805 KAR 5:030. Prohibition against working or traveling under unsupported roof; penalties.
RELATES TO: KRS 351.020, 352.201
STATUTORY AUTHORITY: KRS Chapter 13A, 351.070(13)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 352.201 requires each underground mine to have an approved roof control plan and directs that no person shall proceed beyond temporary or permanent roof support. This administrative regulation establishes procedures for the department's response in those circumstances in which persons work or travel under unsupported roof.
Section 1. Definition. "Unsupported roof" means the roof in any portion of an underground coal mine in which no temporary or permanent roof support system has been installed and shall include any and all areas of an underground coal mine, including breaks, fall areas, and pillar lines; but "unsupported roof" shall not refer to roof which has adequate natural support and has been determined to have adequate natural support either initially or following the installation of artificial roof support.
Section 2. (1) No person shall work or travel under unsupported roof in any underground coal mine. No mining-related activities, including equipment installation and maintenance, clean-up or activities preparatory to the installation of temporary or permanent roof support shall be performed under unsupported roof, and no justification for performing any such act(s) shall be accepted by the department.
(2) Within sixty (60) days from the effective date of this administrative regulation, all persons working in an underground coal mine shall be instructed by the management of the mine in the hazards of proceeding beyond temporary or permanent roof support. Any person who proceeds beyond temporary or permanent roof support shall be personally liable for any violation of proceeding beyond temporary or permanent roof support. Without regard to individual responsibility, however, each mine's foreman or section foreman shall exercise primary and ultimate responsibility to ensure that no person(s) under the authority of that foreman works or travels under unsupported roof.
(3) Unless an inspector of the department observes persons working or traveling under unsupported roof, he shall otherwise determine if the area below unsupported roof appears to have been used or otherwise occupied by mining personnel. Use or occupancy shall be deemed to have occurred if there is physical evidence indicating to the inspector that persons have worked or traveled under unsupported roof.
Section 3. (1) Whenever an inspector of the department observes or otherwise determines that mine personnel have proceeded under unsupported roof, the inspector shall document that in a report to his district supervisor. That report shall include the name and location of the mine at which the violation is alleged to have occurred; the time and date of the violation, if known; the person or persons observed or believed to have worked or traveled under unsupported roof; the basis for that belief if no conduct was actually observed; the name of the foreman or section foreman under whose responsibility the person(s) were working at the time the conduct occurred; the name of the instructor who administered the most recent training to the person alleged to have proceeded under unsupported roof, the date of that training, and the location at which it was administered; and a recommendation of the action to be taken by the department with respect to the violation(s) alleged. The report shall be tendered to the district supervisor within two (2) working days of the date upon which the inspector observes or becomes aware of the violation alleged.
(2) Upon his receipt of the report from the inspector, the district supervisor shall attempt to verify the matters set out in the inspector's report and in making that verification, may enter upon the premises of the underground mine at which the violation is alleged to have occurred, pursuant to KRS 351.140(8). Within five (5) working days of his receipt of the report from the inspector, the district supervisor shall tender to the commissioner a report of the alleged violation, together with a summary of the efforts undertaken by the district supervisor to verify the information set out in the inspector's report, and a recommendation to the commissioner as to any response to the violation alleged which the department should make.
(3) Within thirty (30) days of his receipt of the report and recommendation from the district supervisor, the commissioner shall determine whether the violation alleged is to be made subject to hearing. If the commissioner determines that a hearing is required to adjudicate the violation alleged, he shall cause a notice of violation to be prepared and delivered to all persons named in the district supervisor's report who appear to have responsibility, in some capacity, for that violation, which notice shall describe the violation alleged and establish a time and place for the hearing to consider it. Any person alleged to have worked or traveled under unsupported roof, or to otherwise have some responsibility for that violation, shall be given not less than thirty (30) days notice of the hearing at which he will be required to appear and respond to the allegation made.
(4) Not more than thirty (30) days following a hearing, at which the commissioner or his designee shall preside, the department shall issue findings of fact, conclusions of law and an order with respect to the matters heard at the hearing, copies of which shall be provided to the mine operator and to all parties to the hearing. If the person charged with working or traveling under unsupported roof is found guilty of that charge, he shall be required to complete an eight (8) hour course of roof control methods and safety procedures, including roof control plans and the hazards of working or traveling under unsupported roof. The course of instruction shall be developed by the department, which shall administer it in the office of the district in which the violation is found to have occurred. An employer shall not be responsible for paying the salary of any person required to complete the eight (8) hour course following a finding of that person's having worked or traveled under unsupported roof, although the eight (8) hour period required to complete the course shall be treated as an excused absence by the mine operator. A person found guilty of having worked or traveled under unsupported roof or having permitted or contributed to that violation shall not be permitted to resume employment in any underground coal mine until he has completed the eight (8) hour course of instruction, which shall be timely provided by the department to the person required to complete it.
(5) If any person fails to complete the eight (8) hour course of instruction, he shall be required to enroll for and complete another such course. At the discretion of the department, however, the Board of Miner Training, Education and Certification, established in KRS 351.105, may also be advised of his failure to complete the eight (8) hour course of instruction and may commence whatever action it deems appropriate with respect to the failure to complete the eight (8) hour course of instruction.
(6) Upon the department's determination that a person has proceeded beyond temporary or permanent roof support, the management of the mine at which he was employed at the time of the violation shall conduct, with all mine employees and in the presence of a representative of the department, a training session of not less than thirty (30) minutes duration concerning roof control methods and safety procedures, specifically including a discussion of the prohibition against working or traveling under unsupported roof.
Section 4. The following procedure shall apply to any person who has been found by the commissioner to have worked or traveled under unsupported roof and who has thereafter completed the eight (8) hour course on roof control methods and safety procedures described above, and who is alleged to have again worked or traveled under unsupported roof: the department's inspector shall make his report and recommendation to the district supervisor within two (2) working days of observing or becoming aware of the alleged violation. The contents of that report shall be identical to those described in Section 3(1) of this administrative regulation. Upon his receipt of the inspector's report and recommendation, the district supervisor shall, within five (5) working days, make the determination and forward to the commissioner the recommendation described in Section 3(2) of this administrative regulation. Upon his receipt of the district supervisor's report and recommendation, the commissioner shall, within thirty (30) days of his receipt of it, make the determination required of him in Section 3(3) of this administrative regulation. If the commissioner determines that a person has, following his completion of the eight (8) hour course of instruction in roof control methods and safety procedures, again worked or traveled under unsupported roof, the commissioner shall immediately make a written report of that determination to the Board of Miner Training, Education and Certification. Accompanying that report shall be the commissioner's recommendation as to possible action by the board with respect to the second alleged violation, that action to potentially include the board's requiring that the person alleged to have worked or traveled under unsupported roof appear at a hearing convened by the board to show cause why he should not be decertified as an underground miner or as the holder of a certificate to practice a mining specialty in this Commonwealth, or both. Any hearing ordered by the Board of Miner Training, Education and Certification shall be conducted in accordance with KRS 351.102(11) and 352.390. (19 Ky.R. 845; Am. 1084; eff. 11-9-92.)