Request By:
H. N. Kirkpatrick, Commissioner
Department of Mines and Minerals
P.O. Box 680
Lexington, Kentucky 40500
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David C. Short, Assistant Attorney General; By: David K. Martin, Assistant Attorney General
You have requested the opinion of this office as to the circumstances under which certified supervisory personnel must be present in various areas of underground coal mines. More specifically, you have queried whether a Timber Foreman, Track Foreman or Recovery Foreman overseeing the work of a crew which is not in the working section of the mine has to be a person certified pursuant to KRS Chapter 351 to act as a supervisor.
Supervisory personnel is defined in KRS 351.010(t) as follows:
"'Supervisory personnel' shall mean a person or persons properly certified under the provisions of this chapter to assist in the supervision of a portion or the whole of the mine or of the persons employed therein."
Persons certified under KRS Chapter 351 include mine inspectors, electrical inspectors, mine safety instructors, assistant mine foremen, mine foremen, fire bosses, shot firers, and . . . "other mining specialities as established by the board. . ." KRS 351.120(1). Only mine foreman and assistant mine foreman are supervisory positions. Therefore, only persons certified as mine foremen or assistant mine foremen constitute "supervisory personnel" as defined in KRS 351.010(t) until some other supervisory specialty is created by the Board. 1
Kentucky Revised Statute 351.120(10) states:
"A member of the supervisory personnel shall be present at the working section except in cases of emergencies at all times employees under his supervision are at the working section on coal-producing shifts."
This section at first blush appears to speak to the question, but in reality is quite limited in scope. First of all, it only applies to coal-producing shifts. Second, it only applies to the "working section" of the mine. "Working section" is defined in KRS 352.010(gg) as follows:
"'Working section' means all areas of a coal or clay mine from the loading point to and including the working faces."
The working face is the area in which work of extracting coal from its natural deposit in the earth is performed. KRS 352.010(ee). The "loading point" is the point where coal is transferred into cars or conveyors to be transported out of the mine. U.S. Bureau of Mines, A Dictionary of Mining, Mineral and Related Terms, 1968.
Thus there is a large part of a mine between the loading point and the surface to which KRS 351.120(10) does not apply. Additionally, supervisory personnel in case of emergencies do not have to be present while workers are in the working section. Therefore, if supervisory personnel are required to be present with work crews which are not in the working section, the requirement must be found in some provision other than KRS 351.120(10).
There are a number of statutory requirements relating to supervision of personnel in underground mines. KRS 352.330, 352.340, 352.350, 352.360, 352.030(4) and 805 KAR 2:010(13) set out some of the supervisory duties of the mine foreman. KRS 352.320(2) empowers the mine foreman to utilize assistants to the mine foreman when the workings are so extensive that the mine foreman cannot personally carry out the duties required of him by law. These persons must be certified mine foremen or assistant mine foremen as discussed previously.
If it is possible to fulfill the supervisory requirements enumerated above and all other statutory and regulatory requirements of the Commonwealth without the personal presence of a member of the "supervisory personnel" , then no member of the "supervisory personnel" is required by statute to be present with a crew working outby the loading point of an underground mine. No statute or regulation of the Commonwealth appears to specifically require by its terms such a presence of a member of the "supervisory personnel. " However, KRS 351.070(13) empowers the Commissioner of the Department of Mines and Minerals to adopt such regulations as he deems necessary and suitable to implement KRS Chapter 351. If the commissioner determined after public hearing that to implement KRS Chapter 351 crews outby the loading point require the presence of a member of the supervisory personnel, he could adopt regulations to that effect.
Footnotes
Footnotes
1 A fire boss may act in an emergency as a mine foreman or assistant mine foreman, and therefore meet the test of "supervisory personnel. " KRS 351.120(4).