Tennessee Chemical, Inc.

Plain-English summary

Tennessee Chemical operated the Cherokee underground copper mine in Tennessee. A rock fall in an unbolted area killed development driller Steve Dillard and permanently injured Joshua Waters, and MSHA cited the operator for failing to provide ground support required by its operating experience. The Commission held that the prior fatality, recent adverse ground conditions, warnings, and failures in the mine's ground-control system were relevant evidence, and affirmed the violation and the $7,500 civil penalty. The Commission rejected the operator's arguments that considering the earlier fatality was unfair or amounted to double jeopardy.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.3-20 and 57.3-22; current provision discussed at 30 C.F.R. § 57.3360
• Outcome: The Commission affirmed the ground-support violation and the $7,500 civil penalty.
• Key point: A mine's operating experience includes relevant prior conditions and incidents that show when ground support is needed, even when no earlier citation was issued.

Full text (FMSHRC public release)

CCASE:
MSHA V. TENNESSEE CHEMICAL
DDATE:
19890530
TTEXT:

      FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
            WASHINGTON, D.C.
             May 30, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 v.               Docket No. SE 85-63-M

TENNESSEE CHEMICAL, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

              DECISION

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq (1982)
("Mine Act" or "Act"), Commission Administrative Law Judge
William Fauver concluded that Tennessee Chemical Company ("Tennessee
Chemical" or "operator") violated 30 C.F.R. $ 57.3-20 (1984), a
standard addressing the use of ground support in underground metal
and nonmetal mines. We granted Tennessee Chemical's petition for
discretionary review. On the bases that follow, we affirm.

Tennessee Chemical operates an underground copper mine near

Copperhill, Tennessee (the "Cherokee Mine") employing approximately
200 miners, working three eight-hour shifts per day, seven days a
week. Copper and iron sulfide ore are mined using the sublevel
stopping method. This case arose as a result of a fall of ground
in a development tunnel. Development work (i.e., excavating tunnels
for haulageways and travelways) was performed by crews who drilled
blast holes into the tunnel face and back, 1/ set charges, blasted
the rock, scaled the back, and removed the rock from

Page 2

l/ "Back", defined as "[t]he roof or upper part in any underground
mining cavity" is generally considered the metal/nonmetal counterpart
to the term "roof" in coal mines. "Fall of ground" or "rockfall"
refer to "[r]ock falling from the roof into a mine opening."
Dictionary of Mining, Mineral, and Related Terms 70, 410, 934 (1968).

Page 3

~784
the blast area. This development cycle would then be repeated.
The crews were paid an incentive rate based on the number of feet
they advanced the tunnel. The drilling was performed with the use
of a three-boom pneumatic drill described as a "Jumbo." The holes
were drilled and blasted on close centers in the back to provide a
"smooth wall" that extended about 20 feet from the face. A "smooth
wall" is a lip or brow intentionally left in the back after an
explosion. Rock bolts were installed in the back on an "as needed"
basis. Each development crew, working under the supervision of a
development foreman, was to examine and scale the back in its own
work places and to bolt, unless a large area needed bolting in which
case a separate bolting crew would perform that work.

Shortly before September 14, 1984, the development drift

involved in this case (referred to as the 14 N 33) had been down
for eight shifts because of adverse ground conditions. Rock bolts
were installed up to the edge of the smooth wall and this work was
completed on September 13. The bolter who performed this work,
Mark Richards, installed an extra row of bolts at one place because he
heard popping noises in the back and saw small bits of rock falling
from it. Richards also bolted an area around a small bore hole in the
drift, after Gary Williams, general mine foreman, ordered that it be
bolted due to dangerous ground conditions in the area.

On September 14, 1984, Steve Dillard and Joshua Waters,

development drillers, began working a shift that started at 3:00 p.m.
They were working with Frank Wright, development loader operator, in
the 14 N 33 drift, where they were tunneling a 16 by 18 foot opening
to be used as a truck haulage road. The development foreman for their
shift was Cleaston Morrow.

When Dillard, Waters, and Wright arrived at the 14 N 33 drift
with Hayden Stiles, equipment operator, they found that the heading
had to be "mucked out," that is previously blasted rock left by the
day shift development crew had to be removed. After blasting, it was
the development crew's job to examine and scale the back, following
which the loader operator would then commence mucking. Once that was
completed, the cycle would be repeated. Dillard, Waters, and Stiles
began scaling loose rock from the back while Wright went to get a
loader to muck out the rock. Wright returned with the loader and
Dillard told him the area was ready to be mucked. Wright and Stiles
proceeded to muck out the area, and Dillard and Waters left the area.
Most of the area had been mucked when a rock measuring about two feet
wide by four feet long fell from the back, inby the last row of bolts,
landing in front of Wright's loader. Wright was frightened by the

Page 4

event as his loader had passed under the area where the rock fell.
He also was angered because Dillard had told him the area had been
scaled.

After the fall of ground, Wright backed his loader into the

N-28 crosscut and told Stiles what had happened. Wright then got
into the dipper of Stiles' loader so he could reach the back and
scale it with a scaling bar. Wright and Stiles scaled "quite a bit"
of loose material, and then finished mucking the area. When that was
completed Wright went to the office/lunchroom where he saw Dillard,
Waters, and their foreman, Morrow.

Page 5

~785
Wright confronted Dillard because of the rock fall and the loose
ground that had not been scaled. Wright also warned Dillard that
some back had "blowed up." (This term refers to a bad ground
condition signaling the potential danger of a fall; "blowing", as
it is called, may include popping noises, cracking or the falling of
fine pieces of material called fines or scales.) When Dillard and
Waters returned to the drift they did no further scaling of the back,
although they did scale the floor of the tunnel. They then began
drilling holes in the tunnel face with the Jumbo when a rock six feet
eight inches long, four feet ten inches wide and four to five inches
thick fell from the back striking both of them while they were at the
controls of the Jumbo. The rock killed Dillard and permanently
injured Waters. At the time of the fall the men were approximately
seven and one-half feet beyond the last bolted area.

On the following morning, MSHA inspectors Frank Holiway and

Eugene Mouser began an investigation. They inspected the 14 N 33
drift and interviewed mine officials and employees. As a result they
issued a citation on September 15. 1984, charging a violation of
30 C.F.R. $ 57.3-22. 2/ Almost two years later, on August 18, 1986,
the citation was modified to instead allege a violation of section
57.3-20, which provided:

 Mandatory.

 Ground support shall be used if the operating
 experience of the mine, or any particular area of
 the mine, indicates that it is required. If it is
 required, support, including timbering, rock bolting,
 or other methods shall be consistent with the nature
 of the ground and the mining method used. 3/

2/ 30 C.F.R. $ 57.3-22 (1978) provided:

          Mandatory. Miners shall examine and test the
 back, face, and rib of their working places at the
 beginning of each shift and frequently thereafter.
 Supervisors shall examine the ground conditions during
 daily visits to insure that proper testing and ground
 control practices are being followed. Loose ground
 shall be taken down or adequately supported before any
 other work is done. Ground conditions along haulageways
 and travelways shall be examined periodically and scaled
 or supported as necessary.

Page 6

3/ Although we are construing $ 57.3-20 as it appeared in 1984 we
note that the standard has since been revised and renumbered and
now provides:

  Scaling and Support - Underground Only

  $ 57.3360 Ground support use.

 Ground support shall be used where ground conditions,
 or mining experience in similar ground conditions in

(Footnote continued)

Page 7

~786
A hearing was held before Judge William Fauver on April 14
and 15, 1987. In his decision the judge affirmed the citation and
assessed a $7,500 civil penalty.

In finding that Tennessee Chemical violated section 57.3-20

the judge first construed the standard, focusing upon the term
"operating experience." The judge held "that 'operating experience'
sufficient to indicate the need for roof support does not have to be
at the point of an immediate danger of a roof falling, but includes
[the] danger of a potential roof fall." 10 FMSHRC at 377. The judge
also considered a prior fall of ground fatality at the Cherokee Mine
as part of the mine's operating experience. 10 FMSHRC at 387.

Crediting and relying upon the testimony of MSHA supervisor

M. Turner and inspectors Holiway and Mouser, the judge found that the
areas of loose rock viewed by those individuals after the Dillard
fatality existed prior to that event and were not caused by the fall
of ground. The judge further concluded that the 14 N 33 drift had
poor ground conditions, was dangerous, and needed support where
Dillard and Waters had been working. 10 FMSHRC at 378. The judge
rejected Tennessee Chemical's position that the fall of ground was a
surprise and that it had an effective "layered" ground control system
under which miners, front-line supervisors, and upper management all
played a role in monitoring and controlling ground conditions. On
this point the judge found that there was a breakdown in communication
on each of these levels. 10 FMSHRC at 382, 387.

The first issue raised by Tennessee Chemical on review is

whether it was reversible error for the judge to consider a prior
fatality as part of the mine's "operating experience," as that term
is used in $ 57.3-20.

The prior fatality considered by the judge occurred on

January 27, 1984, when Ted Ledford, a development driller like
Dillard and Waters, was killed while operating a Jumbo drill at
the Cherokee Mine. Although the Ledford fatality occurred in a
different drift, like the instant case, the miner was killed while
drilling blasting holes into the face and a large rock fell from
the back. MSHA investigated the Ledford fatality but did not issue
any citations or orders for violation of safety standards. The MSHA
investigation concluded in a report issued February 22, 1984, that the
cause of the accident was the failure of management and employees to

Fn. 3/ continued

Page 8

the mine, indicate that it is necessary. When
ground support is necessary, the support system
shall be designed, installed, and maintained to
control the ground in places where persons work
or travel in performing their assigned tasks.
Damaged, loosened, or dislodged timber use (sic)
for ground support which creates a hazard to persons
shall be repaired or replaced prior to any work or
travel in the affected area.

30 C.F.R. $ 57.3360 (1988).

Page 9

~787
detect loose ground. Exhibit P-6. 10 FMSHRC at 372, 373. MSHA
also believed that a contributing cause may have been that vibrations
from the Jumbo drill may have loosened unstable ground. The report
contained recommendations that supervisors review proper ground
control procedures with the miners and that overhead protection be
provided on all mobile equipment where feasible. MSHA further advised
in the report that to prevent future rock fall accidents there must be
continued surveillance of day-to-day ground conditions and continual
scaling of the back and ribs. Id.

The judge observed that in its investigative report of the

Dillard/Waters accident MSHA made the same findings as to the cause
of the accident and repeated its earlier recommendations. 10 FMSHRC
at 372-374. The Dillard report also recommended that, where necessary
for ground support, rock bolting should be as near to the face as
possible. Id.

Tennessee Chemical contends that it was reversible error for

the judge to consider the Ledford fatality as part of its operating
experience and asserts that operating experience should not encompass
prior incidents that are free of operator culpability. Since MSHA
did not issue any citation in connection with the Ledford fatality,
Tennessee Chemical contends that it had been exonerated of any
culpability. Therefore, according to Tennessee Chemical,
consideration of this incident in the present proceeding subjects
it to double jeopardy.

The Secretary contends that the Ledford fatality is relevant
to Tennessee Chemical's operating experience within the meaning of
57.3-20 and that it is also relevant to the issue of Tennessee
Chemical's negligence. The Secretary notes that the judge also
evaluated the conditions in existence in the 14 N 33 drift prior to
and at the time of the Dillard/Waters incident as part of the mine's
operating experience apart from the Ledford fatality.

We hold that it was proper for the judge to consider the Ledford

fatality, as well as the events occurring in the 14 N 33 drift in the
days preceding the Dillard/Waters incident, as part of Tennessee
Chemical's operating experience within the meaning of section 57.3-20.

As noted by the judge, the Commission has previously interpreted

the standard in issue. In White Pine Copper Range Company, 5 FMSHRC
825 (1983), ("White Pine") we observed that the dictionary definition
of the key word "experience" included "practical wisdom resulting from
what one has encountered, undergone, or lived through" and that "a

Page 10

mine's 'operating experience' broadly encompasses all relevant facts
tending to show the condition of the mine roof in question and
whether, in light of the roof condition, roof support is necessary."
White Pine, 5 FMSHRC at 836. We further observed that operating
experience is determined by looking at the mine's prior operating
history and present day experience and that "this determination takes
into account the operating history of the mine (i.e., its past mining
practice) geological conditions, scientific test or monitoring data
and any other relevant facts tending to show the condition of the mine
roof in question and whether in light of those factors roof support is
required in order to protect the miners from a potential roof fall."
Id. at 838.

Page 11

~788
While the Ledford fatality occurred in January 1984 in a
different drift, it shared the following commonalities with the
September 1984 Dillard fatality: development work was being performed;
the victims were drilling blasting holes into the face with a Jumbo
drill; loose ground had been neither adequately scaled nor bolted;
the victims were working under an unbolted area; and a large rock fell
from the unbolted area causing the fatal injury. 10 FMSHRC at 372.

We view these common factors as sufficient to bring the Ledford

fatality within the scope of the term "operating experience." Indeed
the operator does not attempt to distinguish the circumstances
surrounding the two fatalities. Instead, Tennessee Chemical raises
only a "fairness" objection to consideration of the Ledford fatality.

To ignore the operator's previous experience simply because

no violations had been alleged would place a severe limitation upon
what would otherwise be considered a part of operating experience.
Since the White Pine test for "operating experience" takes an
inclusive approach allowing consideration of all relevant facts,
Tennessee Chemical's argument that operating experience should be
tied to culpability is inconsistent with that precedent.

While the operator asserts that this amounts to "double
jeopardy", we reject that argument for several reasons, chief
among them being that the concept is limited to situations where
a defendant has been punished in a prior criminal proceeding and
the Government is now seeking a second punishment for the same
offense. United States v. Halper, 57 U.S.L.W. 4526 (U.S. May 16,
1989)(No. 87-1383); 21 Am. Jur. 2d Criminal Law $ 244, 249. Here,
there was no prior criminal proceeding. The Secretary is not seeking
a civil penalty in connection with the Ledford fatality, nor is she
seeking to litigate the facts surrounding that event. The Ledford
fatality accident report was introduced only to show that the event
was part of the mine's operating experience.

We also find no basis for Tennessee Chemical's assertion that
the judge based his finding of a violation upon the Ledford incident.
The judge clearly relied upon a great deal of other information about
the conditions in the 14 N 33 drift in concluding that Tennessee
Chemical's operating experience was such that it should have known
that ground support was needed The judge recounted the following as
part of Tennessee Chemical!s ground support operating experience:

Shortly before the Dillard fatality the 14 N 33 drift had been
down for eight shifts due to adverse ground conditions. Extra rock

Page 12

bolts were installed up to the edge of the smooth wall and this was
completed on September 13, 1984. 10 FMSHRC at 371; Tr. 308, 309, 312,
315, 319, 324, 344, 482, 483. Rock bolter M. Richards testified that
he installed these bolts and that he put in an extra row of bolts
due to popping noises in the back and fines falling from the back.
10 FMSHRC at 378; Tr. 315, 318, 319. On or about September 13, 1984,
Richards also bolted around a small bore hole which was located
15 feet from the place where Dillard was killed. This bolting was
ordered by the general mine foreman, G. Williams. because of the
dangerous ground conditions. 10 FMSHRC at 371;

Page 13

~789
Tr. 310-312. Prior to the Dillard fatality Richards told his
supervisor, L. Hicks, of the dangerous ground conditions he
encountered. 10 FMSHRC at 371; Tr. 324, 325, 326.

Tennessee Chemical's manager of mining, A. Edey and Dr. Ross

Hammet, a mining engineer consultant, testified that noise in the
back and falling of small and large rocks as well as the necessity
of installing rock bolts in a particular area are all part of a
mine's operating experience. 10 FMSHRC at 372; Tr. 521, 522, 618.
Miners F. Wright and T. Mason (part of the 14 N 33 development crew)
testified about the bad ground conditions they experienced in that
drift prior to the Dillard fatality. 10 FMSHRC at 372, 385; Tr. 179,
182, 183, 204, 230, 264, 270, 281.

In July, 1984, Dr. Ross Hammet advised Tennessee Chemical

that while systematic rock bolting was not then indicated, the
requirement for ground support should be determined by continuing
to observe local geological conditions that might ultimately dictate
the need for systematic bolting. 10 FMSHRC at 372, 386; Exhibit P-27
at 10; Tr. 602-611.

Most importantly, immediately before the Dillard fatality, a

2 foot wide by 3 to 4 foot long rock fell in front of Wright's loader
while he was mucking out the 14 N 33 drift. Wright informed Dillard
of the fall and warned him that the back had "blowed up." C. Morrow,
the development foreman, overheard Wright tell Dillard of these
conditions. 10 FMSHRC at 370; Tr. 164, 167, 171.

Turner, and MSHA inspector E. Mouser testified that the loose
rock they observed upon visiting the scene of the Dillard fatality
on September 15th and 17th existed prior to the fatality and was not
caused by the rock fall. 10 FMSHRC at 381; Tr. 95, 96, 142.

The judge recounted all of the above in the context of reviewing

Tennessee Chemical's "abundant operating experience" indicating the
need for ground support before the fatality. Reading the judge's
decision as a whole it is evident that, while the judge considered the
Ledford fatality as part of Tennessee Chemical's operating experience,
he did not predicate his decision upon that event and, in fact, relied
in large measure upon this other experience, which Tennessee Chemical
does not contend was improperly considered as part of its operating
experience.

We next address Tennessee Chemical's challenge to the judge's
finding of gross negligence. After finding that Tennessee Chemical

Page 14

violated section 57.3-20 by failing to provide support at the place
where the rock fell on Dillard and Waters, the judge determined that:

          In light of the abundant operating experience
 showing the need for roof support in this area before
 the fatality, I find that Respondent's failure to
 provide roof support to protect Dillard and Waters from
 a potential roof fall constituted gross negligence.

10 FMSHRC at 387-88.

Page 15

~790
Thus, the judge's legal determination of gross negligence
was tied to his factual findings of abundant operating experience
showing the need for ground support in the 14 N 33 drift. In terms
of whether there is substantial evidence for the judge's determination
of gross negligence, we find support for this finding in the record
beginning with the mine operator's experience in connection with the
Ledford incident, and including the events and history of the
conditions in the 14 N 33 tunnel in the days immediately preceding
the Dillard fatality.

The judge also found that Tennessee Chemical's "layered

system" involving three levels of responsibility (miners, front
line supervisors, and upper management) for monitoring and
controlling the ground failed at each level. 10 FMSHRC 382. These
failures played an important part in the judge's determination that
gross negligence was involved. In this regard the judge pointed to
several failures of communication between Wright, Dillard and Waters
regarding the areas that were scaled and those that needed to be
scaled. 10 FMSHRC 383. The judge also related the failures at the
front line supervisor level, focusing upon the failure of Morrow,
the development foreman, to carry out his duties under 30 C.F.R.
$ 57.3-22, which requires supervisors to examine the ground
conditions during daily visits. The judge found that Morrow had not
visited the area on that shift before or after the warning and that he
failed to take any action even after overhearing Wright warn Dillard
of the hazardous ground conditions. The judge also found that Morrow
knew that Dillard and Waters would be returning to the area that
Wright had warned about and that they would be drilling into the face
while working in an unbolted area. 10 FMSHRC at 384. Additionally,
the judge accepted the general mine foreman's statement that the
development crew had reported the adverse conditions to Morrow.
Tennessee Chemical does not take issue with these findings.

The judge further determined that there was a second failure

on the part of front line supervisors. Based on the testimony of
rock bolter, M. Richards, the judge found that L. Hicks, supervisor of
stopping and rock bolting, was informed by Richards on September 13th
of the adverse ground conditions yet, like Morrow, he took no action
to inspect or provide support for the area where Dillard and Waters
would be drilling. In fact, Hicks criticized Richard for installing
extra bolts. 10 FMSHRC at 385.

At the upper management level the judge noted general mine
foreman G. Williams' awareness of the adverse conditions in the
part of the drift where Dillard would be working and his ordering of

Page 16

bolting around the bore hole, but his failure to order bolting for
the area where Dillard would be working. 10 FMSHRC at 386. Finally,
the judge noted that, while Dr. Hammet had stated in his July 1984
report that systematic bolting was not yet needed, he warned that such
bolting might ultimately be necessary and that decisions on the areas
to be supported would depend primarily on local geological conditions.

We view the above as constituting substantial evidence in support

of the judge's finding as to the degree of negligence involved. 4/

4/ Geological differences between underground coal mines and
underground metal/nonmetal mines generally result in requiring
systematic roof bolting

(Footnote continued)

Page 17

~791
There is, however, Tennessee Chemical's argument that the
judge did not consider the opinions of the MSHA inspectors who
considered the negligence to be moderate. MSHA supervisor Turner
explained that he retreated from his initial opinion that high
negligence was involved to his subsequent view that the negligence
was moderate because he believed that there were mitigating
circumstances. 5/ Tr. 18, 97. Turner felt the negligence was
moderate because of Tennessee Chemical's efforts following the
Ledford fatality, including their hiring of consultants and the
training and retraining of their employees in ground control.
Tr. 38, 39, 41, 42, 89, 100.

While the judge did not specifically discuss MSHA's change in
opinion as to the level of negligence involved after a citation is
contested before the Commission, it is the judge s responsibility to
determine the extent of negligence de novo based on the evidence in
the record before him. Sellersburg Stone Co., 5 FMSHRC 934, 36 (March
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). "When a judge's penalty
assessment is put in issue on review, we must determine whether it is
supported by substantial evidence and whether it is consistent with
the statutory penalty criteria." Missouri Rock, Inc., 11 FMSHRC 136,
141 (February 1989). As we have set forth, we find substantial
evidence of record supporting the judge's finding.

Tennessee Chemical also asserts that there is no factual

support for the judge's finding that there was a failure to supply
needed ground support, unless it is held to a standard of being an
insurer of events in the mine. It is Tennessee Chemical's position
that it had done all it could under the smooth wall method by bolting
as far forward in the drift as possible. It notes that smooth walling
is an accepted way to mine and that MSHA knew that it was utilizing
that method.

We need not consider the merits or demerits of smooth walling

generally or as practiced by Tennessee Chemical. The fact that the
smooth wall method may be a recognized method of ground support is not
at issue. The issue is simply whether, while utilizing the smooth
wall method, Tennessee Chemical maintained ground support that their
operating experience indicated was needed at the cited location.
Although Tennessee Chemical may have bolted as far forward as normally
called for under the smooth wall method, it is clear that, in the
circumstances presented, further bolting was called for and could have
been achieved. See Tr. 44, 45.

Fn. 4/ continued:

Page 18

in the former and rock bolting as necessary in the latter. Applying
that tenet here, the issue is not whether systematic bolting to the
face should have been instituted prior to the Dillard fatality, but
whether bolting should have been provided in the area where Dillard
and Waters were working. As to that issue, substantial evidence in
the record establishes that the area should have been bolted and that
failure to do so was grossly negligent.

5/ Turner's original basis for determining that high negligence was
involved stemmed from directions by his superiors within MSHA who
were influenced by the fact that there had been seven fatalities in
mines inspected by Turner's MS!lA field office. Tr. 88.

Page 19

~792
In sum, there is substantial evidentiary support in the record
for the judge's finding that Tennessee Chemical should have recognized
that there were serious ground support problems in the 14 N 33 drift,
preceding the Dillard fatality. Accordingly, there is substantial
support for the judge's rejection of Tennessee Chemical's argument
that the fall of ground that killed Dillard was a surprise. Further,
there is substantial support for the judge's finding regarding the
penalty criteria in his assessment of a $7,500 penalty.

For the foregoing reasons, the judge's decision is affirmed.

                Ford B. Ford, Chairman

                Richard V. Backley, Commissioner

                Joyce A. Doyle, Commissioner

                James A. Lastowka, Commissioner

                L. Clair Nelson, Commissioner

Distribution

Ronald G. Ingham, Esq.
Miller & Martin
1000 Volunteer Building
Chattanooga, Tennessee 37402

Linda Leasure, Esq.
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041