APG Lime Corp.

Plain-English summary

APG Lime operated the underground Kimballton limestone mine in Virginia. A roof slab fell and fatally injured two miners operating a drill, and MSHA cited APG for failing to use ground support. Judge T. Todd Hodgdon found that the calcite seam and other conditions observed before the fall did not indicate that ground support was necessary, and that the Secretary had not shown APG should have known otherwise. He granted APG's contest, vacated Citation No. 4288981, and dismissed the civil penalty petition.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.3360
• Outcome: Citation No. 4288981 was vacated, and the civil penalty petition was dismissed.
• Key point: The judge assessed the pre-accident conditions and the mine's experience in similar ground before deciding whether ground support was required.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                        February 9, 1996

APG LIME CORP., : CONTEST PROCEEDING
Contestant :
v. : Docket No. VA 94-5-RM
: Citation No. 4288981; 9/12/93
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Kimballton Mine
ADMINISTRATION (MSHA), : Mine ID 44-00082
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 95-8-M
Petitioner : A. C. No. 44-00082-05552
v. :
: Kimballton Mine
APG LIME CORP., :
Respondent :

                               DECISION

Appearances: Pamela S. Silverman, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner;
Timothy M. Biddle, Esq., and Thomas A. Stock,
Esq., Crowell & Moring, Washington, D.C., for
Respondent.

Before: Judge Hodgdon

 These consolidated cases are before me on a notice of

contest and a petition for assessment of civil penalty filed by
APG Lime Corp. (APG) against the Secretary of Labor, and by the
Secretary of Labor, acting through his Mine Safety and Health
Administration (MSHA), against APG, respectively, pursuant to
Section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The company contests Citation No. 4288981
issued on September 12, 1993. The Secretary seeks a penalty of
$50,000.00 for the violation of his mandatory health and safety
standards set out in the citation. For the reasons set forth
below, I grant the contest, vacate the citation and dismiss the
petition.

 A hearing was held on September 19 and 20, 1995, in

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Pearisburg, Virginia. MSHA officials Richard L. Duncan, Joseph
M. Denk, Michael A. Evanto and Joseph A. Cybulski, and APG
employees Chester J. Tabor, David T. Epperly, Stacey E. Lucas,
Lawrence B. Hayes and Ivan L. Blevins testified for the
Secretary. Former Mine Superintendent Walter H. Paulson and Dr.
James J. Scott testified on behalf of APG. The parties also
submitted briefs which I have considered in my disposition of
these cases.

                     FACTUAL SETTING

 APG’s Kimballton Mine is a medium-size, underground

limestone mine in Giles County, Virginia. Limestone from the
mine is kilned to produce lime. Entries are developed and
limestone is mined by blasting. The entries are approximately 26
feet high and 42 feet wide and are connected by crosscuts and
vertical ventilation tunnels called “raises.” In addition,
entries called “windows” are driven off the main heading until
the “hanging wall” (the limestone formation overlying the
formation being mined) is contacted.

 Ground is controlled by manual scaling of the roof, face and

ribs in the face area after each round of blasting. Roof bolts
are used only in the underground mine shop area.

 On September 9, 1993, a slab of rock, measuring

approximately 122 feet long by 22 feet wide by 9.5 feet thick,
fell from the roof in the 14 East Main entry near the No. 11
crosscut and crushed two miners operating a Tamrock twin boom
jumbo drill. The accident was investigated by Richard Duncan, at
the time a supervisory inspector, and Joseph Denk, a mine safety
and health specialist.

 As a result of their inquiries, the investigators issued

Citation No. 4288981 on September 12, 1993. The citation alleges
a violation of Section 57.3360 of the Regulations, 30 C.F.R.
§ 57.3360, stating that:

      On Thursday, September 9, 1993, at approximately
 4:00 p.m., an accident occurred underground at the mine
 in which two employees (Timothy Wayne Francis and Brian
 Ratcliffe) were fatally injured. The two men were
 operating a Tamrock Supermatic HS205T twin boom jumbo
 drill in the 14th level east main heading when a slab
 of rock fell from the roof and crushed the machine. At
 that time, an effective ground support system was not
 being utilized at the mine.



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(Govt. Ex. 5.) On October 7, the citation was modified to
increase the level of negligence alleged from “moderate” to
“high” and to allege an “unwarrantable failure” on the part of
APG by changing the section of the Act under which the citation
was issued from 104(a), 30 U.S.C. § 814(a), to 104(d)(1), 30
U.S.C. § 814(d)(1).

         FINDINGS OF FACT AND CONCLUSIONS OF LAW

 Section 57.3360 provides, in pertinent part, that: “Ground

support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate
that it is necessary.” It is the Secretary’s position that
ground conditions prior to the roof fall should have indicated
that ground support was necessary.

 The Secretary argues that a calcite1 seam in the roof,

approximately one-eighth to a quarter of an inch wide, running
from where the No. 11 window intersected the main heading to
about halfway across the main heading should have put the company
on notice that further action was necessary. Specifically,
“[t]he Secretary contends that mine management deliberately
failed to properly assess the above conditions in the 14 East
entry between September 7, 1993 and September 9, 1993, and as a
result, failed to implement appropriate action to support or
remove the ground after hand scaling proved ineffective.”
(Sec. Br. at 9.)

 The evidence, however, does not support this position. The

calcite seam was first noticed by the roof scalers on September

7. After scaling away all of the removable pieces of rock from
   the seam, they attempted to insert their pry bars into the seam
   to determine if they could pry anything further down. They were
   unable to. Still concerned, they advised their foreman of the
   situation at lunch.

   Ivan Blevins, the foreman, examined the seam and he and five
   scalers, together, attempted to pry something down with their
   bars. In all, the scalers worked on this seam for about three
   hours without being able to scale it any further. Since the roof

   1
   Calcite is “[a] mineral . . . , CaCO3, . . . . [That] is
   the essential constituent of limestone, chalk, and marble, and a
   minor constituent of many other rocks.” Bureau of Mines, U.S.
   Department of Interior, A Dictionary of Mining, Mineral, and
   Related Terms 163 (1968).

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showed no signs of water or mud seepage, was not “drummy”2 or
making any sounds of shifting, manifestations normally associated
with a dangerous roof, Blevins and the scalers concluded that the
roof was safe as it was. Accordingly, the scalers painted their
initials on the roof to indicate that it was safe to go under.

 Blevins visually examined the entry on the eighth and ninth

and foreman Chester Tabor examined it on the ninth and neither
observed anything to indicate to them that the situation with the
seam had changed. There was no evidence that anyone else noticed
anything out of the ordinary either.

 It was determined that the fall occurred because the calcite

seam was not solid between the rocks, but had gaps in it. (Govt.
Ex. 2, Resp. Ex. L, Tr. 550.) The gaps were not visible before
the fall.

 I conclude that nothing in the ground conditions should have

indicated to APG that ground support was necessary. In reaching
this conclusion, I have evaluated the company’s actions in terms
of what a reasonably prudent person, familiar with the mining
industry and the protective purpose of Section 57.3360, would
have done in order to meet the protection intended by the
regulation. See Canon Coal Co., 9 FMSHRC 667, 668 (April 1987).

 It is significant that the only people who observed the

calcite seam, the miners, were unanimous in their opinion that it
was safe. It is undisputed that calcite seams are numerous
throughout the mine and do not, by themselves, indicate an
unstable roof. The Secretary has not presented any evidence that
there was anything about this particular calcite seam that should
have put the company on notice that the ground condition required
different actions than those it had followed in 45 years of
mining.3 In this regard, the opinion of the inspectors, who
never saw the seam, given after the accident, is unpersuasive.4

 2
   Drummy is “[l]oose . . . rock that produces a hollow,

loose, open, weak, or dangerous sound when tapped with any hard
substance to test condition of strata; said especially of a mine
roof.” Id. at 356.
3
Needless to say, there is absolutely no evidence to
support the Secretary’s proposition that APG deliberately, that
is purposefully, failed to properly assess the calcite seam.
4
The inspectors seemed to place great weight on general
statements by some of the miners who they interviewed that in the
past some areas of suspected bad roof had been blasted down. The

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 Furthermore, the company’s mining experience in similar

ground conditions in the mine, contrary to the position of the
Secretary, would have indicated, as it apparently did to the
scalers, that if there were no visible gaps in the calcite seam,
and no other indications of unstable roof, ground control was not
necessary. In 45 years of operation, the company had never
experienced a fall of this nature or magnitude.

 I find that a reasonably prudent person, familiar with the

mining industry and the purpose of Section 57.3360 would not have
concluded that either the ground condition encountered or mining
experience in similar ground conditions indicated the necessity
for ground support.5 Accordingly, I conclude that APG did not
violate Section 57.3360.

                          ORDER

 It is ORDERED that APG Limestone’s contest of Citation No.

4288981 is GRANTED, Citation No. 4288981 is VACATED and the civil
penalty petition is DISMISSED.

                                  T. Todd Hodgdon
                                  Administrative Law Judge

Distribution:

Pamela S. Silverman, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA
22203 (Certified Mail)

evidence at trial indicated that such instances were rare and did
not involve the same situation encountered on September 7. (See
e.g. Tr. 316.) Cf. Asarco Mining Co., 15 FMSHRC 1303, 1307-08
(July 1993) (the testimony of the inspectors was credited where
they actually observed the conditions cited).

 5
   Obviously, this roof fall becomes part of APG’s mining

experience. Consequently, the actions found reasonable in this
case may not be reasonable in future cases. See Tennessee
Chemical, Inc., 11 FMSHRC 783, 788 (May 1989).

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Timothy M. Biddle, Esq., and Thomas A. Stock, Esq., Crowell
& Moring, 1001 Pennsylvania Avenue, N.W., Washington,
D.C. 20004-2595 (Certified Mail)

/lt

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