Asarco, Inc.

Plain-English summary

Asarco operated the Immel underground zinc mine, where a roof fall killed a miner. The Commission reviewed four citations, two alleging failures to test or examine ground under 30 C.F.R. § 57.3401 and two alleging failures to correct hazardous ground under 30 C.F.R. § 57.3200. It vacated the two accident-related citations and one heading citation because the Secretary did not prove the violations or provide fair notice of the testing requirement. It affirmed the travelway citation because substantial evidence showed 40 to 50 pieces of loose material in the roof and ribs, and it affirmed the finding of high negligence for that citation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.3401 and 57.3200
• Outcome: Citation Nos. 3253415, 3253417, and 3253702 were vacated. Citation No. 3253416 was affirmed with high negligence.
• Key point: The Secretary must prove the charged ground-control violation and give fair notice of the required conduct, while obvious hazardous loose ground in a travelway can support a citation and high-negligence finding.

Full text (FMSHRC public release)

CCASE:
MSHA V. ASARCO
DDATE:
19920603
TTEXT:
June 3, 1992
SECRETARY OF LABOR, Docket Nos. SE 89-24-RM
MINE SAFETY AND HEALTH SE 89-25-RM
ADMINISTRATION (MSHA) SE 89-26-RM
SE 89-37-RM
v. SE 89-60-M
SE 89-105-M
ASARCO, INC. SE 89-108-M

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 810 et seq. (1988)(the
"Mine Act" or "Act"). It involves the validity of four citations issued at
Asarco, Inc.'s ("Asarco") Immel Mine, two alleging violations of 30 C.F.R.
§ 57.3401 for failing to examine and test for loose ground and two allegin
violations of 30 C.F.R. § 57.3200 for failing to correct hazardous ground
conditions.(Footnote 1) Two citations were issued as a result of an
investigation of a

1 The regulations are as follows:
§ 57.3401 Examination of ground conditions.
Persons experienced in examining and testing for
loose ground shall be designated by the mine operator.
Appropriate supervisors or other designated persons
shall examine and, where applicable, test ground
conditions in areas where work is to be performed,
prior to work commencing, after blasting, and as
ground conditions warrant during the work shift.
Underground haulageways and travelways and surface
area highwalls and banks adjoining travelways shall be
examined weekly or more often if changing ground
conditions warrant.
§ 57.3200 Correction of Hazardous conditions.
Ground conditions that create a hazard to
persons shall be taken down or supported before other
work or travel is permitted in the affected area.
Until corrective work is completed, the area shall be
posted
~942

Page 2

fatal accident and the other two citations were issued during the accident
investigation, but do not allege that the violations contributed to the
accident.
Administrative Law Judge William Fauver affirmed the four citations and
concluded that the violations were the result of Asarco's highly negligent
conduct. Asarco, Inc., 12 FMSHRC 2073 (October 1990)(ALJ).(Footnote 2) The
Commission granted Asarco's petition for discretionary review and heard oral
argument on February 20, 1992.
For the reasons set forth below, we affirm the judge's conclusion that
Asarco violated section 57.3401 with respect to one citation and his related
finding that Asarco was highly negligent. We reverse his findings of
violation with respect to the other three citations.
I.
Factual and Procedural Background
Asarco operates the Immel Mine, an underground zinc mine located in Knox
County, Tennessee. The zinc is removed by the selective open stope
method.(Footnote 3) This method involves drilling blast holes into the ore
body and blasting the drilled area, and then removing the ore.
George Norton, a jumbo drill operator and the accident victim, was
assigned to drill blast holes in the heading of the 2C3 stope the morning of
October 24, 1988. Carlyle Bales, his foreman, transported Norton, Richard
Hubbard, and two other miners to their respective work areas. At about
7:25 a.m., Bales arrived with Norton and the others at the heading of the 2C3
stope, which was about 47 feet wide and 18 feet high. Bales testified that he
conducted a visual examination of the area and found no cracks, discoloration,
loose ground, or fallen material on the floor. Tr. 1203-04, 1214-15, 1225-26.
During the course of his examination, Bales walked to the wall of the heading.
Hubbard confirmed that Bales examined the work area that morning and that the
ground looked good. Tr. 237, 312. Bales then travelled back down the 2C3
stope and dropped Norton off to pick up the jumbo drill, so that Norton could
take it back to the heading of the 2C3 stope. Bales took the other three
miners to their work areas.
ÄÄÄÄÄÄÄÄÄÄÄ
1 cont.
with a warning against entry and, when left unattended,
a barrier shall be installed to impede unauthorized
entry.

2 The judge also dismissed two citations alleging violations of 30 C.F.R. §
57.3202 requiring the use of a scaling bar where manual scaling is performed.
The Secretary did not seek review of these dismissals.

3 "Stope" is defined as "[a]n excavation from which ore has been excavated in
a series of steps.... The term is also applied to breaking ground by drilling
and blasting or other methods." Bureau of Mines, U.S. Department of Interior,

Page 3

A Dictionary of Mining, Mineral and Related Terms 1081-82 (1968)
("DMMRT").
~943
A jumbo drill operator drills holes in the face, rib, or back, to be filled
with explosives and blasted. Norton was a veteran miner and drill operator
with over 25 years of experience. He generally worked alone.
At about 10:50 a.m., Bales returned to the heading of the 2C3 stope and
visited Norton for 20 to 25 minutes while Norton ate lunch. Bales testified
that he saw no signs of loose ground.(Footnote 4) Tr. 1205-07. About 12:10
p.m., Richard Abdella, a haul man, serviced Norton's jumbo drill. Abdella
testified that he observed no loose ground and did not hear any ground
"working." Tr. 988-99. At about 12:25 p.m., Bales again visited Norton to
bring water gaskets needed for drilling. Bales testified that he again looked
at the ground in the area and found nothing wrong. Tr. 1208-10.
John Ellis, Jr., the general mine foreman, found Norton at about 1:25
p.m., crushed under a slab that had fallen from the mine roof about seven feet
to the right and rear of the jumbo drill and outside the drill's protective
canopy. Norton died of the injuries sustained. The drill had been shut down
and the drill steel was found in holes that were the last or next to last row
scheduled to be drilled in the face of the heading.
The ground failure extended from the right rib to the area above the
jumbo drill, a distance of about 22 feet wide and 38 feet high. The fallen
rock increased in thickness from less than an inch at the right rib to about
two feet near the drill. The rock had been exposed to two blasting cycles,
the last on the day shift of October 20, 1988. Norton's work area had not
been roof bolted.
Mine Safety and Health Administration ("MSHA") Inspector Charles
McDaniel arrived at the mine about 2:15 p.m. on the day of the accident. He
went to the accident site to secure the area and issued a section 103(k) order
(30 U.S.C. § 813(k)) to preserve it until MSHA's investigative team arrived.
Inspector McDaniel saw chewing tobacco on fallen ground on the left side
of the jumbo drill, which indicated to him that Norton had scaled the
area.(Footnote 5) He also saw evidence that Norton had scaled the roof to the
right of the jumbo drill near the face. McDaniel testified that Norton had
scaled and probably thought the area was safe. Tr. 1363, 1366. However,
McDaniel did observe loose ground in the area. He also saw several drill
marks, including some near the fall site. McDaniel saw evidence that the
ground fall had included a

4 The term "loose ground" is defined as "[b]roken, fragmented, or loosely
cemented bedrock material that tends to slough.... As used by miners, rock
that must be barred down to make an underground workplace safe...." DMMRT at

658. In Amax Chemical Company, 8 FMSHRC 1146, 1148 (August 1986), the
     Commission interpreted the term "loose ground" to refer "generally to material
     in the roof (back), face, or ribs that is not rigidly fastened or securely

Page 4

attached and thus presents some danger of falling."

5 The term "scaling" is defined as the "[r]emoval of loose rocks from the
roof or walls." DMMRT at 965.
~944
belly from the roof or back. He testified that drill marks near the fall
site indicated that Norton had tried to get the belly down but was
unsuccessful. Tr. 1354-55, 1363-64. Inspector McDaniel concluded that
the ground fall that killed Norton was unpredictable. Tr. 1363, 1366, 1373.
On the day after the accident, MSHA Supervisory Mine Inspector Vernon
Denton and MSHA Mine Inspector William Erickson, the lead investigator,
visited the mine to investigate the fatality. Erickson issued Citation No.
3253415 that same day, charging Asarco with a violation of section 57.3401 for
its failure to examine and test for loose ground in the 2C3 stope prior to the
accident. Denton modified the citation on December 8, 1988, to clarify the
narrative section of the violation. At that time, Denton also issued Citation
No. 3253702, charging Asarco with a violation of section 57.3200, for its
failure to properly address the hazardous ground conditions with respect to
the loose ground that fell and killed Norton. Erickson also wrote Citation
No. 3253416 charging Asarco with a violation of section 57.3200 because loose
ground had not been removed from the ribs and back in places along the
driller's travelway between the 2C3 stope and the 2C3 heading (back stope).
Further, Erickson wrote Citation No. 3253417, charging a violation of section
57.3401, because he observed two miners directly below and in close proximity
to loose ground in the 3C4 stope.
The MSHA inspectors determined that each of these four violations were
of a significant and substantial nature and that Asarco's negligence was high.
In his decision, the judge concluded that Asarco violated section
57.3401 (Citation No. 3253415) at the accident site. 12 FMSHRC at 2087. The
judge found that Norton and Bales failed to properly examine and test the roof
in the heading of the 2C3 stope. 12 FMSHRC at 2083-84. The judge concluded
that, had Norton and Bales properly examined the roof, they would have seen
the belly and the loose ground observed by the Secretary's witnesses. 12
FMSHRC at 2083. The judge emphasized that, where loose ground is present and
left uncorrected, there is a prima facie indication that the roof was not
properly examined. 12 FMSHRC at 2084.
The judge further found that the roof should have been tested before the
accident because loose ground was observed by the Secretary's witnesses and
because the mine's blasting-mucking-drilling cycle created a duty to test the
roof. 12 FMSHRC at 2084. The judge rejected Asarco's contention that its
method of testing the roof with the jumbo drill was a competent method of
testing a mine roof. The judge credited the testimony of the Secretary's
witnesses that sounding the roof with a steel bar was the only effective
method to test a mine roof. 12 FMSHRC at 2084-87. The judge found Asarco
highly negligent in permitting and encouraging its drillers to use the jumbo

Page 5

drill instead of a scaling bar to test the roof. 12 FMSHRC at 2087.

6 The term "belly" is defined as "[a] bulge, or mass of ore in a lode."
DMMRT at 95.
~945
With respect to the other section 57.3401 citation (No. 3253417), the
judge found that the undisputed evidence supported the violation. 12 FMSHRC
at 2091. He credited the inspectors' opinions that the loose material that
they observed above the two miners in the 3C4 stope was hazardous and obvious.
Id. He further found that the fact that the miners were sitting beneath
loose, hazardous materials was a prima facie indication that the rib had not
been properly examined. Id. He also found that the violation was the result
of Asarco's high negligence. Id.
The judge also concluded that Asarco violated section 57.3200 (Citation
No. 3253702) at the accident site. 12 FMSHRC at 2091. The judge credited the
testimony and opinions of some of the Secretary's witnesses that the slab that
killed Norton was hazardous, detectable, and should have been taken down,
supported, or dangered off before the accident. Id. He found that Asarco was
highly negligent in failing to take the necessary precautions to protect
Norton from the danger of a roof fall in his work area. Id.
The judge found that the evidence fully supported the other section
57.3200 citation (No. 3253416), because the roof conditions in the travelway
were hazardous and obvious. 12 FMSHRC at 2091-92. The judge credited
Erickson's testimony that there were 40 to 50 pieces of loose material in the
roof and ribs along the travelway weighing from 10 to 100 pounds. Id. He
also found Asarco highly negligent in failing to correct the poor ground
conditions. Id.
The judge assessed penalties of $6,000 each for the citations issued
with respect to the accident area and $200 each for the other two citations.
II.
Disposition of Issues
A. Section 57.3401 accident citation (No. 3253415)
We conclude that the judge erred as a matter of law in his determination
that Asarco failed to examine and test the roof in the heading of the 2C3
stope as required by section 57.3401. That section contains two important
requirements. First, areas where work is to be performed must be examined for
loose ground before work is started, after blasting, and as conditions
otherwise warrant during the workshift. Second, where applicable, ground
conditions in work areas must also be tested.
That the area where Norton was working, the 2C3 heading, was subject to
examination is not in dispute. The judge interpreted the examination
requirement of the regulation to require a careful visual inspection.
12 FMSHRC at 2083, 2084. This interpretation is also not in dispute.
The Secretary does not dispute that Bales and Norton looked at the roof
in the heading. See Tr. 943-44, 948-51, 1044-45, 1202-10; S. Exh. 15; A. Exh.

Page 6

3. Bales testified that he examined the area when he first arrived at the 2C3
   heading with Norton about 7:25 a.m., the morning of the accident, and that he
   found no cracks, discoloration, loose ground, or any material on the floor.
   ~946
   Tr. 1203-04, 1214-15, 1225-26. Richard Hubbard, an Asarco miner, confirmed
   that Bales examined the work area and, that he shared Bales' belief that the
   ground was good. Tr. 312. See also Tr. 943-44, 1045, 1304. At about
   10:50 a.m., Bales visited Norton and again saw no signs of loose ground. Tr.
   1205-07. Bales also looked at the ground in the area less than an hour before
   the accident and testified that he did not see anything wrong and did not hear
   any indication that the ground was "working." Tr. 1208-10. MSHA Inspector
   McDaniel, the first MSHA person to arrive at the accident scene, testified
   that he believed Norton had examined the area. Tr. 1299.
   Moreover, it is undisputed that Norton scaled the roof in the area with
   the jumbo drill. MSHA Inspector Erickson, who issued the citation, as well as
   MSHA Inspectors Denton and McDaniel essentially acknowledged that the
   accident
   site had been scaled with the drill. Tr. 66, 209, 212, 428, 432, 437, 508-09,
   526-27, 1299. That the area had been scaled seems to confirm that the roof
   had been examined.
   The Secretary introduced no evidence to show that the area was not
   examined before Norton started working there on the day of the accident. The
   only evidence that the roof was not examined is (a) the fact that part of the
   roof fell and (b) the testimony of MSHA inspectors that they observed some
   areas of loose roof in the heading at the time of the accident investigation.
   The language of the citation makes clear that the inspectors based their
   determination that the roof had not been examined primarily on the fact that a
   roof fall had occurred, rather than on evidence that an examination had not
   been conducted.
   The judge concluded that "[w]here loose materials in a roof are present
   and left uncorrected ..., where miners work or travel, there is a prima facie
   indication that the roof was not properly examined within the meaning of
   § 57.3401." 12 FMSHRC at 2084. That conclusion is incorrect as a matter o
   law. Neither the presence of loose materials, nor the fact that the roof
   fell, by themselves, indicate that the area was not properly examined. Roof
   conditions in a mine are dynamic; a miner can perform a thorough and competent
   examination as required by the standard and determine that the roof is secure
   and yet, at a later time, material can become loose and fall. We agree with
   the judge that examinations must be "careful, informed observations with
   appropriate accountability." 12 FMSHRC at 2084. We disagree, however, with
   the judge's conclusion that a prima facie indication of violation occurs if
   there has been a fall of ground and loose material is subsequently discovered
   in the area.
   The judge relied, in part, on the existence of a "belly" in the roof of
   the heading to support his conclusion. 12 FMSHRC at 2083. The presence of a

Page 7

"belly," however, does not necessarily indicate that the area had not been
examined; Norton and Bales may have known that a belly was present, but
determined that it was stable. Indeed, testimony from Asarco miners William
Ellis and Richard Frazier, indicates that they attempted to remove a belly in
the subject heading a week before the accident. After scaling the area, they
concluded the area was safe. Infra at 11. Further, the fact that no action
is taken to remove or support a belly does not, in itself, establish that the
roof was not properly examined. A miner may observe an area of questionable
~947
roof, test the area and erroneously conclude that it is safe. Such conduct
could constitute a violation of section 57.3200, requiring that loose roof be
supported or taken down, but it would not by itself constitute a violation of
section 57.3401. The judge's conclusion has the effect, in cases where there
has been a fall of ground, of improperly shifting to the operator the burden
of proving that an examination was conducted. We hold that it is the
Secretary's burden to prove that a proper examination was not conducted.
We turn to the testing requirement of the regulation. The judge found
that Asarco failed to test the ground conditions in the heading because a
jumbo drill was used to test the roof. The judge held that the drill was not
an adequate device for testing a mine roof. 12 FMSHRC at 2084. For the
reasons that follow, we reject the judge's finding that Asarco's use of the
jumbo drill was not a permissible means of testing the roof.(Footnote 7)
The standard does not specify how testing for loose ground is to be
performed, nor has the Secretary described the procedure or set forth
guidelines in her Program Policy Manual or other interpretative material. The
Secretary has not prohibited mine operators from using jumbo drills to test
for loose ground.(Footnote 8) See Oral Arg. Tr. 23. The preamble to this
safety standard emphasizes that it was drafted to be "flexible enough to
accommodate the variety of situations which may arise while assuring the
safety of persons working in the mines." 51 Fed. Reg. 36192-93 (October 8,
1986). Counsel for the Secretary acknowledged this fact by stating that the
standard is "performance-oriented" so that it could be applied to "a lot of
different situations." Oral Arg. Tr. 23.
Section 57.3401 is not a detailed standard but rather is of the type
made "simple and brief in order to be broadly adaptable to myriad
circumstances." See, Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November
1981);
Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1982).
Nevertheless,
such a broad standard must afford reasonable notice of what is required or
proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4 (January 1983). The safety
standard must "give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly."
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also, Phelps Dodge
v. FMSHRC, 681 F.2d 1189, 1192 (9th Cir. 1982).

Page 8

Asarco asserts that it has been testing the roof at this mine with jumbo

7 Although Asarco contends that the judge expanded the scope of the testing
requirement of section 57.3401 beyond that set forth in the standard, on
review, Asarco does not dispute that testing was necessary in the heading on
the day of the accident. Consequently, we need not decide whether the judge's
conclusions as to when testing is required by the standard are correct.

8 Asarco's use of the jumbo drill in testing involves "rattling the back."
Under this procedure, the jumbo drill is vibrated or pounded against the roof
to detect loose material and to scale it. A. Br. 9 n.2. drills for a number
~948
drills for a number of years. Asarco contends that its testing method is safe
and effective and that it reasonably believed that this method complied with
the requirements of the standard. When faced with a challenge to a safety
standard on the grounds that it fails to provide adequate notice of prohibited
or required conduct, the Commission has applied an objective standard, i.e., t
he reasonably prudent person test. The Commission recently summarized this
test as "whether a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC
2409,
2416 (November 1990). See also, Lanham Coal Co., 13 FMSHRC 1341
(September
1991). "In order to afford adequate notice and pass constitutional muster, a
mandatory safety standard cannot be `so incomplete, vague, indefinite or
uncertain that [persons] of common intelligence must necessarily guess at its
meaning and differ as to its application.'" Id., quoting Alabama By-Products
Corp., 4 FMSHRC at 2129 (citations omitted).
The Secretary seems to take the position in this case that a scaling bar
is the proven and effective means of testing for loose ground and, if a mine
operator wishes to use another method, it does so at its own risk. The
language of the regulation, however, is not so limiting. If the Secretary
intended to require the exclusive use of a scaling bar to test for loose
ground in all but a few limited circumstances, she could have set forth that
requirement in her regulation or in interpretative materials. Absent such an
express requirement, we are not convinced that a reasonably prudent person
familiar with the mining industry would have recognized that testing the roof
with the jumbo drill fails to comport with the testing requirements of section
57.3401. The judge, in finding that testing with a jumbo drill was
inappropriate because the noise from the drill would mask the test sounds
coming from the roof, relied on testimony from Supervisory MSHA Inspector
Denton, MSHA ground control expert Billy Owens, and MSHA noise expert
Richard
Goff. Neither Denton, Owens, or Goff, however, had ever used a jumbo drill to

Page 9

test ground or for any other purposes. Tr. 106, 149, 182-83, 844-45, 1428,
1522-23. Denton acknowledged that he was not familiar with the jumbo drill
and did not know how to test with it. Tr. 182, 183. Nor is there any
indication that Denton, Owens, or Goff conducted noise tests of a jumbo drill
testing for loose ground. See Tr. 182, 183, 1449, 1501, 1520, 1523. While
Owens testified that investigations have found, in certain instances, that use
of the jumbo drill for testing ground has not been accurate, he also conceded
that testing with a scaling bar is not always accurate either. Tr. 774-75,
806-07. No objective evidence, such as test results, was presented by the
Secretary as to the accuracy of either method.
Asarco presented evidence to establish the effectiveness and safety of
using a jumbo drill to test the roof, which the judge did not directly address
in his decision. Jack Parker, an independent expert in ground control
experienced in the use of the jumbo drill, testified that using a jumbo drill
to test is common, safe, and accepted throughout the mining industry. Tr.
1549, 1550-51, 1555-56, 1558-59. Patrick Garven, a representative of the
largest manufacturer of underground drilling equipment, who was also qualified
as an expert witness, testified that testing with a jumbo drill is a safe,
common, and effective practice, and that one can distinguish between good and
bad ground conditions when rattling the back based on the sound changes. Tr.
~949
1466, 1472-74. A number of Asarco miners, including Richard Hubbard, William
Ellis, Richard Frazier, Richard Abdella and Carlyle Bales, testified as to the
effectiveness of using the jumbo drill to test for loose ground. Hubbard,
Ellis and Frazier, witnesses proferred by the Secretary, as well as Abdella,
testified that the machine would make a much different sound on solid rock
than on hollow rock typifying loose ground. Tr. 279-80, 323, 357, 554-56,
977-78. Asarco's mine safety director Hendrix testified that for at least
three years the jumbo drill had been used for testing ground at the Immel Mine
with MSHA's knowledge. Tr. 31.
Also, MSHA inspectors testified that using the jumbo drill to test was
appropriate. MSHA Inspector Vincent D'Innecenzo, who also inspected the mine
after the accident, testified that rattling the back was a common industry
practice for testing for loose ground, and that it was a permissible practice.
Deposition Tr. 27-28. MSHA Inspector McDaniel testified that he has observed
the practice of "rattling the back" for purposes of testing and considers it
safe, and a common practice. Tr. 1291-93, 1345.
The judge failed to directly address Asarco's evidence that drill
operators can detect loose ground by differences in vibration and by visual
observations of the rock being rattled, and that testing is not solely reliant
on sound. Parker testified that in addition to differences in sound
frequencies, one would look for dust dribbling from the roof, and observe
whether water used to suppress dust would come out of the rock at a different
location than where it was squirted in, suggesting a continuous crack.
Tr. 1557. Parker further testified that the drill behaves differently when

Page 10

going from hard to loose ground (Tr. 1557-58), and Frazier testified that, if
there was bad ground, there would be dribbling or shaking in the area. Tr.
568-69. Hubbard emphasized the importance of sight when testing with the
jumbo drill. Tr. 289-90.
Finally, the judge did not expressly address noise test data collected
by independent noise expert James Barnes, supporting the claims by Asarco's
miners that they are able to distinguish between solid and loose ground using
a jumbo drill. Tr. 1631-33. Barnes testified that he was able to distinguish
drummy, loose ground from solid ground by the difference in noise frequencies.
Tr. 1632-33, 1640-42, 1644-45.
Expert witnesses testify to offer their scientific opinions on technical
matters to the trier of fact. If the opinions of expert witnesses conflict in
a proceeding, the judge must determine which opinion to credit, based on such
factors as the credentials of the expert and the scientific bases for the
expert's opinion. In such cases, the judge should set forth in the decision
the reasons for crediting one expert's opinion over that of another. In the
present case, a number of well qualified experts presented their opinions on
the effectiveness of using a jumbo drill to test the roof, which the judge
apparently rejected, but the judge did not set forth in his decision any
reasons for rejecting their opinions. In fact, the judge rejected the opinion
testimony of Jack Parker, a highly qualified roof control expert, without
explanation or even any mention in the decision of his testimony.
Based on the evidence of record, we conclude that the Secretary has
~950
failed to show that a reasonably prudent person familiar with the mining
industry would have recognized that a jumbo drill could not be used
effectively to test for loose ground under section 57.3401. Prior to the
citation in question, Asarco was provided with no notice from the language of
the regulation, from the Secretary's interpretive bulletins or other
materials, or from earlier citations that the Secretary did not consider a
jumbo drill to be a permissible means to test a roof.
Accordingly, we conclude that the judge erred in finding that Asarco
violated section 57.340l for failure to examine and test in the 2C3 heading.
B. Section 57.3401 stope citation (No. 3253417)
The judge held that because the inspectors found "hazardous and obvious"
loose ground above the two miners sitting in an area of the 3C4 stope, there
was a prima facie indication that the rib had not been examined in compliance
with section 57.3401. 12 FMSHRC at 2091. The judge upheld the citation
because Asarco failed to produce evidence that would contradict this prima
facie indication. Id. We conclude that the judge erred as a matter of law.
Inspector Erickson, when he wrote the citation, determined that the
loose ground was about fifteen feet above the two men and consisted of rocks
of various sizes spread over an area about ten-feet wide. The appearance of
loose ground does not by itself establish a violation of section 57.3401. The
judge presumes that the presence of loose ground is sufficient to establish

Page 11

that the ground had not been examined, a presumption we deem erroneous. The
roof and rib in the area may have been examined prior to development of the
hazardous condition. Moreover, the examiners may have determined, correctly
or incorrectly, that the loose ground did not require barring down.
The burden of proving a violation is on the Secretary. The inspectors
did not testify that the ground had not been examined, but that two miners
were sitting beneath loose material (Tr. 138-39; See S. Exh. 6); when asked
whether the loose material had been examined or tested, Inspector Denton
replied: "Well, they hadn't taken any action to take it down." Tr. 139.
Inspector Erickson's testimony provides no additional detail. Tr. 439. The
evidence falls short of that required to establish a violation.(Footnote 9)
Accordingly, the judge erred in finding that Asarco violated section
57.3401 in the 3C4 heading.
C. The section 57.3200 accident citation (No. 3253702)
Section 57.3200 states, as pertinent, that "[g]round conditions that
create a hazard to persons shall be taken down or supported before other work
or travel is permitted in the affected area." The judge found that the slab
that killed Norton was hazardous, detectable, and should have been taken down,

9 A citation for violation of section 57.3200 for hazardous ground may have
been appropriate under the circumstances, but that question is not before the
Commission.
~951
supported, or dangered off before the accident. 12 FMSHRC at 2091. Asarco
argues that the judge erred because the fatal ground fall was unpredictable.
The purpose of section 57.3200 is to require elimination of hazardous
conditions. The fact that there was a ground fall is not by itself sufficient
to sustain a violation. Rather, the Secretary is required to prove that there
was a reasonably detectable hazard before the ground fall. We conclude that
the Secretary failed to meet this burden and that the judge's conclusion that
the hazardous ground was detectable before the accident is not supported by
substantial evidence.
As we have consistently recognized, the term "substantial evidence"
means "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." See, e.g., Mid-Continent Resources, Inc., 6 FMSHRC
1132, 1137 (May 1982) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). While we do not lightly overturn a judge's factual findings and
credibility resolutions (e.g., Hall v. Clinchfield Coal Co., 8 FMSHRC 1624,
1629-30 (November 1986)), neither are we bound to affirm such determinations
if only slight or dubious evidence is present to support them. See e.g.,
Krispy Kreeme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).
We
are guided by the settled principle that in reviewing the whole record, an
appellate tribunal must also consider anything that "fairly detracts" from the

Page 12

weight of the evidence that may be considered as supporting a challenged
finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).
The testimony in the record, addressing the conditions in the 2C3
heading on October 24, 1989, before the accident, indicates that there did not
appear to be loose ground and that the condition of the roof was good.
Carlyle Bales, Norton's foreman, was in the 2C3 heading at 7:25 a.m., 10:50
a.m., and 12:25 p.m. and saw no loose ground. Tr. 1203-04, 1205-07, 1208-10,
1214-15, 1225-27. Richard Hubbard, an Asarco miner was in the 2C3 heading at
7:25 a.m. and also testified that the ground in the area looked good. Tr.

312. Finally, Richard Abdella, another miner, was in the 2C3 heading at about
     12:10 p.m. and saw no signs of loose ground. Tr. 987-88, 1000.
     The testimony also indicates that in the days before the accident, the
     ground in the 2C3 heading was safe. About a week earlier, William Ellis and
     Richard Frazier, Asarco miners, noticed there was a belly in the heading and
     tried without success to take it down. After it had been scaled, Ellis and
     Frazier thought the area was safe. Tr. 318-19, 326-27, 330, 338-39, 364, 560-
     61, 590-91, 616. Ellis specifically testified that the belly "wasn't loose."
     Tr. 330. In addition, while the heading had been blasted on October 20, 1988,
     Hobart Tucker, who mucked the heading on the evening of October 21 and
     morning
     of October 22, testified that the ground looked good and the area was suitable
     for working. Tr. 378, 379-81, 389.
     The evidence establishes that ground had been scaled. See, e.g., A.
     Exhs. 16, 26; Tr. 168, 432, 505-10, 513. Inspector Denton, who issued the
     citation, acknowledged that the area had probably undergone at least some
     scaling. Tr. 66. Denton also conceded that early drafts of MSHA's accident
     investigation report stated that roof had been scaled with the jumbo drill,
     ~952
     but that all mention of scaling or taking down loose roof was subsequently
     removed from the report. Tr. 209-12. Inspector Erickson also acknowledged
     that some scaling had evidently been done at the accident site. Tr. 428, 432,
     437, 508-09, 526-27. Inspector McDaniel testified that he believed that
     Norton had scaled the area and that Norton probably considered the area to be
     safe. Tr. l363, l366. McDaniel specifically stated that drill marks he saw
     near the fall site indicated that Norton had tried to remove the belly but was
     unsuccessful and that Norton must have felt the area was safe. Tr. 1354-55,
     1363-64, l366. Indeed, McDaniel, who was the first MSHA official at the scene
     of the accident, testified that the ground fall was unpredictable. Tr. 1363,
     1366, 1373.
     The Secretary premises her case on the assumption that the rock that
     fell had been loose and could have been detected by proper testing. The judge
     held that Asarco's use of a jumbo drill to test the roof did not meet the
     requirements of section 57.3401. As we have concluded, a reasonably prudent
     person familiar with the mining industry would not have recognized that
     testing the roof with a jumbo drill did not fulfill the requirements of that

Page 13

section. It is not disputed that Norton used the jumbo drill to test the roof
in the accident area.
The Secretary's argument for affirming the citation relies mainly on the
ground fall and the conditions that were observed after the accident. As
previously discussed, the Secretary, to meet her burden of proof, must show
that ground conditions creating a hazard were not taken down or supported.
Thus, the Secretary must first show that hazardous ground conditions existed
at the time Norton was working in the area. The Secretary's witnesses who
were knowledgeable of the conditions in the heading before the accident,
including Hubbard, Ellis, Tucker, and Frazier, believed that the accident site
roof was safe at the time they were there. The judge apparently presumed
that, because there had been a roof fall and some loose roof was observed
during the accident investigation, predictable hazardous ground conditions
could have been detected at the time Norton was working in the area.
Furthermore, to the extent the Secretary relied on Asarco's failure to roof
bolt, we note that there is no roof bolting requirement for metal mines and
Asarco was not charged with a failure to roof bolt. See 30 C.F.R. § 57.3360.
Even though MSHA ground control expert Billy Owens, Inspector McDaniel,
William Ellis, and Richard Frazier testified that the heading may have been
too wide, Owens' ground control evaluation of the accident site did not
mention the width of the heading as a factor. Ellis testified that the ground
fall was a "freak accident", both he and Frazier testified that, when they
worked in the heading, they felt it was safe, and McDaniel thought the
accident was unpredictable. S. Exh. 12; Tr. 326-27, 329, 560-61, 616, 1363,
1366, 1373.
The Commission, in Amax Chemical Corp., supra, 8 FMSHRC at 1149, stated
that a variety of factors should be considered in determining whether loose
ground is present, including but not limited to the results of sounding tests,
the size of the drummy area, the presence of visible fractures and sloughed
material, "popping" and "snapping" sounds in the ground, the presence, if any,
of roof support, and the operating experience of the mine or any of its
particular areas. In evaluating the facts of this citation against the Amax
~953
Chemical criteria, we note that the area had been examined and tested. All of
the testimony concerning the condition of the heading before the accident
indicates that the ground conditions were not believed to be hazardous, and
scaling had been performed. There was no indication of any "popping" or
"snapping" sounds. In addition, the dolomite formation in the mine was stable
and the mine was not experiencing massive ground failures. 12 FMSHRC at 2076.
Accordingly, we conclude that the judge erred in finding that Asarco
violated section 57.3200 for failing to take down or support ground in the 2C3
heading subsequently deemed to be hazardous.
D. Section 57.3200 travelway citation (No. 3253416)
The judge held that Asarco violated section 57.3200 because of his
finding that the roof conditions in the travelway were hazardous and obvious.

Page 14

l2 FMSHRC 2092. Asarco argues that the judge ignored the particularity
requirement of section 104(a) of the Mine Act, 30 U.S.C. § 814(a), asserting
that the citation is vague and encompasses vast areas of the mine. Asarco
also argues that at the hearing neither Inspector Denton nor Erickson could
identify on a mine map the location of the loose ground in the travelway.
Finally, Asarco argues that the roof in the travelway was safe. We find
Asarco's contentions to be without merit.
Section 104(a) requires inspectors to issue citations to operators in
written form describing the nature of the violation with particularity. Jim
Walter Resources, Inc., 1 FMSHRC 1827, 1829 (November 1979). This
requirement
has two primary purposes. The first is to ensure that the operator is
adequately advised of the conditions so that he can abate them. Id. The
second is to give the operator fair notice of the charges. Id. The
Commission held in Jim Walter that the lack of a citation's specificity does
not affect its validity unless the operator is thereby prejudiced. Id.
Asarco has not demonstrated any legal prejudice with respect to an inability
to abate the violation or to defend against the citation.
We conclude that substantial evidence supports the judge's finding of
violation. Erickson testified that while traveling to the accident site with
Denton and Asarco officials, he observed 40 to 50 pieces of loose material in
the roof and ribs along the travelway, each weighing from 10 to 100 pounds.
Tr. 417, 419, 426. Denton also testified to the presence of loose material in
the travelway between the 2C3 back stope and heading. Tr. 136-37. Erickson
and Denton further testified that they pointed out the loose areas to Asarco
officials as they proceeded to the accident site. Tr. 163, 419. The judge
credited this testimony. 12 FMSHRC at 2092. In addition, McDaniel testified
that as he was going to the scene of the accident, he saw loose ground in the
travelway on pillars and ribs. Tr. 1359. The mine manager acknowledged that
Denton and Erickson had pointed out loose ground generally. Tr. 1133.
Accordingly, we affirm the judge's finding that Asarco violated section
57.3200 for loose ground in the travelway leading to the 2C3 stope heading.
~954
E. Negligence
Asarco argues that the judge erred in finding Asarco highly negligent
with respect to the four violations. Because we are vacating all but one
citation, our discussion is limited to negligence with respect to that
violation, Citation No. 3253416.
The judge found Asarco highly negligent with respect to the section
57.3200 citation in the travelway based on Asarco's failure to take down or
support loose material that was "hazardous and obvious." 12 FMSHRC at 2092.
In this regard, the judge credited MSHA Inspector Erickson's testimony that
there were 40 to 50 pieces of loose material in the roof and ribs along the
travelway weighing from l0 to l00 pounds. Id. The judge also relied on
Erickson's testimony that he saw more loose material in the travelway than he

Page 15

had seen at any other underground mine for "quite a period of time." Id.; Tr.
418-19. We conclude that this testimony constitutes substantial evidence
supporting the judge's finding. Accordingly, we affirm the judge's finding
that Asarco was highly negligent with respect to Citation No. 3253416.
F. Other Issues
Asarco also alleges that: (1) Citation Nos. 3253415 and 3253702 (the
accident citations) are impermissibly duplicative; (2) Inspector Denton was a
biased witness; and (3) the judge intervened to a prejudicial degree in
examining certain witnesses thereby improperly becoming an advocate for the
Secretary. In view of our decision in this case, these issues are essentially
moot.
With respect to the travelway citation (No. 3253416), Denton's testimony
was either undisputed or, where disputed, corroborated by other independent
testimony. While Asarco's objection to the judge's examination of witnesses
relates solely to the two accident citations, we note that administrative law
judges have considerable leeway in conducting a hearing and in developing a
complete and accurate record. See Ruhlen, Manual for Administrative Law
Judges, Administrative Conference of the United States, at 35 (1974).
~955
III.
Conclusion
For the foregoing reasons, we reverse the judge's findings that Asarco
violated section 57.3401 (Citation Nos. 3253415 and 3253417), and that Asarco
violated section 57.3200 (Citation No. 3253702) in the 2C3 heading.
Accordingly, we vacate citation Nos. 3253415, 3253417, and 3253702. We affirm
the judge's finding that Asarco violated section 57.3200 (Citation No.
3253416) in the 2C3 travelway and his finding that Asarco was highly
negligent.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner