roof was domed out at the fall site, the
rock had different colors. (Tr. 289).

“Shaley”
was a term used by people to describe a layer of shale at Fletcher Mine. (Tr.
289). Van Dorn believed that the different colors he had observed in the dome
were due to the presence of shale. [23]
(Tr. 289).

Van
Dorn had interviewed miners during the course of his investigation. (Tr. 290). A
miner named Ryan Bowden had advised him that the roof at Fletcher Mine appeared
in places to be shaley. (Tr. 292). Another miner reported a roof fall over by
the sump that had taken place approximately a year ago. (Tr. 292-293). Sam
McCabe, a production driller, reported that he knew of no test drilling in the
general RC3PO area. (Tr. 294). Bowden, who was the powder man in the area, further
indicated that there had been blasting in the area. (Tr. 294). Rather than
having a 17 millisecond delay between drifts—a technique that Van Dorn was
familiar with—the pre-accident blasting had involved the tying together of the
drifts with detonator cord creating a lot more vibration. [24]

In
interviewing miners about task training, Van Dorn was advised by scaling
machine operators that they were performing workplace examinations with their
cap light. (Tr. 295). None of the scalers reported that they were sounding the
back. (Tr. 295). Task training was conducted at Doe Run by having an
experienced miner train the next person to do the task training or workplace
exam. [25]
(Tr. 295-296).

Review
of Doe Run’s work area inspection cards prior to the accident did not reveal
any information that the miners recognized any changes in ground conditions. (Tr.
298; GX-7). In looking at other areas of the mine, Van Dorn noticed that the
drift next to where the accident took place had a “domed out” space. (Tr. 299).
Van Dorn however was unable to determine what had caused the space—whether it
was due to blasting, scaling, or a falling materials. (Tr. 299). [26]

Based
upon the information gathered by the routine accident investigation team, Van
Dorn had helped to author the final report of investigation that was signed in
June 2015. (Tr. 300-302; GX-8). In its discussion of “roof conditions” the
report described the predominant type of roof at Fletcher Mine as
horizontally-bedded (layered dolomite) which created favorable roof conditions.
(Tr. 302; GX-8, p. 4). Roof bolt operators had been instructed to change from
six-foot-long friction stabilizers [27]
to six-foot-long fully grouted resin rock bolts in shaley areas. (Tr. 302; GX-8,
p. 4).

Pull
tests had been conducted to gauge the support capacity of different types of
bolts. (Tr. 304). Resin bolts were shown to have a greater support capacity
than friction stabilizers, being three times as strong. (Tr. 305). The split
sets “yielded” approximately 18,000 pounds or 9 tons as opposed to resin bolts
which yielded 40,000 pounds. [28]
(Tr. 305).

In
the root cause analysis of the accident it was determined that management had
failed to establish policy and procedures for identifying hazardous ground
conditions in that, prior to the accident, miners were not required to drill
test holes at each intersection in order to identify adverse ground conditions. [29]
(Tr. 306; GX-8). Test holes were not being drilled; there was not a good relay
of information; if someone found changes in the rock, there was no good way to
get back to management to take any corrective actions needed to stabilize the
roof. (Tr. 306-307).

The
second root cause of the fatality was determined to be management’s failure to
design and install adequate support to control the roof in the disrupted
bedding of the brecciated zone of the back (roof) in the RC3PO northeast area. (Tr.
307; GX-8). The basis of this opinion was that Respondent had a roof fall in
the area and hadn’t been able to control the roof. (Tr. 307). The recommended
corrective action was for management to establish new policies and procedures
for identifying hazardous ground conditions and for training miners to drill
test holes at the beginning of each drilling cycle to identify any separation
in the roof strata. (Tr. 308). The test holes were required to be drilled, as
near to vertical as possible, and should extend not less than one foot larger
than the support installed. (Tr. 308; GX-8). The test holes should be visibly
marked and identified and the examination results recorded on the workplace
examination record. (Tr. 308; GX-8). It had been tech support’s determination
that the fall area had, in fact, contained disrupted bedding. (Tr. 308).

Fletcher
Mine had different roof types, including shale, which Van Dorn observed while
travelling in the mine. (Tr. 308-309). Although the mine had areas of water, he
saw no areas where the mine was seeping through the roof. (Tr. 309).

The
final root cause of the accident was determined to be management’s failure to
ensure that miners perform scaling operations from a safe location that would
not expose them to falling material. (Tr. 310; GX-9). When the subject accident
took place, the back quarter of the scaler was located under the last row of
roof bolts. (Tr. 310-311; GX-13, p. 3). Van Dorn opined that if the scaler had
been set further back toward the existing intersection—up toward pillars 7508
and 7516, Hoodenpyle would not have been injured. (Tr. 311-312; GX-13, p. 3).

GX-6
contained “Fatalgrams” regarding the roof fall accidents, including an accident
at a Doe Run mine in January 1998, in which a surveyor was crushed in a roof
fall. [30]
(Tr. 313-314). The “Best Practices” listed as a result of this roof fall were
that ground conditions should be tested, as well as visually examined after
blasting and prior to work commencing or as ground conditions warrant. (Tr.
314; GX-6). With further roof fall deaths, it was further recommended that test
holes and examinations be performed after each blast. (Tr. 314-315). Sounding, test
holes, and visual examinations are tools that can be utilized to ascertain
possible hazardous conditions. (Tr. 315). The advisories regarding such are
readily available to operators on MSHA’s website. (Tr. 316-317).

In
reference to § 57.3360 “Ground support use,” MSHA issued “Rules to Live By”
standards for metal/nonmetal, alerting mine operators of the fatal hazards
posed by roof and rib falls. (Tr. 317-319).

Van
Dorn had issued Citation No. 8680899 to Respondent for violation of § 57.3201. (Tr.
319; GX-1). The citation, dated March 11, 2015, was issued because there was a
Getman scaler that was being operated in an area of the Fletcher Mine where the
roof fell, hitting the miner and the machine. (Tr. 320). [31]

The
cab had not provided adequate protection for the miner. (Tr. 322).

The
citation had been modified to extend time periods to “get everything
terminated.” [32]
(Tr. 323). The citation was finally terminated with the area being posted,
barricaded, and being abandoned. (Tr. 323; GX-14, p. 14). Given that an
accident involving a death had in fact taken place, the gravity levels assessed
were “occurred” in section 10(a), “fatal” in section 10(b), and 1 person
affected in section 10(d). (Tr. 324). The level of negligence was determined to
be moderate. [33]
(Tr. 325).

The
violative conduct was found to be S&S in nature. (Tr. 325). The standard
was violated; there was a discrete safety “factor” (hazard) of rocks falling
from an 18 foot roof; it was likely that such a rock fall would result in
injury. (Tr. 326; GX-1). The likelihood of rocks or the ceiling falling was
based upon the failure to perform “all the tests and examinations” and the
failure to follow MSHA policies. (Tr. 326). An experienced person was needed to
evaluate any changes and to act accordingly. (Tr. 326). The hazard of rocks
falling and striking a person created the reasonable likelihood of injury. (Tr.
326; GX-1).

Van
Dorn also issued Citation No. 8680900 for violation of standard § 57.3360. (Tr.
327; GX12). This was also a 104(a) S&S citation. (Tr. 327; GX-2). [34]
This standard required that operators design, install, and maintain roof bolts
to control the ground. (Tr. 328).

In
order to develop an adequate ground control plan, mine geologists, engineers,
and others should be consulted. (Tr. 328). They would have to know the ground,
know the changes in it, what kind of material was on the roof, perform
appropriate testing, and install long enough bolts. (Tr. 328-329).

Van
Dorn had issued the citation for violation of § 57.3360 because there had been
a roof fall and roof bolts pulled out. (Tr. 329).

In
“good” ground, split set bolts could be used, but resin bolts should be used
wherever there were “bad” ground conditions. (Tr. 330). By performing visual
examinations, sound testings, and drilling test holes, a miner could know if he
was entering bad ground. (Tr. 330-331).

Based
upon his observations and tech support information, Van Dorn concluded that
split set bolts appeared to be exclusively used at Fletcher Mine. (Tr. 332). Given
the reports of another fall over by a sump, Doe Run should have considered
changing to resin bolt support. (Tr. 332-333). Tighter bolting patterns to
support more weight might also be indicated as a result of an evaluation and
testing of a particular area. (Tr. 333).

As
roof bolt(s) had come out and an accident involving death had actually taken
place, the gravity of the injury was assessed as “occurred” and “fatal.” (Tr.
333; GX-2). The operator’s level of negligence was determined to be “high”
because the operator knew or should have known of the existing conditions. (Tr.
334; GX-2). The citation was marked as S&S because there was a violation of
the mandatory safety standard: the roof had fallen causing injury. (Tr. 334). It
was likely that an accident would occur because the operator wasn’t conducting
testing for roof conditions and using resin bolts in the fall area. (Tr. 335).

Van
Dorn also issued Citation No. 8680902 for violation of § 48.7(a). (Tr. 335;
GX-9). This citation was amended to reflect a violation of § 48.9 (Records of
training). (Tr. 336). This amended citation had been issued because MSHA had
not received MSHA form 5000-23 from Respondent, recording and certifying that
its miners had been task trained on workplace examinations. (Tr. 336-337). Without
such training documentation, MSHA could not ascertain whether adequate training
had been afforded. (Tr. 336). MSHA’s Part 48(a) Training Plan for Fletcher Mine
required in part that any person designated to conduct or supervise workplace
examinations should receive appropriate training relative to this task. (Tr.
337; GX-10). This training was to be documented on an MSHA Form 5000-23. (Tr.
337; GX-10). The training plan was to go into effect in October of 2014. (Tr.
338).

The
original citation for violation of § 48.7(a) had been issued on March 12, 2015.
(Tr. 339; GX-9). No records of refresher training had been provided to MSHA as
of March 12, 2015, approximately five months after the training plan’s
effective date in October 2014. (Tr. 339). With the amendment to § 48.9, the
gravity was assessed as “no likelihood” with no lost workdays and one person
affected. (Tr. 340). The violative conduct was determined to be non-S&S. (Tr.
340). The amended citation still listed the negligence level as “high” because
the operator was responsible for knowing what was in his training plan and
Respondent should have known what was in his plan. (Tr. 340). Miners who were
interviewed all reported that they performed their workplace examinations by
using the lights off their machines and cap lights, a few saying that they
would be under bolted roof looking out. (Tr. 341). None reported sounding the
back. (Tr. 341).

The
MSHA assessed violation history report (GX-16) revealed no citations for
training plan violations in November 2014.

Van Dorn Cross
Examination

A
powder man, Ryan Bowden, was the only miner who had advised Van Dorn that the
mine was “a little shaley.” (Tr. 344, 348). Van Dorn conceded that Jeremy
Kennedy and Stephen Brille’s field notes regarding their interviews of Bowden
did not contain any mention of shale. (Tr. 344-345; GX-15, pp. 10, 19). There
was a reference, however, to “a little shale” mentioned in Van Dorn’s notes of
his Bowden interview. (Tr. 346-347; GX-15, p. 23). Van Dorn had not seen shale
at the accident scene. (Tr. 351).

The
other area where Van Dorn observed shale was approximately 100 yards from the
cave-in. (Tr. 349). Another area that had caused concern was where the roof had
fallen out around bolts or the roof had been scaled out around them. (Tr. 350).
There were no citations issued because of such. (Tr. 350). These were the only
two other areas that had caused concern. (Tr. 351).

Van
Dorn conceded that he had never actually asked specifically in his discussion
of workplace examinations whether soundings were being performed. (Tr. 352). Nobody
interviewed reported that there were adverse ground conditions that required
changes in the ground control policy. (Tr. 353). Nor did Van Dorn specifically
ask such. (Tr. 353).

Van
Dorn did ask hourly employees if they had any concerns about roof bolting in
the area and none expressed concern. (Tr. 353).

Kennedy
also had not observed anything abnormal during his “quick inspection.” (Tr.
354).

Van
Dorn believed split sets had been used at Fletcher Mine since 2000 and there
had been no reported accidents regarding such. (Tr. 355).

With
the exception of the two areas of concern that he previously testified
regarding, Van Dorn observed no other areas that had ground conditions that
disturbed him. (Tr. 356).

It
was common in a drill and blast type of mine that domed-out areas would appear
on a shot. (Tr. 358). This would not indicate systemically adverse conditions. (Tr.
358).

Van
Dorn did not have any issues with the bolts still in the roof closest to the
accident scene. (Tr. 359). He did not personally inspect the pillars and did
not see anything of concern from a ground control perspective regarding the
pillars. (Tr. 360).

No
reportable ground falls at Fletcher were found. (Tr. 361). Nor were any
unreportable ground falls located. (Tr. 361-362).

Approximately
90% of Fletcher Mine was brecciated ground. (Tr. 364). Van Dorn knew of no
split set failures between 2000 and January 2015. (Tr. 365). Van Dorn was
unaware if any other Doe Run mines had back falls similar to the instant
accident. (Tr. 366). There had been no § 57.3360 citations issued in the last
three years. (Tr. 366-367). Pull testing in 2014 did not reveal any split set
bolts that failed to meet manufacturer’s specifications as to holding capacity.
(Tr. 367-368). The Casteel ground fall was not taken into consideration in
issuing the § 57.3360 citation. (Tr. 368-369).

Van
Dorn conceded that there was nothing in Fletcher Mine’s history that supported
the issuance of his citation. (Tr. 370). Van Dorn did rely upon the fact that
roof bolts had been sticking straight up after the fall and that they had
failed. (Tr. 371). Van Dorn opined that if roof bolts failed, they were not
adequate to hold and therefore a citation was justified. (Tr. 371-372). The
mine’s past operating history would be considered in determining the level of
negligence. (Tr. 372).

Van
Dorn agreed that if roof bolts fail, an automatic citation is called for. (Tr.
373-374). Even if observable ground conditions may have been “okay” according
to Inspector Kennedy’s standards—the roof bolts had pulled out and “that’s
where I’m at on issuing it.” (Tr. 373).

It
was only after Vadnal pointed out the changes in the fall area did Van Dorn see
them. (Tr. 375).

Disturbed
bedding indicates that changes are happening and the area should be checked
out. (Tr. 376). Van Dorn himself saw nothing at Fletcher that immediately
struck his attention. (Tr. 377). He had no idea why the back fell. (Tr. 377). He
estimated 175 to 250 tons of rock fell—of which 75% was in unbolted ground. (Tr.
377). He did not know the amount of force placed on the split sets during the
fall or whether the force was static or dynamic. (Tr. 378-379).

Static
force is the “total force pushing down.”  (Tr. 378). Dynamic force would be “movement
of it or cantilever type,” having a crowbar effect on the bolts. (Tr. 378).

Van
Dorn did not know if resin bolts would have held but there would have been a
greater chance of holding because of their greater holding capacity. (Tr.
378-379). He did not know whether static or dynamic force had been involved in
the roof collapse. (Tr. 379). Van Dorn had no personal experience installing
split sets but had observed them being installed. (Tr. 381-382).

Doe
Run’s ground control policy did not require the installation of resin bolts in
shaley conditions. (Tr. 3482; GX-7). Split set bolts can support shaley ground.
(Tr. 384). Doe Run’s ground control policy did allow for bolt spacing to be
changed if conditions warranted such. (Tr. 384-385).

A
driller, Sam McCabe, advised Van Dorn that test drilling was not being
performed but no roof bolters had indicated such. (Tr. 385-389). [35]

The
sole basis for finding a violation of § 57.3201 was that Hoodenpyle “was in a
position where he got injured from falling material.” (Tr. 389). No more
factual grounds were necessary for the issuance of the citation. (Tr. 390). Many
mitigating circumstances surrounded the accident. (Tr. 390).

Van
Dorn argued that it was not uncommon for 75-80% of a scaler to be under
unbolted ground. (Tr. 390-391). He further agreed that the scaler cab was under
the last row of bolts at the time of the accident. (Tr. 391). It was not necessarily
a violation for a mechanical scaler to be under unbolted ground. (Tr. 391). Mitigating
circumstances had been found as to this accident because Doe Run management was
not in the fall area and had been unaware of the material falling on the
scaler. (Tr. 394). These factors had reduced the level of negligence from high
to moderate. (Tr. 395). Van Dorn agreed that another mitigating factor might be
that the (mining) process employed by Respondent had been in use for a long
time without prior incidents. (Tr. 395). That nobody in the fall area had
voiced any concerns regarding bolts or ground conditions would not constitute a
mitigating factor in that none of whom were management. (Tr. 396). For the same
reason, the MSHA inspector’s failure to note anything wrong with bolts or
ground conditions would not constitute a mitigating factor. (Tr. 396). The fact
that there had been no split sets failures in the past also would not
constitute a mitigating factor as to the scaling citation. (Tr. 397). The fact
that a scaler has FOPS had the potential for being a mitigating factor but not
for the accident at issue. (Tr. 397-398).

During
the investigation of the accident Van Dorn had garnered facts warranting the
issuance of Citation No. 8680902. (Tr. 399; Gx-9). As of January 2015 Doe Run
had not yet completed any training under its October 2014 approved training
program. (Tr. 399). Van Dorn agreed that the time this original citation citing
a violation of § 48.7(a) had been amended because the original allegations that
no training had taken place were incorrect. (Tr. 400).

Van
Dorn had learned that the citation had been amended on Friday prior to the
within hearing. [36]
(Tr. 402-403). He agreed that no workplace examination training had taken place
between October 14, 2014, when the plan had been approved, and January 26,
2015. (Tr. 403-404). Van Dorn did not know if Hoodenpyle had received workplace
examination training prior to his death. (Tr. 406). During his investigation
Van Dorn asked various individuals in a conference room if they had been task
trained on performing workplace examinations. (Tr. 407). All answered “yes,”
but none had MSHA form 5000-23 documentation. (Tr. 407). This was the evidence Van
Dorn used to support the amended citation. (Tr. 407-408). Van Dorn had not
considered Hoodenpyle in determining the amended citation but believed him to
fall within the class of people without documentation. (Tr. 406, 410).

Van
Dorn opined that Doe Run should have issued 5000-23s to document past training
received prior to the new October 2014 part 48(a) training plan—even though no
training had been afforded subsequent to October 2014. (Tr. 411).

Van
Dorn, however, stated that he didn’t agree with the way the amended citation
came about. (Tr. 412). He further acknowledged that the new Part 48(a) training
plan did not provide that Responded should go back and document that training
had taken place under a prior approved plan. (Tr. 413; see also GX-10, p. 13).

If a
mine has had a history of falls, whether reportable or not reportable, this
could go to a knowledge of change in conditions in the mine.

The
interview notes of Steve Strickland disclosed that Strickland had “glue bolted [37]
before in bad ground.” (Tr. 417; GX-15, p. 26). Big plates—base plates had also
been used before in bad ground to help with the holding of the roof. (Tr. 417;
GX-15, p. 26).

Clay McNail

Clay
McNail, superintendent of Fletcher Mine, appeared and testified on behalf of
the Respondent. (Tr. 419). He had been superintendent since 2010 and had worked
for Doe Run for 12 years. (Tr. 419-420). His job duties included developing
mine plans, working with survey and geological groups, and travelling on a
regular basis throughout the mine. [38]
(Tr. 420).

Fletcher
was one of five active Doe Run mines. (Tr. 422). Doe Run mines were located in
the Viburnum Trend, “a world class lead deposit,” which also contained zinc and
copper materials. (Tr. 424). Fletcher Mine first opened in 1965 and had ground
conditions similar to other mines within the Viburnum Trend. (Tr. 424). Doe Run
mines’ host or country rock was dolomite, dolomitic limestone. (Tr. 425). This
was “very competent” rock. (Tr. 425). The method of mining employed at Fletcher
was “modified room and pillar” mining. (Tr. 425). Because of elevation changes,
there is ramping up and down to different levels. (Tr. 425-426). The width of
Doe Run mines depended on the width of the drifts. (Tr. 426).

There
is a breccia trend that runs through the area which is followed in the mining
process, which makes for a more snake-like appearance than that found in coal
mine maps. (Tr. 426-427). Typical drifts and pillars at Fletcher range from 28
feet to 32 feet in width. (Tr. 427). The back is usually 16 feet to 18 feet
high and no lower than 14 feet due to equipment size. (Tr. 427). Successive
mining passes will result in areas as high as 100 feet to 120 feet in the
trend. (Tr. 427). The mining cycle at Fletcher starts with drilling holes in
the face and placing explosives in the holes. (Tr. 427). After the shot is set
off, a loader is sent in; this pushes up the fly rock and mucks what can be
mucked. (Tr. 428). When rock can no longer be loaded, a scaler comes in and,
either by machine or hand, takes down the loose rock, making the area safe
again. (Tr. 428). Loaders and trucks will come back in and complete the mucking
or loading of the rock. (Tr. 428). If more scaling is required, scalers may
come back in. (Tr. 428). Then the roof bolter comes in as final part of the
cycle. (Tr. 428). Then the process starts over again. (Tr. 428).

At
time of the accident bolting was performed at the intersections pursuant to
ground control policy. (Tr. 429). Roof bolts were the main source of ground
control at Fletcher Mine. (Tr. 429). Scaling involved the removal of rock that was
not competent and separated by a crack or something that had the potential to possibly
fall of its own accord. (Tr. 429). Blasting often creates the need for scaling.
(Tr. 429). 

Fletcher
uses mechanical scalers with telescoping booms run by operators. (Tr. 429). It
also uses, as an alternative, man baskets with two employees in the basket,
using six foot aluminum bars with chisel ends to remove the rock by hand. (Tr.
436). Below 25 feet both methods are used interchangeably; above 25 feet hand
scaling is used exclusively. (Tr. 430).

McNail
had created a supervisor training presentation regarding ground support. (Tr.
430; RX-B). In describing the major job duties for mechanical and high boom
scaling, McNail listed the following required actions: make areas safe by hand
scaling from the ground up to 100 feet high with basket trucks; make areas safe
by scaling with mechanical scaler; make accurate judgements on scaled areas
that they are safe for the mining cycle to continue; install roof bolts by
required means when necessary; complete other tasks as directed by mine
supervisor. (Tr. 431; RX-B). Scaling is performed before rock bolting to ensure
that rock is removed to a competent layer that will allow bolting to best
support the ground above it. (Tr. 432). Mechanical scalers and high boom
scalers are trained to sound the roof. (Tr. 432). Roof is sounded with
basically anything that gives audio feedback. (Tr. 432). A mechanical scaler
will ram the back with the tooth of his scaler and listen for sound. (Tr. 432).
A hollow sound might indicate a separation of layers or vug. [39]
(Tr. 433).

Fletcher
Mine employed Getman S330 mechanical scalers such as used by the victim. (Tr.
433). At the end of the scaler were teeth that allowed the operator into cracks
or features that he found. (Tr. 434). The Getman had a telescoping boom that
could extend 25-30 feet, allowing the operator to stay in his station yet
extend his reach. (Tr. 434). The Geman, used by the victim, had an articulation
ROPS/FOPS canopy, giving the scaler a wider range of coverage without the need
to physically move the machine. (Tr. 434). The operation station was located
farthest away from the working end of the machine. (Tr. 434).

Prior
to Hoodenpyle’s arrival, the header had already been scaled several times over
the course of a month. (Tr. 436). It had been scaled the day before the
accident—both day and night shift. (Tr. 436).

Fletcher
was a “very competent” section of the Bonneterre Formation and had already had millions
of tons extracted from it. (Tr. 436). A good breccia trend ran through the
middle of the mine. (Tr. 436). Adverse ground conditions at Fletcher were not
common and very localized. (Tr. 437). No matter the job title, all Fletcher
Mine employees are trained to identify such conditions. (Tr. 437). All
supervisors at Doe Run underwent annual underground roof and ground control
training. (Tr. 438; RX-D). Employees also received workplace examination
training—either during new miner training or annual refresher training. (Tr.
438).

Adverse
ground conditions, such as vug holes or faulting, can be determined by visual
examination. (Tr. 439).

The
ground conditions where the fall occurred were similar to those throughout the
trend generally. (Tr. 440; RX-A). A timeline had been developed describing the
January 2015 mining cycle in the fall area prior to the accident. (Tr. 441; RX-Z).
The area was shot on January 3. Scaling took place on January 4; crosshatching
was installed on January 5; bolts were also installed on January 5. (Tr.
442-443). More scaling was performed on January 7. The area was shot again on
January 8, with more scaling on January 10. (Tr. 442). The area was shot again
on January 13 and scaled again on January 15. Another shot occurred on January

18. The area was scaled on both shifts on January 20. (Tr. 442). Scaling
    continued on January 21 when Hoodenpyle entered the area. (Tr. 442; RX-Z).

Vernon
Roark was the bolter on January 5 who installed the split set bolts involved in
the accident. (Tr. 443-444).

Split
set bolts and resin bolts were used interchangeably in the mine. (Tr. 444). Due
to ground water coming through the roof, resin bolts could not be physically
installed in some areas of the mine because the resin packages containing the
glue would be washed out. (Tr. 444-445).

McNail
was not aware of any significant ground control issues at the Fletcher Mine as
a whole or in RC over cut area. (Tr. 447). No employee had even complained to
him of abnormal ground conditions. (Tr. 447). He had no knowledge regarding
split set bolt failure at Fletcher. (Tr. 447). McNail had traveled throughout
Fletcher Mine and had never personally observed any adverse ground conditions
that had not been controlled. (Tr. 448). It was normal procedure to do blasting
near bolted areas, the rock damage zone from a blast usually extending only a
couple of feet. (Tr. 449).

The
ground control policy in force at the time of the accident provided that
scaling would begin a minimum of 60 feet back from the active face. (Tr. 449;
RX-F). Generally the outline for roof bolting and scaling, rock bolting on a 5
by 5 pattern had been historically sufficient for intersections. (Tr. 449). The
ground control policy had not required the use of resin bolts in areas of
shale. (Tr. 449-450). Split sets had been used in areas of shale. (Tr. 450). The
space between 7508, 7516, 7517, and 7561, as depicted on the map at RX-E, was
not a completed intersection, and pursuant to the existent ground control
policy would not have required a test hole at the time of accident.

Cross
Examination of McNail

On
cross examination McNail conceded that blasting created a certain amount of
stress on rock.

Before
an intersection is completed, there need to be test holes drilled pursuant to
ground control policy. (Tr. 453). Bolting was budgeted for and McNail was not
“worried about money.” (Tr. 455). There were times when adverse ground
conditions had required decreased spacing. (Tr. 455). Pattern tightening was
not generally based upon reports of discoloration but upon reports of shale. (Tr.
456). McNail was not in the fall area the day that the accident had taken
place. (Tr. 456).

Redirect
Examination of McNail

The
operating history of Doe Run suggested that the ground control policy regarding
test holes was sufficient. (Tr. 457).

Though
bolting incurred additional costs and slowed production, Respondent nonetheless
chose to bolt throughout Fletcher Mine, including areas between pillars near
the fall site that were not required to be bolted. (Tr. 457-458).

Questioning by
the Court of McNail

McNail
didn’t have “any idea” as to the difference in costs between split set and
resin bolts. [40]
(Tr. 459).

Vernon
Roark Direct Examination

At
hearing Vernon Roark testified on behalf of Respondent. He had been working as
a roof bolter for Respondent for the last 18 years, 14 of which were at
Fletcher Mine. (Tr. 460-461). He had received training in sounding the back and
bolting, split set and resin. (Tr. 461-462). In installing a split set bolt, he
would first inspect the area, looking for “loose,” and if none found, drilling
a hole and then driving a bolt into the back. (Tr. 462). When drilling a hole
he looks at shavings and observes the way the steel goes, whether it’s jumping
or solid. (Tr. 462). Shavings can indicate where shale or clay mud is being
encountered. (Tr. 462-463). Shale was grayish in color and mud was red. (Tr.
463). The drill jumps if it hits soft ground or a void. (Tr. 463).

Roark
sounded the back every time he drilled a hole. When the steel hits the back, he
could tell if it was solid or “drummy.” (Tr. 464). A drummy sound could
indicate a layer was loose. (Tr. 464). If he encountered possible adverse
conditions, he would notify the geologist, Bob Ridings. (Tr. 464).

In
installing a resin bolt, glue is shot in after the hole is drilled. (Tr. 464). The
bolt is spun in and held for a few seconds until the glue sets up. (Tr. 465). He
was not aware of a situation where he would use one type of bolt versus
another. (Tr. 465). He had been installing split sets for the past five years—“that’s
about all I put in.” (Tr. 465). Prior to the accident on January 21, 2015, he
had bolted in the fall area on January 5. (Tr. 465). He was unaware of any
split sets failing in the past. (Tr. 466). When he was in the fall area on
January 5, 2015, the back and ribs looked “fine.” (Tr. 466-467). There was no
loose or voids. (Tr. 467). There was good color. (Tr. 467). There was nothing
visually different from other areas. (Tr. 467). In drilling the bolt hole and
in sounding the back, he noted no unusual shavings nor drumminess in sound nor
jumping. (Tr. 467). The drifts and pillars were unremarkable.

He
typically drilled two rows at a time, then returning to put the bolts in, with the
whole process taking about 15 minutes. (Tr. 468). When he drilled in the fall
area on January 5, he noticed nothing that required different spacing. (Tr.
468). He did not observe rounded boulders in the back. (Tr. 469). There was
nothing about the previously installed bolts that concerned him. (Tr. 469). There
were no abnormal noises. (Tr. 469).

Bolters
at Fletcher Mine did receive a bonus, calculated by linear feet, for the number
of bolts they installed. (Tr. 469). However, Roark did not care or “worry”
about the bonus but worried about the people going under the bolts. (Tr. 470). He
did not consider the area of the accident that he had bolted a completed
intersection. (Tr. 470; RX-E).

Cross
Examination of Roark

Split
set and resin bolts both have the same size six inch bolt plates. (Tr.
470-471). There are also larger “butterfly” plates that are 12 inches. (Tr.
471). These larger plates are “not very often” used. (Tr. 471). The normal
bolting pattern is 5 feet by 5 feet. (Tr. 471). On occasion, 4 feet by 4 feet
or 3 feet by 3 feet patterns are employed to give more holding power. (Tr.
471-472). No supervisor was present before Roark began bolting on January 5. (Tr.
472). Split sets were quicker to install than resin bolts. (Tr. 472).

In
the past Roark had hit clay mud, shale, voids, soft ground, and drummy ground
at Fletcher Mine, all of which might have required tighter bolting patterns. (Tr.
473). He had not been task trained to use a “jumbo drill” which was a larger
drill for drilling test holes. (Tr. 474).

He
relied upon Mr. Ridings, the geologist, to pass on information about adverse
ground conditions to a supervisor who would then decide to act or not act upon
such. (Tr. 475).

If
he encountered a void or vug, he would not file a written report but rather
orally inform his foreman. (Tr. 476).

The
bonus given for split set installation ranged from $200 to $800 monthly. (Tr.
476).

Roark
agreed that conditions could change in 50 to 100 feet. (Tr. 479). After he
stopped bolting on January 5, he walked into the heading about 25 feet from the
face and noted nothing unusual. (Tr. 479).

Roy Folkerts Direct
Examination

Roy
Folkerts appeared and testified on behalf of Respondent at the hearing. He had
held the job of roof man [41]
at Fletcher Mine on January 15, 2015. He had operated a mechanical scaler for
more than 30 years and for 10 years at Fletcher Mine. (Tr. 482). Getman “scratchers”
or scalers were used at Fletcher Mine to scratch the face and back to get loose
down. (Tr. 484). In scaling an area Folkerts would first get out of his cab and
examine the area for cracks, loose, and anything abnormal. (Tr. 482-486). He
would then return to his machine, stretch out the boom, hit and sound the back
with the tooth [42]
to see if the back sounded like clay or drummy. (Tr. 484). He would then do the
side of ribs and keep working his way up. (Tr. 484). The teeth are rotated
straight up and down and sideways to do the scaling. (Tr. 486).

Folkerts
worked in 10 foot sections, stretching out the boom and moving up every 10
feet. (Tr. 487). As he scaled he would perform multiple soundings each shift. (Tr.
488). When encountering loose or faults or cracks, he would use different
methods to get it down. (Tr. 488). He had never encountered a drummy or bad
back that prevented him from completing the scaling process by the end of his
shift. (Tr. 489). He had been in the RC3PO1 northeast area hundreds of times
prior to the accident, both as a mechanical scaler and hand scaler. (Tr.
489-490). He had always found the ground conditions to be good. (Tr. 491). He
had never observed loose split sets in the area. (Tr. 492). Sometimes the tooth
of a scaler can tug on an installed bolt and bend it but not pull it out. (Tr.
492-493). On January 20, 2015, he had been working in the area between 7508 and
7516 (RX-E) for several days and had taken four to five soundings. (Tr.
494-495). He had observed roof bolts in the area between 7516 and 7517 on
January 20, 2015, and they all looked normal and secure. (Tr. 495-496). He did
not observe big rocks in the back (as testified to previously). (Tr. 497). Based
upon his opinion and looking at the (fall) area, ground conditions appeared
good from the first time he had been in the (fall) area until the time of
accident. (Tr. 498).

Folkerts
considered Hoodenpyle a good operator who set his scaler in a proper position. (Tr.
500). Roark had never experienced material falling on his cab while scaling.

Roy Folkerts Cross
Examination

Folkerts
had stopped scaling in the area at about 7508 to 7516. (Tr. 502; RX-E).

Thomas Welch
Direct Examination

Thomas
Welch testified at hearing for Respondent. An hourly employee, he had worked at
Doe Run for 22 years, six years as a loader operator. [43]
(Tr. 505). As a front-end loader operator, his job duties were to go in after a
round has been shot, muck the heading out, clean it up, get it ready to be
scaled and bolted and re-drilled and again start the mining cycle. (Tr. 507). Some
scaling was done with the bucket on the loader. (Tr. 507). Any time scaling
can’t be performed with the bucket, the area is ribboned off and mechanical
scalers or hand scalers are brought in. (Tr. 507).

Welch
had been working in the roof fall area prior to Hoodenpyle’s death and had been
working on the same shift as the victim. (Tr. 508). He had seen Hoodenpyle
“doing his walk around inspection, like I seen him doing a thousand times.” (Tr.
508). Welch had been in the bolted area of the fall area. (Tr. 508). He had
driven his loader in between pillar 7508 and 7516. (Tr. 509; RX-E). Everything
looked normal: the back looked well; the pins were all in place; nothing looked
like it had recently fallen. (Tr. 509). He had been sitting between 7495 and
7508 ( see RX-E) waiting for trucks to be loaded again and had been at
the scene approximately one to one and one half hours prior to Hoodenpyle’s
arrival. (Tr. 510).

Prior
to the ground fall Welch did not hear anything indicating ground was moving. (Tr.
511). The ground conditions in the fall area appeared similar to the ground
conditions in other areas of the mine. (Tr. 512). He was not aware of any
unplanned ground falls of brecciated ground nor complaints about ground conditions.
(Tr. 512). While he did not see the ground fall, he heard it and thought it
sounded “like a lot of rock” for the area. (Tr. 514). When he arrived at the
post-accident site, he noted no shale or other suspicious ground conditions. (Tr.
515-516).

Thomas
Welch Cross Examination

When
scaling with the bucket of the loader, Welch would only scale up to about 6
feet. (Tr. 516). He did no sounding in the areas between 7508 and 7516. (Tr.
516-517). Nor did he check and drill test holes. (Tr. 517). He did not go into
the unbolted area between 7517 and 7561. (Tr. 517; RX-E). He did not examine
the ribs or back in the area nor went past the bolted area. (Tr. 517).

Jason England
Direct Examination

Jason
England, the safety manager at Doe Run, testified at hearing. (Tr. 520). He had
been Doe Run’s safety manager for 13 ½ years. (Tr. 520). He had previously
worked as a safety manager and specialist. (Tr. 520-521). As safety director,
England reviewed citations to help sites determine which to conference, managed
four safety specialists, helped implement and write training plans. (Tr. 521).

Miners
at Doe Run receive roof and ground control training, including the
identification of adverse ground conditions and procedures such as scaling, in
new miners’ classes and annual refresher training. (Tr. 522-523). Safety
specialists, experienced in ground control, demonstrate the proper use of
scaling bars and show the different types of bolts. Safety meetings and
supervisor training throughout the year also touch upon ground control issues. (Tr.
522). Hoodenpyle would have received training on Doe Run’s ground control
policy. (Tr. 523). Every employee is required to read and sign a copy of the
policy. (Tr. 523). RX-N was a compilation of the training documents signed by Hoodenpyle
throughout his career at Doe Run, including ground control policies. [44]
(Tr. 523-523; RX-N).

Hoodenpyle
had been task trained for the Getman scaler in February 2013. (Tr. 525-526).

As
safety director, England would have received notice of any mine accidents but
had not been notified of any accidents involving bolted ground falls prior to
January 21, 2015. (Tr. 526). His review of records disclosed no reports of
ground falls in ground supported by split set bolts. (Tr. 527). Nor had anyone
ever expressed concerns to him regarding the use of friction stabilizer bolts
at Fletcher Mine. (Tr. 527). Reviewing records back to 2010, he found no
injuries as the result of ground falls on cabs with ROPS/FOPS. (Tr. 528). Internal
investigations revealed nothing indicating ground support in the area had been
inadequate. (Tr. 528).

There
were no § 57.3360 violations found in Fletcher Mine’s 10 year citation history.
(Tr. 528-529). There was one citation for violation of § 57.3201 in 2009. (Tr.
529). There was no indication that the mechanical scaling process utilized by
Doe Run (for at least the past 10 years) had exposed miners to the danger of
falling material. [45]
(Tr. 530). There was no record of mechanical scaler injuries. (Tr. 530). MSHA
had never voiced concerns about the process. (Tr. 531).

England
had become aware the day before the hearing of the amendment to Citation No. 8680902
from a training violation to a document citation. (Tr. 531).

During
the closeout conference England objected to Doe Run being cited for failure to
document workplace examination training. Hoodenpyle had received his workplace
examination training during a time period when the October 2014 plan then in
fact did not require such 5000-23 documentation. (Tr. 535). England did not deem
it proper to write a citation on training that was conducted prior to the new
plan’s approval.  (Tr. 532). No new miner class training or refresher training
had been conducted or miner transfers had taken place under the new plan
between its approval and the accident date. (Tr. 533). Between the new training
plan’s approval and the date of citation there was nobody at Doe Run who was
required to receive task training on workplace examinations. (Tr. 533).

Review
of the new Part 48 training plan did not indicate that MSHA forms 5000-23
should have been submitted for workplace examinations under the old training
plan. (Tr. 537-538; GX-10, p. 13). The first annual refresher training regarding
workplace examinations after accident was in February 2015. (Tr. 539). 5000-23
documentation was issued for such. (Tr. 540). During the time period between
October 2014 and January 2015 MSHA, during its inspections, issued no citations
for 5000-23 documentation violations. (Tr. 540-541).

Jason England Cross
Examination

Falls
from unbolted ground would not generally be reported. (Tr. 542).

Randall Hanning
Direct Examination

Randall
Hanning held the position of mine operations manager at Doe Run since October
2014, having worked for the Respondent since September 1998. [46]
(Tr. 546-547).

As a
mine operations manager he manages the production of all the mines, helping
mine superintendents in their daily activities. (Tr. 549). His position is cross
functional with other departments, including maintenance, safety, and budgetary
departments. (Tr. 549).

Hanning
worked underground at four of Doe Run’s mines. (Tr. 549). Generally, the ground
conditions were similar at all of the mines with dolomite as the host rock and
split stabilizers being utilized since 1998. (Tr. 550). He could not recall any
split set failures. (Tr. 551). He was familiar with the installation of both
split set and resin bolts. (Tr. 552). He opined that split sets and resins were
“equal depending on how you use them and the situation and all that.” (Tr.
553).

While
holding capacity, by pull testing, disclosed six to eight tons for split sets
and 20 tons for resin bolts, Hanning liked split set bolts because in “real
wet” ground resin bolts did not work as well, it being difficult to keep the
resin up in the holes. (Tr. 553). With split sets Hanning was more confident of
“a quality installation,” it not taking a “rocket science” to put in a split
set bolt. (Tr. 553-554). With resin bolts, there is a concern that there is not
enough resin in the hole or if there is sufficient spinning. (Tr. 554). Closing
the split set pattern will help to increase the holding capacity to match resin
bolts. (Tr. 554). The Doe Run ground control policy in effect on January 21,
2015, allowed for closer patterns if the bolter reached the determination such
was necessary. (Tr. 555).

Hanning
had travelled to the fall area after the accident but did not see any adverse
ground conditions on his way to the site. (Tr. 556).

Randall
Hanning Cross Examination

Split
set and resin bolts are the only two types of bolts used at Fletcher Mine. (Tr.
558). They are not necessarily selected based upon ground conditions. (Tr.
558). There are two types of machines used in installing bolts: a split set and
resin bolter. (Tr. 558). If one is unavailable, then the other one is used. (Tr.
559). Bolters are paid a bonus depending upon the amount of bolting they do in
a given time period. (Tr. 559). The incentive program can range from $200 to
$800 a month. (Tr. 559).

Hanning
had not visited the fall area prior to the accident and hadn’t made any
evaluation of ground conditions. (Tr. 559).

There
was no requirement in Doe Run’s ground control policy in effect in January 2015
that test drill holes be marked. (Tr. 560).

The
fall area was not a wet area that would have prevented the use of resin bolts. (Tr.
562).

Hanning
had observed split set bolts being installed in areas containing shale. (Tr.
563-564). Such a practice was not prohibited by Doe Run’s ground control policy
in effect in January 2015. (Tr. 564).

George
Moellering Direct Examination

George
Moellering, Respondent’s Southeast Missouri exploration manager, appeared and
testified at hearing. He had worked for Doe Run for 28 ½ years. [47]
(Tr. 572). He had held his current position as Southeast Missouri exploration
manager since 2012. (Tr. 576). His duties were basically the same as chief mine
geologist with some additional duties, including setting policy for the mine
geology group. (Tr. 576). Moellering had analyzed surface hole logs, graded
faces, and mine planned to avoid “dilution.” [48]
(Tr. 577). As a geologist he would often go underground to visually determine
different types of rock structures to help in the mining decision-making
process. (Tr. 578).

Doe
Run’s mining areas run approximately 32.5 miles long. (Tr. 578; RX-A). The
breccia trend at Doe Run is very intense in some places such as the Buick Mine
and other places it is very subtle. (Tr. 580; RX-A). The entire Viburnum Trend
had been dolomitized over the years, the dolomite sequence being narrow,
generally less than two to three miles wide. (Tr. 581). [49]

In
particular the Fletcher Mine had one of the higher grades in the Viburnum Trend
with very strong and stable dolomite host rock. (Tr. 583-584). The geologic
conditions in Fletcher Mine and in the accident area—RC3PO Northeast—were
similar to other parts of the Doe Run complex. (Tr. 584-585; RX-A). Although
the general breccia is the same, every run is going to look different. (Tr.
585). The rocks are turned different ways every round: taking a picture of it
in one area and comparing a picture of it in another area would not show like
images but the general structure would be the same. (Tr. 585). So changes (in
appearance) would be quite common. (Tr. 585).

RX-I
contained a photograph of a classic breccia taken at Casteel Mine which was a
typical representation of breccia found in the Doe Run mines. (Tr. 586-587). [50]
Describing different photographs of breccia with fracturing and different
blocks of colored material, Moellering opined that none of the pictures
depicted adverse ground conditions. (Tr. 587-589; RX-I). As breccia is
re-cemented together over millions of years it can become even stronger in
character. (Tr. 589-590). Brecciated ground conditions do not per se constitute
hazardous conditions. (Tr. 590-591).

Moellering
had walked with Vadnal to the fall area on January 21, 2015, and noted the
changes that Vadnal had alluded to but found the changes to be “no surprise” in
a breccia trend. (Tr. 591). As one comes from slightly brecciated ground into
the main core of the breccia, change is expected. (Tr. 591-592). Moellering
observed various changes in the face of the accident area: lighter color rock;
different colors in some of the rocks; gray silt [51]
showing in the back. (Tr. 593-594; area between 7561 and 7517 on RX-E). Nothing
that Moellering observed did he find to be as a geologist unusual. (Tr. 595). He
saw no shale on the ribs or back. (Tr. 595).

There
was a surface hole approximately 140 feet in front of the mine workings that
had not been cut with mining. (Tr. 596; RX-J). He had evaluated the lithology
of the surface hole and found it to be typical of every other surface hole in
the area. (Tr. 598). Nothing in the hole indicated the existence of adverse
conditions. (Tr. 598). Nor did he see anything unusual about the elevation
around 1086. (Tr. 599). He also did not detect any shale in the fall area
and/or rocks in the fall area depicted in the photograph at GX-13, page 006. (Tr.
600-601).

In
examining the photograph of rock laying between the pillars 7517 and 7561
(RX-E) Moellering opined that the rock looked like it had come out of the
portion of the fall between 7517 and 7561. (Tr. 601). In looking at the
photographs of the fallen rock, he did not note the change that he noticed on
the face between 7561 and 7517. (Tr. 601). The face appeared to be highly
brecciated and the material on the ground appeared to be pretty well flat
bedded. (Tr. 602). He saw no evidence of shale in the rocks that had fallen on
the scaler cab. (Tr. 603).

Moellering
disagreed with Vadnal’s assessment that heavily disrupted bedding could not hold
a good back. (Tr. 604). Recementation was the key: if the rock was
well-cemented together, there would be no problem. (Tr. 604). Based upon his
past experience and education, he found no evidence of inadequate cementation
in his review of photographs from the fall area. (Tr. 605). During his
employment at Doe Run he had never seen nor heard of an unplanned ground fall—in
bolted or unbolted ground—of the magnitude of the instant incident in similar
ground conditions. (Tr. 605). As a geologist, he believed brecciated dolomite
was safe ground to work under. (Tr. 605-606). Nothing in the photographs
reviewed suggest to him as a geologist that ground conditions required more
analysis or testing. (Tr. 606). High brecciated ground, if well cemented, was
safe to work under. (Tr. 606). Mining production at Fletcher Mine, in
brecciated condition, had been ongoing from 1965. (Tr. 607). Moellering had
been unaware of any split set failure in any area of brecciated ground in RC3PO1.
(Tr. 607).

Moellering
Cross Examination

Surface
holes cannot inform a miner whether the back or roof in a given area is stable.
(Tr. 608). Grade sheets are a name for a report that a geologist produces when
he’s on any round that goes underground. A geologist would have the option of
making comments on them about the mining area. (Tr. 608). Although copies are
given to other management and employees, grade sheets are primarily for the
purpose of determining an area contains ore that the geologist wants to have
mined. (Tr. 609).

Moellering
agreed that ground conditions could change from drift to drift and that was why
evaluations were required. (Tr. 610). The difference in dolomite class (size)
had no effect on its strength. (Tr. 611). Blasting can open seams and enlarge
fractures. (Tr. 614). There could have been vugs, holes, or voids or some other
condition that could have occurred in the space between the surface hole
previously testified to and the fall site 140 feet away that could have
affected the stability of the rock. (Tr. 615). Moellering did not participate
in decisions on bolting. (Tr. 615).

It
was Moellering’s opinion that the percentage and class of the dolomite in a
measured stone didn’t have any effect on the strength. (Tr. 616).  

Moellering
Redirect

The
cement or matrix in brecciated conditions was generally white sparry dolomite. (Tr.
616).

Moellering
Recross

More
elements or different types of rock could affect the strength of the matrix. (Tr.
619).

Thomas Yanske
Direct Examination

Thomas
Yanske, Doe Run’s mine services manager, testified at hearing. (Tr. 621). [52]

As mine services
manager Yanske looked after the technical side of mining, assisting in production,
supervising engineers, dealing with ground support. (Tr. 621). Yanske earned a
Bachelor of Science in engineering in 1977 and later earned a professional
engineer’s license. (Tr. 622). In his early career he had been involved with
the installation of roof bolts, actually installing split set bolts. (Tr. 622,
624). Later, he had been further involved with ground control issues and
designing ground control systems. (Tr. 626). He had moved his offices to
Fletcher Mine in 1992, working with pillar extraction and making evaluations as
to what would be required to support roof and back. (Tr. 627). From 1995 to
2003, he had been involved as a mine engineer with the effect of pillar
extraction on rock bolts, evaluating both resin bolts and split set conventional
bolts. (Tr. 627-628). As a mine service manager since 2004, he managed three
groups of employees: a surveying group which did all the surveying underground,
ensuring all the maps were up to date and which also managed the bonus program
for miners; a tech service group which consisted of five engineers who were
extensively involved with pillar extraction; a mine planning group which looked
at mining “from all operations from short-term, mid-term, to long-term
planning.” (Tr. 628). His tech service group coordinated with the vendor in
setting up pull tests for the various types of bolts used at the mine. (Tr.
629).

Yanske
was familiar with Doe Run’s ground control policy that was in effect on January
21, 2015, and had participated in revising the policy in 2010 to require that
the area above a person jack legging [53]
needed to be bolted. (Tr. 631). The policy had also been revised after a
fatality in 1998. (Tr. 632). It was provided that workplace examinations would
start out 60 feet from the face. (Tr. 632). Test holes would be utilized and
completed one per round. (Tr. 632). Surveyors would be required to have scaling
bars and an area would be tested and scaled before work began. (Tr. 632).

Yanske
was unaware of any unplanned ground falls during the time period between the
institution of the new ground control policy following the 1998 fatality and
the instant January 21, 2015 accident. (Tr. 634). The area between pillar 7515
and 7517 where the accident occurred was not a completed intersection. (Tr.
635). The ground control policy then in effect would not have required the
entire area to be bolted.  (Tr. 635).

Although
MSHA had requested to see Doe Run’s ground control policy prior to January 21,
2015, MSHA, to Yanske’s knowledge, had not recommended any changes to the
policy. (Tr. 636).

In
installing split set bolts, a hole is drilled slightly smaller than the bolt
itself. (Tr. 637). The bolt is hammered into place; the friction between the
bolt and rock causes a radial force to the side which holds the layers of rock
together. (Tr. 637). A roof bolter machine, rather than a jack leg, is now used
to hammer the friction stabilizer in place.  (Tr. 637-638).

The
holding capacity of a split set bolt was shown by pull tests to be six to eight
tons. (Tr. 638). This holding capacity was shown to be sufficient to support
the ground at Doe Run. (Tr. 638). Yanske had actually met the creator of the
split set—Dr. Scott—while Yanske had been attending college in 1977. (Tr. 640).
He knew of no failures of split sets since his arrival at Doe Run in 1990. (Tr.
638).

When
installing resin bolts, a hole is drilled and a cartridge of glue is inserted
into the hole. The bolt is then inserted and spun into a two-part epoxy. (Tr.
640). They are separated in the plastic cartridges themselves. As the bolt is
pushed up into the hole, it splits the cartridges and they rotate a prescribed amount
of times. (Tr. 640). The bolt mixes the two parts together and epoxy glue sets
up and holds the bolt into place. (Tr. 640). Resin bolts have a higher holding
capacity than split set bolts but might not be used in ground that has a lot of
water coming from it. (Tr. 641). Split sets cannot be used in soft ground
because of the lack of friction. (Tr. 642). Split sets were appropriate ground
support for brecciated conditions and, if properly installed, for shale. [54]
(Tr. 642).

Yanske
had travelled to the fall area after the accident and did not consider it
shaley. (Tr. 643). He did not observe any shale in the area. (Tr. 643). A
static load is a load that is in place. A dynamic load is a load where rock is
moving. (Tr. 643). It was difficult to calculate dynamic loads and Yanske knew
of no one who calculated dynamic loads on a regular basis. (Tr. 644). He also knew
of no type of pull test that could measure a dynamic load. (Tr. 644).

Prior
to the ground fall bolts had been in place in the fall area for two weeks,
since January 1, 2015. (Tr. 645). Yanske opined one of two things happened
after Hoodenpyle had begun scaling. As Hoodenpyle was reaching out onto
unsupported ground with his boom to scale a piece of loose either he hit a keyblock
and dislodged it which in turn allowed other rocks to fall or some force he
generated in scaling caused it to go beyond—to go where it was no longer
equilibrium—and that rock fell. (Tr. 645-646). In turn when it fell, it put
dynamic load on those bolts in place, causing bolts to pull out. (Tr. 646). Yanske
felt that the fall did not originate at the bolted ground because bolts had
been in place prior to the ground fall for two weeks. (Tr. 646). When the
ground fall took place, it did not go above the anchor point of the bolt. It
actually separated below the anchor point which made Yanske feel the fall
originated in the unsupported ground. (Tr. 646). The analogy would be similar
to an underground miner taking his scaling bar, sticking it pointed end and
trying to pry down a rock. As a miner slides his hands down a scaling bar it’s
very difficult to pry down a rock. But if the miner puts his hands at the far
end of the scaling bar, six feet from the prying point, the fulcrum effect
makes it a lot easier. (Tr. 646-647). The rock out in the unsupported ground
acted in the same way as a scaling bar, actually pulling rock bolts out of the
back. (Tr. 647).

Dynamic
forces and dynamic loads cannot be anticipated. It would be “strictly
speculation” to state that resin bolts would have prevented the fall. (Tr.
647). With dynamic loading and the longer the moment arm is, the more force is
generated with the rock sitting out there, even though the weight in the
unbolted rock would not be as much in weight as the rest. (Tr. 647). The
multiplying force could cause the bolts to come out. (Tr. 648). Further, Yanske
opined that a test hole in the middle of the intersection may not have revealed
anything adverse. (Tr. 648). Based upon Doe Run’s operating history and his
knowledge of what the current ground conditions looked like in the area of the
accident prior to the fall, he opined that there was no indication that the
six-foot friction stabilizer bolts were inadequate. (Tr. 648).

All
breccia is disrupted. Even highly brecciated ground can be supported by split
set bolts as demonstrated by their use in Doe Run mines for decades. (Tr.
649-650).

In
conducting a pull test, the load is continued until slippage of the bolt is
detected. (Tr. 652). The slippage point indicates the bolt’s maximum holding
capacity. (Tr. 652).

Thomas Yanske
Cross Examination

In
addition to the bolters, other groups involved in production that receive bonuses
at Doe Run are: drillers; roof bolters; backfill operators; mine support
people; supervisors (annual bonuses). (Tr. 654). Geologists also received
variable bonuses. (Tr. 654). The faster work is completed in a safe fashion [55] ,
the more the bonus. (Tr. 654).

There
is ground in the mine that cannot be safely mined due to geologic features. (Tr.
654). These areas will be bermed and flagged off. (Tr. 655). When too much
water is encountered, more scaling is performed or additional bolts installed. (Tr.
655-656).

A
deciding factor in determining whether to utilize split set or resin bolts may
be the type of bolting machine that is available. (Tr. 656). In evaluating a
roof, miners look for such features as fractures that might indicate an opening
or movement, shale, color changes in the rock. (Tr. 656). Spacing patterns of
bolts might be tightened to increase holding capacity in such situations as
when larger beams like a brow are exposed or where a hole is encountered. (Tr.
658). Butterfly plates can also be used to prevent materials from falling. (Tr.
658).

Yanske
repeated his opinion that the fall had been caused by a keyblock being
dislodged during scaling or some other force that the victim induced causing it
to go beyond equilibrium and fall. (Tr. 659).

Resin
bolts in a tightened pattern would have more holding capacity than split set
bolts. Because dynamic loads are so difficult to calculate the safety factor
involved in increasing bolt patterns would be speculative in nature. (Tr. 660).

The
area of ground involved in the 1998 Casteel Mine fatality was unbolted. (Tr.
662-663). If at the time of the fall Hoodenpyle’s scaler had been back 15 to 20
more feet, he may have been in a protected area. (Tr. 663). [56]

Thomas Yanske
Redirect

Any
part of the roof that was being scaled at the time of accident—not just a keyblock—could
have been disturbed, causing a disruption in the equilibrium, setting the fall
in motion. (Tr. 667-668).

Thomas Yanske
Questioning by the Court

Split
set bolts can be installed “a little quicker” than resin bolts. Split sets are
also “a little cheaper” than resin bolts. (Tr. 670). [57]

Robert Ridings
Direct Examination

Robert
Ridings testified at hearing. He had been employed at Doe Run since October
2007 and was currently senior mine geologist. (Tr. 671). He had been working at
Fletcher Mine as a geologist on January 21, 2015. (Tr. 672). As a geologist his
primary duty was to come up with a hypothesis of the location of mine ore. (Tr.
672). Based upon data available he tested the hypothesis by managing
underground drilling which took core samples. (Tr. 672). The underground
percussion drill powders rock along the hole that can be assayed for data. He
has a surface expiration program. (Tr. 672). He uses data from all sources to
support or not support his opinion as to where ore is to be found in a certain
area. (Tr. 673). He oversees the mining of the stopes of all the ore bodies
that he has found. (Tr. 673). He looks for breccia, fractures, structures,
anything that might serve as a conduit or have permeability for which the ore
to deposit in. (Tr. 673). He goes underground for about four hours on the
average of three days per week. (Tr. 673-674).

His
activities include evaluating ground conditions. (Tr. 674). He looks for loose
rock. (Tr. 674). Areas that have stylolite or a parting will be blasted so that
loose rock could be scratched down. (Tr. 674). Any area that presents a concern
is taped off and noted on his grade sheets. (Tr. 675). Nobody can enter it
until it’s scaled down and safe. (Tr. 675).

Breccia
is the most common form of host rock at Fletcher Mine. (Tr. 675). A geologist
uses grade sheets with mapping to convey to foremen and managers the exact
grade of ore located underground at all the areas being mined. (Tr. 676; RX-R). [58]
Any adverse condition would also be noted on the grade sheet. (Tr. 679).

During
the month prior to the accident Ridings had in fact worked in the area of the
fall (RC3PO northeast). (Tr. 680). He had created the Doe Run grade sheets in
December 2014. (Tr. 680; RX-Q). He did not recall observing any adverse
conditions, inadequate ground support, or any condition indicating a possible
hazard on December 26, 2014. (Tr. 681). Nor did he observe any of such on
January 5, 2015, or January 9, 2015. (Tr. 682-683). During an underground trip
on January 12, 2015, he was surveying by eye and saw nothing that would cause
alarm. (Tr. 684; RX-E). On January 16, 2015, the workings had advanced a
little. He again saw nothing, including bolting or ground control, that looked
dangerous. (Tr. 684).

On
the day of the accident Ridings drove through the exact area where the fall
took place and again saw nothing that would cause alarm. (Tr. 685). The time
that he drove through was approximately 10:30 am to 1:00 pm. (Tr. 685). At the
time Ridings was travelling with another geologist who was training for
Fletcher and he was “kind of showing him around.” (Tr. 685). There was nothing
unusual about the brecciated back that he observed in the fall area. (Tr. 687).
He did not notice any boulders in the back in what was to be the proposed
intersection. (Tr. 685; see also RX-E). He actually saw the bolts that
would later fall: They looked “good”; plates were flat up against the back. (Tr.
689).

He
saw no evidence of a recent rock fall and heard no sounds, popping or cracking,
indicating ground was moving. (Tr. 690). He saw no evidence of unusual cracks
or fractures. (Tr. 690).

As a
geologist he is often advised if somebody notes a possible adverse condition. (Tr.
690-691). Usually the first to notice such are roof bolters. (Tr. 691). The
roof bolter Vern Roark had in the past brought possible adverse conditions to
Ridings’ attention but did not report anything about the fall area at issue. (Tr.
691). Nor had anyone else. (Tr. 692).

There
was nothing in the month leading up to the accident date that indicated that
the ground support was inadequately supporting the ground. (Tr. 692). The fall
area ground was similar to the entire RC West Fork overcut and similar to areas
supported by 5 foot by 5 foot patterns. (Tr. 692). He did not recall any
similar situations where split sets installed in similar ground conditions had
failed. (Tr. 692).

Robert Ridings Cross
Examination

On
cross examination Ridings agreed that he was not a bolter or driller nor had
been involved in the development of any ground control or safety program at
Fletcher. (Tr. 693). He further conceded that the best way to detect change in
brecciated ground conditions is “continuous” testing and evaluation. (Tr. 694).
Test hole results are not reported on the geologist’s grading sheets. (Tr.
694). Blasting can loosen rock. Ore goes along the fractures in the rock. (Tr.
695). Fractures operate as a conduit: whatever path permeability for fluids to
move through is where ore can be deposited. (Tr. 695).

Robert Ridings
Redirect

As a
geologist Ridings considered scaling a method of testing the stability of
ground. (Tr. 698). Scalers can definitely spot loose. (Tr. 698).

Ridings
carries a scaling bar with him and, if it appears safe to do so, will himself
scale areas of loose. (Tr. 699). There was nothing uncommon about the fractures
and cracks that he observed on January 21, 2015. (Tr. 699). He did not consider
the typical cracks in brecciated ground at Fletcher mine to constitute adverse
conditions. (Tr. 701).

CONTENTIONS
OF THE PARTIES

The
Secretary argues that the location of the Getman Mechanical Scaler identified
in Citation No. 8680899 was a violation of 30 C.F.R. §57.3201 because the
Mechanical Scaler was located in area that was only 25% bolted with split set
bolts in a 5x5 pattern. The Secretary argues that the bolting in the area of
the fall was inadequate for roof conditions and that the inadequate bolting was
directly related to the failure to thoroughly evaluate and test the roof
conditions.  The Secretary argues that being further removed from the fall zone
or under an area that was thoroughly tested, examined, and then properly bolted
would have protected the scaler operator.

Doe
Run argues that Citation 8680899 should be vacated because an objective
analysis of all the surrounding circumstances, factors, and considerations
establishes that a reasonably prudent person familiar with the mining industry
and protective purposes of the standard would not have recognized the hazardous
condition the standard seeks to prevent, in this case injury from falling
material. Doe Run argues that mechanical scaling is the safest way to bring
down loose material from roof and rib surfaces and that the mechanical scaler
that Mr. Hoodenpyle operated contained many safety features, protecting the scaler
operator from rock falls. Therefore, a reasonably prudent person would have
believed the safety features protected the operator of the mechanical scaler. Doe
Run argues that MSHA inspectors Kennedy and Van Dorn testified they have seen
mechanical scalers operate in this position before and that doing so was not a
violation and that such positioning was normal. Doe Run asserts there was
nothing that should have put Doe Run on notice that either the ground support
or ground conditions in the area were insufficient or hazardous.

The
Secretary argues Doe Run failed to design, install, and maintain ground support
adequate to the mine conditions. In support of Citation No. 8680900 the Secretary
argues that Doe Run fails the reasonably prudent person test. The Secretary
argues that the evidence shown at trial demonstrated that Doe Run failed to
adequately design and install ground control measures at the Fletcher Mine and
that that the measures installed were inadequate for the conditions existing in
the RC3PONE heading. The Secretary argues the fatal roof fall occurred in an
area where 25% of the roof was bolted as direct evidence of the inadequacy of
the ground support for the mine conditions. In support of the argument, the
Secretary states that previous roof falls put the mine on notice of the hazard.
The Secretary argues that conditions dictated roof bolting in the area of the
fall should have been done with either a tighter pattern or resin bolts. The
Secretary argues a reasonably prudent person, familiar with the mining industry
and the protective purpose of the standard, would have recognized the hazardous
conditions that the standard seeks to prevent and would have adjusted the bolting
accordingly.

Doe
Run argues Citation 8680900 should be vacated as it also fails the reasonably
prudent person test. Doe Run argues Citation No. 8680900 should be vacated
because the evidence fails to establish that ground support in the RC3PONE
stope was not properly designed, installed and maintained based on known ground
conditions prior to the ground fall and Doe Run’s mining experience in similar
ground conditions as required by C30 C.F.R. §57.3360. Doe Run also argues that
prior to the date of the accident the Fletcher Mine had never experienced any
unplanned ground falls where split set roof bolts failed in similar ground
conditions. Doe Run argues the geology in the area of the fall does not require
the use of resin bolts or a tighter bolt pattern. Doe Run relies on the
testimony of several witnesses to assert that split set roof bolts adequately
and safely support similar geologic conditions and had done so for decades at
Doe Run mines to include the Fletcher Mine.

The
Secretary argues that Citation Nos. 8680899 and 8680900 were properly
designated “Significant and Substantial” per Section 104(d) (1) of the Mine
Act. In support of the argument, the Secretary asserts that the violations
associated with the Citations were of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard. The Secretary argues that both Citations satisfy the four
step framework of the Mathies test: (1) the violation(s) were
established as a violation of a mandatory safety standard; (2) the likelihood
of the occurrence of the hazard against which a mandatory safety standard is
directed; (3) the gravity of the violation; and (4) whether violation of the
hazard would be reasonably likely to result in injury.

Doe
Run further argues that Citation Nos. 8680899 and 8680900 were improperly
designated as “Significant and Substantial.” In support of this argument Doe
Run argues that the Secretary failed to prove violations of either 30 C.F.R.
§57.3360 or 30 C.F.R. §57.3201. Doe Run argues that if the Secretary is unable
to prove a violation of a mandatory safety standard the Secretary fails the
first step of the revised Mathies test rendering the other three steps
unnecessary. Doe Run argues however, that, even if the Court determines the
Secretary is able to meet its burden in regards to step one of the test,
element two of the test is unmet because the likelihood of this occurrence was
also unlikely for the same reasons.

ANALYSIS

Issue:      Given that
the Mine Act is a strict liability statute and given that a miner was killed
due to the fall of roof material on his scaler due to ground support failure,
were there per se violations of §§ 57.3201 and 57.3360?

Strict Liability

In
their post-hearing briefs neither party devoted much of their briefs as to the
applicability of strict liability to the present controversy. [59]
The Undersigned nonetheless is convinced that this doctrine lies at the very
heart of the matter, playing a decisive role in determining the fact of
violation in cases of accidental roof falls causing death.

The
Federal Mine Act has long been understood to be an act based upon strict
liability. The Commission and Circuit Courts have long held that “an operator
may be liable without fault.” Sewell Coal Co. v. FMSHRC , 686F.2d 1066,
1071 (4 th Cir. 1982). “Because the Mine Act is a strict liability
statute, any violation of the Act or the mandatory safety and health standards
adopted thereto…would be attributable to the mine operator regardless of
whether the mine operator is at fault.” 27 FMSHRC 721, 731 (2005). In Spartan
Mining Co. , 30FMSHRC 699, 706 (Aug. 2008) the Commission rejected
compliance with internal policy as a defense because of the Mine Act’s
strict liability .

Indeed,
the legislative history of the Mine Act confirms the congressional intent that
there should be “liability for violations of the standards against the operator
without regard to fault.” Conf. Rep. No. 761, 91 st Cong., 1 st
Sess. 71, reprinted 1969 U.S. Code Cong. & Ad. News 2503,
2578, 2586.

The
history of American mining horrifically documents why there was such a
desperate need for the legislative imposition of strict liability. For
generations mine operators had denied responsibility for miners’ injuries and
deaths, hiding behind such hoary legal defenses as assumption of the risk. All
too often operators evaded responsibility by concealing or destroying evidence
of accident causation, the explanation of which was their own avariciousness,
recklessness, and gross indifference to miners’ health and safety. [60]

The
long history of American mining shows how with the aiding and abetting company
lawyers, constabulary, and biased judicial donees, mine operators routinely
evaded liability for even the most flagrant misconduct. [61]
American mine workers’ ability to obtain even minimal safety and health
protection and minimal measures of justice were regularly blocked by an enabling
political class, which, at Big Mining bidding, servilely refused to pass any
meaningful regulatory reform. [62]

For
score after score of years, mining state politicians would Pharisaically invoke
the inscrutable nature of God’s will to explain away avoidable accidents. A
recent mining documentary, Blood on the Mountain , cites a particularly
egregious example of such exculpatory theologic mumbo-jumbo. Acting to protect
Pittston Coal Company, which operated the infamous Buffalo Creek Dam, West
Virginia governor Arch Moore tried to suppress his own investigatory committee
report regarding the dam’s lethal design and construction. Lamenting the
continual catastrophes that had plagued his state’s mining industry, Moore
pietistically blubbered: “why do all bad things have to happen to West
Virginia? These are Acts of God (emphasis added) and where he picks to
deliver his message I don’t know.” [63]

This
history, and Congress’ explicit intent, show that without the imposition of
strict liability—the nation’s miners are put at risk. [64]

In
arguing that a reasonably prudent person test should be applied in determining
the fact of violation, both parties appear to rely upon past Commission
holdings in Canon Coal Co. , 9 FMSHRC 667 (Apr. 1987) and Harlan
Cumberland Coal , 20 FMSHRC 1275 (Dec. 1988). ( Respondent’s Post-Hearing
Brief , 42; Secretary’s Post-Hearing Brief , 24). However, a more
recent Commission decision, Jim Walter , 37 FMSHRC 493 (Mar. 2015) raises
a substantial question as to the continuing viability of these precedents. This
is particularly so where, as here, there is an actual accidental rock fall
causing death.

In
the underlying ALJ decision in Jim Walter , 34 FMSHRC 1386 (June
2012)(ALJ), the ALJ was confronted with a factual scenario similar to the
instant controversy. The victim had been killed by a large piece of rock that
had fallen upon him. All or a portion of the fall area had been bolted and
supported. There were no eyewitnesses to the accident and the victim’s body had
only been discovered subsequently. Relying upon Canon and Harlan ,
Judge Weisberger found that the Secretary had failed to establish the existence
of objective signs that existed prior to the roof fall that would have alerted
a reasonably prudent person to install additional roof support beyond which had
been actually provided at the time of accident. 34 FMSHRC at 1393. Accordingly;
Judge Weisberger concluded that the Secretary had failed to establish by the
preponderance of the evidence that § 77.202(a) had been violated.  34
FMSHRC at 1393-1394.

On
appeal the Secretary argued that the ALJ had erred in applying a reasonably
prudent person test. 34 FMSHRC at 494. The Secretary argued that operators are
strictly liable for Mine Act violations and that, as a result, if a roof fails
the roof was (as a matter of law) not supported or otherwise controlled to
protect persons from hazards related to roof falls. (37 FMSHRC at 494). Thus,
the Secretary contended that, under the plain meaning of § 75.202(a) [65] ,
a roof fall demonstrated a per se violation of the standard. [66]
(37 FMSHRC at 495).

Given
“the stark and tragic facts” presented, the Commission indicated that it was
not necessary to decide whether to adopt one or the other test in all
roof fall cases involving allegations of unsupported roof. 37 FMSHRC at 495. However,
the majority opinion went on to state the following:

This leaves the
issue of whether the operator failed to support the roof “to protect persons
from hazards related to falls.” When Inspector Wilcox arrived on the scene,
Jerry McKinney was lying fatally injured beneath a large roof fall. Accordingly,
the only conclusion to be reached is that the roof was not supported to protect
the miner from a roof fall. As previously mentioned, the Mine Act is a
strict liability statute, and this fatality resulting from a fall of roof
material where persons work or travel unquestionably demonstrates a violation
of section 75.202(a). The roof fall that pinned McKinney under a piece of rock,
resulting in his death, amply demonstrates that the roof was not supported in a
manner to protect him from hazards related to falls.

37 FMSHRC at 496
(emphasis added).

Further,
in his concurring decision, Commissioner Cohen specifically addressed the
majority’s refusal to follow the Canon precedent, concluding that “the
disposition in this proceeding effectively overrules the Commission’s decision
in Canon Coal .” Id. at 498 (Cohen Concurring). [67]
Commissioner Cohen noted that the prudent person analysis in Canon Coal
did not reflect an appropriate interpretation of the requirements of the safety
standard to protect miners and the strict liability of the Mine Act. 37 FMSHRC
at 498. “A roof that falls and kills a miner was obviously not supported ‘to
protect persons from hazards related to falls of the roof.’” Id .

The
“stark and tragic facts” of this miner’s death are, if anything, more
compelling than in Jim Walter . The roof fall that crushed John
Hoodenpyle at Fletcher Mine was far more massive than the rock fall that pinned
and killed Jerry McKinney at No. 7 Mine. [68]
It was in fact so massive that it completely squashed the cab of Hoodenpyle’s
scaler, despite the cab’s reinforced canopy. The sound of the roof fall was so
thunderous that it could be heard in other parts of the mine. ( see Tr.
514). The roof fall’s force was so tremendous that even the bolted ground above
the scaler cab collapsed.

The
ALJ finds that the “stark and tragic” facts in this case require this Court to
follow the Commission’s rationale in Jim Walter rejecting Canon
Coal’s and Harlan Cumberland’s prudent person test in the limited
circumstances where there is an accidental roof fall causing death. In such
limited circumstances, the fact of the fatal accident itself, by reason of
strict liability, demonstrates a per se violation of the safety
standard.

In
reaching this conclusion the ALJ notes that the mandatory safety standards at
issue are essentially identical to § 75.202(a) in that the plain meaning of
both standards is there should be adequate ground control to protect miners
from falling materials.

The
operative language in § 53.3201 is that “scaling shall be performed from a
location which will not expose persons to injury from falling material…” “The
stark and tragic facts” of this case clearly establish that Mr. Hoodenpyle,
while performing his scaling duties, was not in a “location that prevented his
exposure to injury” and indeed death. Likewise, § 57.3360 provides in pertinent
part that the ground “support system be designed, installed, and maintained to
control ground in places where people work.” The facts establishing a massive
unplanned and uncontrolled roof fall in the area where Hoodenpyle worked and
others travelled again demonstrate a clear per se violation of the
mandatory safety standard.

In
applying a strict liability test to the within controversy, this Court
intentionally declines to address whether the fact of violation as to either
standard could be established by utilizing a prudent miner test. The questions
as to whether there were observable signs prior to the accident, whether there
were similar unplanned ground falls, whether there were sufficient number, type
and patterns of bolts used, and whether the accident was caused by geologic,
static, and/or dynamic forces have been all zealously argued by the parties at
hearing and in their respective briefs. Suffice it to say that, given the
plethora of questions raised and unresolved, a prudent person test would have
made the Secretary’s case as to fact of violation much more problematic.

But
of course this is exactly the point. When there is a death of a miner in a
catastrophic roof fall, a mine operator cannot and should not escape liability
on the fatalistic bases of “just bad luck” or “Act of God” or “accidents
happen” or for that matter good faith conduct and unforseeability. A mine
operator, in such circumstances, must be held liable under the Mine Act’s
strict liability. [69]

Accordingly,
this Court finds that there were per se violations of §§ 57.3201 and
57.3360.

Issue:      Based upon
the particular facts surrounding the violations of §§ 57.3201 and 57.3360 did
there exist a reasonable likelihood of the occurrence of the hazard against
which the mandatory safety standards were directed?

The
test for whether a violation was Significant and Substantial has been modified
recently by MSHA v. Newtown Energy, Inc. , 38 FMSHRC 2033, 2036-2040 (Aug.,
2016).

Under the
Commission's newly formulated  Newtown  test, the four steps of
the S&S analysis require determinations of whether:

(1) there has
been a violation of a mandatory safety standard;

(2) based upon
the particular facts surrounding the violation, there exists a reasonable likelihood
of the occurrence of the hazard against which the mandatory safety standard is
directed;

(3) based upon
the particular facts surrounding the violation, the occurrence of that hazard
would be reasonably likely to result in an injury; and

(4) any resultant
injury would be reasonably likely to be reasonably serious.

MSHA v. ICG Illinois,
LLC ,
38 FMSHRC 2473, 2483 (Oct. 2016) (Althen Dissenting).

It
has already been found, supra , that there was a violation of a mandatory
safety standard. The distinct safety hazards against which §§ 57.3201 and
57.3360 are directed are essentially similar: the dangers that materials might
fall upon miners scaling, working, or travelling in areas with insufficient
ground support.

However,
after carefully reviewing the total record, the ALJ is not persuaded that there
were compelling indicia surrounding the instant violations that would have
suggested the reasonable likelihood of material falling upon Hoodenpyle while
he performed scaling in the RC3PO northeast section. [70]

Geologic
Features of Viburnum Trend, Fletcher Mine and RC3PO Northeast Stope

This
Court accepts the Secretary’s general contention that when dramatic changes in
rock are encountered there should be closer examination and testing. However,
the Secretary failed to carry his burden of showing that Fletcher Mine in
general, or the RC3PO northeast stope in particular, had or displayed geologic
features that would have established the existence of a reasonable likelihood
of a rock fall that would have injured Hoodenpyle in his scaler cab.

At
hearing Vadnal testified that he had witnessed dramatic changes in the fall
area which should have alerted miners to a potential roof fall hazard. (Tr.
165-168). However, the Secretary’s own witness, MSHA Inspector Jeremy Kennedy
contradicted such testimony, testifying that he had travelled through the area
shortly before the accident and had seen nothing to alert him that a
fall was imminent. [71]

This
Court found Vadnal to be an honest and forthright individual. However, Vadnal
had limited experience in dealing with brecciated ground and lead mining in
general. He had no firsthand experience with Doe Run operations or Fletcher
Mine ground conditions prior to the accident. His visual observations
were limited to the time period subsequent to the accident. He lacked an
actual degree in engineering. (Tr. 209-211). Further calling Vadnal’s testimony
into question were various Respondent witnesses who stated they had seen no
outward signs of possible hazardous roof conditions either prior to or after
the accident. ( See e.g Tr. 447.) All of these factors diminished the
probative weight that this Court accorded Vadnal’s testimony.

This
Court also observes that the photographic evidence offered by the Secretary to
show external changes and disruptions of rock indicating the potential
likelihood for a roof fall was problematic. The Respondent’s witnesses all
denied that the Secretary’s pictures revealed obvious stigmata of dramatic
change or signs indicating hazardous rock conditions. This Court could not
discern any distinctly different geologic features in the scenes depicted.

Contrary
to the Secretary’s assertions otherwise, the mine geologist, George Moellering
testified that the geological conditions in the RC3PO northeast stope were
essentially similar to other parts of the Fletcher Mine as well as other parts
of the Viburnum Trend as a whole. (Tr. 585). There was nothing unusual about
mining in brecciated ground. Such mining had been going on since the late 1960s
at Fletcher Mine. (Tr. 595, 607).

The
ALJ recognizes that Respondent’s witnesses may have offered some self-serving
testimony in their assertions that there were no outward signs indicating the
existence of hazardous roof conditions. Nonetheless, this Court was not persuaded
by the Secretary that, at the time of accident, there were any geologic
features of the Viburnum Trend, of Fletcher Mine as a whole, or rock changes in
the RC3PO northeast fall area in particular, which would have indicated that
there existed the reasonable likelihood of roof material falling upon
Hoodenpyle’s scaler cab.

Position of
Hoodenpyle and the Getman S330 Mechanical Scaler at Time of Accident

At
hearing and in his brief(s), Respondent essentially contends that the
“prospective danger” (hazard) of falling materials from inadequately supported
ground injuring a miner did not have an increased likelihood because of the
position of Hoodenpyle inside his Getman scaler at the specific site of the
accident.

None
of the facts surrounding the violations associated with the position of
Hoodenpyle and his scaler would have created the reasonable likelihood of
falling material injuring the miner. Hoodenpyle had been positioned in his cab 60
feet from the face and his cab was under bolted ground—a place that historical
practice had shown to be protected and safe. (Tr. 111.)

The
Getman S330 mechanical scaler which Hoodenpyle operated had many safety
features, including a stable chassis, telescopic boom, and ROPS/FOPS operator’s
compartment, all of which would have decreased the reasonable likelihood of an
injury-causing rock fall. Both the locations of the scaler in general and
scaler cab in particular would not in any significant way increase the
likelihood of the occurrence of the hazards against which the mandatory safety
standards were directed. No citations had ever been issued in the past to a
miner for positioning his scaler in such a manner as Hoodenpyle nor had there
been any instances of a roof fall crushing a scaler cab.

Thus,
in considering Newton’s “particular facts surrounding the violation”
component of Mathies Step 2, this Court found nothing about the
positioning of the scaler 60 feet from the face or the locating of the scaler
cab beneath the last two rows of bolted ground or the reinforced features of
the canopy/cab which would have contributed to the reasonable likelihood of an
injurious roof fall onto Hoodenpyle. Furthermore, I find the negligence in both
of these citations to be Low. [72]

Type of
Bolts and Patterns of Bolt

The Secretary
essentially contends that if resin bolts had been utilized in place of split
set bolts and if a tighter bolt pattern had been utilized, the roof in RC3PO
northeast may not have collapsed. ( see inter alia Secretary’s brief at
21). Given the total record, this Court finds said hypothesis to be
transcendentally speculative. [73]
However, in arguing such the Secretary is also in essence contending that the
type of bolts used and pattern of bolting utilized in the fall area were
additional particular facts surrounding the violations that created a
reasonable likelihood of occurrence of falling materials. This contention is
also not supported by the total record.

This
Court accepts the arguments of Respondent and credits Respondent’s witness
testimony that split set bolts in typical 5 foot by 5 foot patterns had been
successfully and safely used throughout Doe Run and at Fletcher Mine and did
not in any way constitute inadequate ground control support or techniques.

This
of course is not to say that Respondent’s witnesses were altogether forthcoming
and completely believable in their assertions about the interchangeability of
split sets and resin bolts at Doe Run. Beside the availability of appropriate
bolting machines, this Court suspects that the usage of split sets was also
motivated by cost and time factors and the lack of bolters possessing
sufficient expertise to efficiently install resin bolts.

This
Court also agrees with the Secretary’s contentions that the use of bonuses to
reward productivity may create the potential for unsafe work performance and
resulting unsafe conditions. However, this Court found nothing in the evidence
presented that established that Fletcher Mine personnel had performed their
duties in an unduly speedy manner in the RC3PO northeast stope so as to
endanger Mr. Hoodenpyle.

Prior Roof Falls

Although
presenting some hearsay evidence about prior roof falls, the Secretary was
unable to locate and examine any actual fall site so as to compare the area and
circumstances of such with the accident site at issue. Inspector Kennedy
testified that he was unaware of any falls prior to January 2015, which
involved the failure of split sets in brecciated ground. (Tr. 91). Vadnal
similarly found no reportable ground falls at Fletcher Mine in the five years
prior to the instant fall. (Tr. 255). Van Dorn confirmed this lack of prior
roof falls, and argued that such should be considered a mitigating factor. (Tr.
395).

There
was testimony concerning a roof fall in the area in 1998 that led to a fatality.
(Tr. 313-314, 632). The Secretary carries the burden of proof, and this Court
believes that MSHA investigators were somewhat derelict in not pursuing a more
robust investigation into this area. The operator revised its procedures after
the 1998 fall, including providing that workplace examinations would start out
60 feet from the face, using test holes, and having surveyors scaling the area
before work began. (Tr. 632). However, there is no indication that MSHA
inspectors focused on investigating the area in any additional manner.

The
parties’ explanations for the actual force behind the ground fall that killed
Mr. Hoodenpyle ranged from the simplistic—gravity—to the speculative—dynamic
load fulcrum effect. Exact causation need not be proved by the Secretary. However,
the etiological mystery at the heart of this accident impinges upon the issue
of whether the Secretary has shown sufficient particular facts surrounding the
violations which indicated the existence of a reasonable likelihood of
occurrence of a roof fall.

Other Evidence

It
is also noted that private counsel for the estate of deceased was present at
hearing. In considering the particular facts surrounding the violations the ALJ
noted no evidence adduced that the specific bolts and scaler involved in the
accident had a design or manufacturing defect which would have contributed to
the likelihood of a hazardous ground fall. The ALJ does note however that if
the scaler boom or arm in question had been 15-20 feet longer Hoodenpyle’s
death may have been avoided.

In
view of the foregoing the Secretary has failed to carry its burden of proving
the second prong of Mathies as set forth by the Commission in Newton
and consequently neither of the within violations are found to be S&S in
nature.

Issue:     Did the
Secretary’s Amendment of Citation No. 8680902 Prejudice Respondent?

On the
day before hearing, on May 22, 2017, the Secretary filed a Motion to Amend
Citation No. 8680902 from a violation of 30 C.F.R. §48.7 to a violation of 30
C.F.R. §48.9. The original cited training standard requires:

Miners assigned
to new work tasks as mobile equipment operators, drilling machine operators,
haulage and conveyor systems operators, roof and ground control machine operators,
and those in blasting operations shall not perform new work tasks in these categories
until training prescribed in this paragraph and paragraph (b) of this section has
been completed. This training shall not be required for miners who have been trained
and who have demonstrated safe operating procedures for such new work tasks
within 12 months preceding assignment. This training shall also not be required
for miners who have performed the new work tasks and who have demonstrated safe
operating procedures for such new work tasks within 12 months preceding
assignment.

30 C.F.R. §48.7.

The amended
standard requires:

Upon a miner's
completion of each MSHA approved training program, the operator shall record
and certify on MSHA Form 5000-23 that the miner has received the specified
training. A copy of the training certificate shall be given to the miner at the
completion of the training. The training certificates for each miner shall be
available at the mine site for inspection by MSHA and for examination by the
miners, the miner's representative, and State inspection agencies. When a miner
leaves the operator's employ, the miner shall be entitled to a copy of his training
certificates.

30 C.F.R. §48.9.

The
Secretary argues that its amendment to Citation No. 8680902 did not prejudice
Doe Run because the facts and circumstances that support the violation are
identical under either standard, and that no new defense or additional
witnesses were required. It further argues that Doe Run was permitted to cross
examine Inspector Van Dorn at the hearing on any issue related to the
violation. The Secretary argues that its amendment to the Citation on the eve
of trial was not filed in bad faith or for the purpose of delay.

The
Respondent argues that there was no excuse for the Secretary’s late modification
of the Citation, and that it will suffer recognizable prejudice as a result of
the proposed modification. Specifically, Respondent argues that its
"preparation of witnesses and documents would have been considerably
different if the undersigned would have been informed of the modification in
advance of trial,” and provides specific examples of such. Resp.
Post-Hearing Brief , 64.

The
Commission has held that a trial court judge “possesses considerable discretion
in resolving motions seeking leave to amend pleadings.” Cyprus Empire ,
12 FMSHRC 911, 916 (May, 1990). Such amendments are to be “liberally granted,”
unless the moving party has acted in bad faith or for purposes of delay, or
where the other party is prejudiced in preparing its defenses. Wyoming Fuel Company. 14 FMSHRC 1282,
1289-90 (August, 1992 ); Brannon v. Panther

Mining. LLC, 31 FMSHRC
1277, 1279 (2009) (ALJ).

At
hearing, the parties presented brief arguments for their respective positions
regarding the amendment. This Court provisionally granted the motion to amend
in order to accept evidence relating to the Citation. (Tr. 13). However, the
Court made the provisional nature of the grant explicit, and invited further
briefing into the issue, stating, “So that although I’m granting the motion to
amend, I may ultimately find there is prejudice.” Id. Upon review of
both parties’ briefs and arguments, this Court finds that the Secretary unduly
delayed its amendment and that as a result the Respondent suffered prejudice.

In
the instant matter, Inspector Van Dorn stated in depositions on October 12,
2016, that the Citation was issued under the wrong standard. Resp.
Post-Hearing Brief , Ex-1. Furthermore, in preparation for the hearing, the
parties discussed the Citation, and the Secretary “explicitly indicated to the
[Respondent] that MSHA was electing to take the original allegations (i.e. that
no training was conducted) to trial.” Resp. Post-Hearing Brief , 64. Despite
knowing that its inspector believed the Citation was issued under the wrong
standard over 7 months prior to the hearing, the Secretary waited until the day
before hearing to file its motion (and for the day of hearing to present it to
the Court). The only excuse that the Secretary has provided for its decision to
wait until hearing to amend the Citation is that the case had been passed along
through several solicitors. (Tr. 11-12).

The
Respondent has stated that its preparation for trial was based on the
Secretary’s repeated assurances that the Citation would not be amended. Furthermore,
the Respondent states that as a result of the late modification,

Doe Run was
prevented from gathering and presenting evidence of MSHA Form 5000-23s
documenting new miner training, annual refresher training and task training
where workplace examinations had been trained on prior to the approval of the
October 2014 training plan. Such evidence is highly probative to the issue of
whether Doe Run was in violation of 30 C.F.R. §48.9 under the Secretary’s
interpretation that it be applied retroactively.

Resp.
Post-Hearing Brief ,

64. This Court is in substantial agreement with the Respondent that the
    Secretary’s delay in amending the Citation was unreasonable, and that the
    request to amend on the afternoon before hearing prejudiced the Respondent. Therefore,
    Citation No. 8680902 is Vacated.

PENALTIES

The principles governing the authority
of the Commission’s administrative law judges to assess civil penalties de novo
for violations of the Mine Act are well established. Section 110(i) of the Mine
Act delegates to the Commission and its judges the authority to assess all
civil penalties provided in the Act. 30 U.S.C. 820(i). The Act delegates the
duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus,
when an operator notifies the Secretary that it intends to challenge a penalty,
the Secretary petitions the Commission to assess the penalty. 29 C.F.R.
§2700.28. The Act requires that in assessing civil monetary penalties, the
Commission and its judges shall consider the six statutory penalty criteria:

[1] the
operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after
notification of a violation

30 U.S.C. §
820(i).

The
Secretary has proposed penalties of $5,503.00 for Citation No. 8680899,
$18,271.00 for Citation No. 8680900, and $745.00 for Citation No. 8680902. The
Secretary has submitted evidence that the operator has a significant history of
previous violations, and that it was a large operator. Furthermore, the
assessed penalties would not affect the operator’s ability to continue in
business. Citation No. 8680899 was originally designated as “Moderate”
negligence, and Citation No. 8680900 was originally designated as “High”
negligence. Both citations were designated as “Low” negligence and Non-S&S,
supra . The gravity of the citations was properly designated as “Fatal”
and “Occurred,” as a miner died as the result of the violations. The Citations
were modified 13 and 14 times, respectively, over eight months, which
illustrated a limited showing of good faith attempts at compliance.
Accordingly, the penalty amount for Citation No. 8680899 is modified to
$3,100.00, the penalty amount for Citation No. 8680900 is modified to $10,300.00,
and Citation No. 8680902 is Vacated.

ORDER

The
Respondent, Doe Run Company, is ORDERED to pay the Secretary of Labor
the sum of $13,400.00 within 30 days of this order. [74]

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

Susan J. Willer,
Esq., U.S. Dept. of Labor, Two Pershing Square Building, 2300 Main St., Suite
1020, Kansas City, MO 64108

Ryan D. Seelke,
Esq., The Doe Run Co., Fletcher Mine/Mill, 230 County Rd. 849, Centerville, MO
63633

[1] The Joint
Stipulations submitted mistakenly listed the Citation Number as Citation No.
86870900.

[2] The last
sentence to this stipulation was added by hand.

[3] He had also
earned a LPN certificate after completing one year of college.

[4] Room and pillar
mining is a process whereby the miners advance a drift and, while advancing
through the ore body, take slab rounds to both sides and create an
intersection. If the ore body is wide enough, “you will go ahead and turn and
make a pillar.” (Tr. 36).

[5] A mechanical
scaler is a piece of equipment that is used to remove unconsolidated material from
the roof and ribs of the mine. (Tr. 43).

[6] Intersections
are the areas between the rooms and pillars. (Tr. 52).

[7] Bolts are
pieces of steel inserted into holes drilled into the mine back (roof) to
stabilize the back from rib to rib. (Tr. 53).

[8] Split sets are
faster and cheaper to use than resin bolts. (Tr. 55). Resin bolts, which have
to be spun into place, have a stronger capacity. (Tr. 55).

[9] Kennedy noted
that, though the scaler’s protective systems had not prevented a fatality, the
victim’s body had been recovered “intact.” (Tr. 78). The victim had not
sustained certain injuries that one would expect to see from a catastrophic
failure. (Tr. 78).

[10] See also
GX-11 for Vadnal’s resume. He had received a bachelor of science in geology in
1975 and later attained a Master’s Degree in 2007-2008 in safety with an
emphasis in mining. (Tr. 140-141). Vadnal had been hired by MSHA in 2004,
becoming an authorized mine safety inspector. (GX-11). He had gotten his job
with the technical support roof control division in January 2007. (Tr. 147). As
a roof control specialist, he had reviewed ground control and roof control
plans and had investigated approximately 100 roof fall accidents. (Tr.
147-148). Prior to being hired by MSHA, Vadnal had worked for approximately 30
years in the mining industry. (GX-11). He had worked as a geologist for
environmental engineering firms. (Tr. 142). He had worked in various positions
for Arch Coal, including vice president, geology and exploration, manager of
safety and administration, director of geology and exploration, and senior
geologist. (Tr. 141-145; see also GX-11).  

[11] Vadnal found no
evidence that the canopy of the scaler had been compromised.

[12] A test drill
hole should extend minimally a foot longer than the longest bolt hole.

[13] Roof bolt
operators are not supervisors. (Tr. 189).

[14] In areas with
stable back conditions, bolts were to be kept within 100 feet of the work face.
(GX-8, p. 6).

[15] Vadnal
estimated that 75% to 80% of the victim’s scaler was outside of the bolted area.
(Tr. 205; GX-13, p. 5).

[16] At hearing
Respondent’s counsel objected to this Court’s acceptance of Vadnal as an expert
witness based in part upon Vadnal’s lack of experience as to brecciated ground
and the usage of split set bolts. (Tr. 149, 152).

[17] Willow Lake had
elected not to continue mining in its brecciated areas as opposed to Doe Run
which dealt with such ground conditions regularly. (Tr. 213).

[18] Vadnal,
however, agreed that not all change indicates the existence of adverse ground
conditions. Change can go from bad to good. (Tr. 237-238).

[19] Vadnal
estimated that resin bolts were three times stronger than friction stabilizers.
(Tr. 250).

[20] See Tr. 250-251
for Vadnal’s “in my head” calculations supporting his opinions.

[21] Vadnal
estimated the closest surface hole to be hundreds of feet from the fall site. (Tr.
256).

[22] See Tr.
280-284 for full curriculum vitae. Van Dorn had worked as an MSHA inspector in
various field offices. (Tr. 281). He had earned associate degrees in general
business and applied safety sciences. (Tr. 282). He had inspected Doe Run mines
in the past but not Fletcher Mine. (Tr. 282). Prior to coming to MSHA, he had
worked in underground limestone mines for nine years, including jobs as a
scaler and safety representative. (Tr. 283).

[23] Van Dorn had
noticed two other areas exhibiting shaley different colors on his way to the
roof fall site. (Tr. 289-290).

[24] Multiple blasts
are required to create intersections, creating vibrations through the rocks
that can shake rock loose. (Tr. 294-295).

[25] This type of
training is called “pass training” or on-the-job training. (Tr. 296).

[26] See also
GX-13, p. 3 for map location of area between pillars 7507-7517.

[27] Friction
stabilizers are split set bolts. (Tr. 304).

[28] See also
GX-8, p. 5, where yield is defined as the maximum anchorage capacity of a bolt.
Testing by the roof bolt manufacturer disclosed six foot long, 1 ½ inch
diameter friction stabilizers yielded at a range of 6-8 tons of force; six foot
long, fully grouted, No. 6 headed-rebar rock bolts yielded at 14 tons; six foot
long, fully grouted, No. 7 headed-rebar rock bolts yielded at 20 tons.

[29] The tech
support group supplied the primary opinion. (Tr. 306).

[30] Fatalgrams are
accident reports that can be found at MSHA’s website (www.MSHA.gov). They describe
the results of fatality investigations and make recommendations to miners and
mine operators so that similar such fatal accidents may not reoccur.

[31] See GX-3 for
photograph of scaler similar to the one involved in miner’s death. (Tr. 321).

[32] Such included
the scaling and bolting of the area. (GX-1, pp. 2-13).

[33] Van Dorn’s
rationale for such is as follows—“the operator, the foreman of the mine at that
time, wasn’t in the area. He didn’t know that this was going to happen. And I
just put him at moderate because high says they knew or should have known.” (Tr.
325).

[34] There were no
104(d) citations issued nor were there any special assessment penalties
proposed. (Tr. 327).

[35] See same
transcript pages for back and forth as to whether this question was limited to
specific intersection of accident.

[36] At trial
counsel for the Secretary stipulated that the actual filing date was on Monday
before the commencement of hearing on Tuesday, May 23, 2017.

[37] Resin bolting
(Tr. 418).

[38] McNail first
started working in mining in 1994. (Tr. 420). In 1998 he earned a Bachelor of
Science in Mine Engineering with emphasis in explosives engineering. (Tr. 421).
In 2012 he earned a Master’s in Mine Engineering with a Minor in Explosive
Engineering. (Tr. 421).

[39] A vug is a small
or medium sized cavity in rock. (Tr. 433).

[40] As discussed
within, this Court found this answer to be less than fully credible given inter
alia McNail’s description of his job duties: “we look at financials and try
to interpret those and control cost according to budget.” (Tr. 420).

[41] A roof man
operates a mechanical scaler, cleaning up headings to ensure safety. (Tr. 481).

[42] The tooth of a
Getman is in front of the boom on a swivel head. (Tr. 485). The swivel head had
two teeth and could be pulled back and forth. (Tr. 484; RX-C).

[43] Welch had
approximately 25 years’ experience in underground mining, working for two other
mines in addition to Doe Run. His jobs included truck driver, loader operator,
mechanical scaler, grade operator, shift extra and development miner. (Tr.
505-506).

[44] Hoodenpyle had
been hired by Doe Run in 2011. His acknowledgements of having received ground
control training were dated February 2011, February 2012, February 2013, and
February 2014. (Tr. 524).

[45] The policy
provided that all employees upon entering an area perform workplace
examinations. They must start at least 60 feet from the face and scale their
way into whatever heading they’re working in. (Tr. 530).

[46] Hanning
graduated in 1988, receiving a Bachelor of Science in Engineering. (Tr. 548). He
began working for Ascaro at the Sweet Mine in 1988. (Tr. 548). He had worked in
mining as a surveyor, training level supervisor, mine supervisor, general mine
supervisor, and mine superintendent. (Tr. 548-549).

[47] RX-8 contains Moellering’s
complete resume. He earned a B.S. in economic geology in 1988. From 1989 to
2004 he worked as a mine geologist for Doe Run, working initially as a grade
control geologist and then as a mine geologist. (Tr. 574-575). He then worked
for eight years with Doe Run as chief mine geologist, overseeing 10 mine
geologists, a couple grade control geologists, and an underground drill
foreman. (Tr. 575). His duties included grading faces with breccia in them,
locating new ones, controlling the dilution, mine planning,
budgeting—“everything…to do with mine geology, including surface drilling.” (Tr.
575-576).

[48] Dilution is
rock with no ore in it. The goal is keep as much of such out of the system as
possible. (Tr. 577).

[49] See
Moellering’s full testimony at Tr. 579-583 for more complete description of
geological process leading to formation of Viburnum Trend and its mining
history.

[50] See Tr.
585-587 for more detailed technical description of breccia formation.

[51] Gray silt is
originally deposited as limestone, basically a lime mud stone; it’s
predominantly dolomite and generally very thick bedded. (Tr. 594).

[52] See RX-K
for full resume and Tr. 621-629.

[53] Jack legging is
when a miner uses an air-operated drill by hand while drilling out the back. (Tr.
631).

[54] Proper
installation in shale backs might require tightening the spacing to 4 feet by 4
feet, 3 feet by 3 feet, or even 2 feet by 2 feet patterns. (Tr. 642-643).

[55] There are no
bonuses for safety alone. (Tr. 654).

[56] See Tr.
663-664 for more detailed answer.

[57] See Tr.
669-670 for full answers.

[58] See Tr. 677-678
for detailed description for meaning of markings on RX-R.

[59] This is so
despite this Court’s explicit request to do so. ( see, inter alia,
Hearing transcript at pp. 708-711, Secretary’s original brief at p. 20, and
Respondent’s brief at pp. 35-37).

[60] Donald
Blankenship’s malevolent shenanigans at Upper Big Branch is but a recent
example of such.

[61] This
observation should not be construed to imply that present Respondent has in any
way acted reprehensibly.

[62] In 1968
President Nixon eloquently described the necessity for new Federal mine safety
legislation:

The workers in the coal
mining industry and their families have too long endured the constant threat
and often sudden reality of disaster, disease, and death. This great industry
has strengthened our Nation with raw material of power. But it has also
frequently saddened out Nation with news of crippled men, grieving widows, and
fatherless children.

Death in the mines can be as
sudden as an explosion or a collapse of a roof and ribs, or it comes
insidiously from pneumoconiosis or black lung disease. When a miner leaves his
home for work, he and his family must live with the unspoken but always present
fear that before the working day is over, he may be crushed or burned to death
or suffocated. This acceptance of the possibility of death in the mines has
become almost as much a part of the job as the tools and the tunnels.

The time has come to replace
this fatalism with hope by substituting action for words. Catastrophes in the
coal mines are not inevitable. They can be prevented, and they must be
prevented.

Special Message to the Cong. on Coal Mine Safety, Pub.
Papers no. 96 at 177-78 (Mar. 3, 1969).

[63] Moore was later
convicted of widespread corruption and sentenced to jail in 1990.

[64] This is
especially so when roof fall accidents are at issue. Such accidents have been
and remain the leading cause of miner fatality. See , inter alia ,
July 6, 2017 Department of Labor news release documenting that roof falls since
2013 had led to the deaths of five continuous mining machine operators and the
injury of 83 other operators; September 8, 2017 “Fatalgram” reporting death of
62 year old section foreman killed in West Virginia mine by a 3 foot by 2 foot
rock fall between roof bolts.

[65] § 75.202(a)
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 the roof…”

[66] In the absence
of a roof fall the Secretary would retain the reasonably prudent person test to
determine the cited standard had been violated.

[67] The majority in
footnote 7 of its opinion stated as follows:

We recognize
that the decision in Canon Coal Co. , 9 FMSHRC 667 (Apr. 1987), was
reached in a factual context similar to that in the present case. However, in
light of the determination set forth immediately above, we decline to follow
the Canon decision.

37 FMSHRC at
497, note 7.

[68] As noted
within, the roof fall at Fletcher Mine measured 55 feet by 20 feet by 6 feet.
Tr. 73. The rock fall in Jim Walter was 83 inches by 43 inches by 7
inches. 34 FMSHRC at 1391.

[69] To paraphrase
Sam Spade’s lines to Brigid O’Shaughnessy in The Maltese Falcon : “When a
miner is killed, it’s bad business to let the operator get away with it…bad all
around, bad for every miner everywhere”

[70] At hearing this
Court requested that the parties address the issue of whether the two ground
control violations met Newton’s revised two-part Mathies Step 2
test. In his brief, Respondent’s counsel primarily focused upon his contentions
that step one of Mathies was not met in that there were no actual
violations of either safety standard. However, Respondent did argue, in the
alternative, that for all the reasons indicating there was no violation, step
two was not met because the “likelihood of occurrence was unlikely.” ( see
also Footnote 4 of Respondent’s brief, p. 36).

[71] As trier of
fact this Court has the duty to decide which evidence presented by either party
is more credible or more persuasive. However, the Secretary does bear the
burden of proof. When it presents testimony that is inherently contradictory,
the Secretary places the Court in a position that might involve improper
speculation. See eg. Commonwealth v. Farquharson , 467 Pa. 50, 354
A.2d 545 (1976), wherein the Pennsylvania Supreme Court held that where the
Commonwealth presented evidence that was so contradictory in nature that any
verdict based thereon would be pure conjecture, a jury would not be permitted
to return such a verdict.

[72] It should be
noted that the Secretary’s argument for increased negligence was lacking. Van
Dorn’s rationale for such is as follows—“the operator, the foreman of the mine
at that time, wasn’t in the area. He didn’t know that this was going to happen.
And I just put him at moderate because high says they knew or should have
known.” (Tr. 325).

[73] This Court does
however adopt that as a general premise of ground support control, the greater
the number of resin bolts used and the tighter the spacing, the lesser the
likelihood of a roof fall.

[74] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390