**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

Officeof Administrative Law Judges

1331Pennsylvania Avenue, N.W., Suite 520N

Washington,D.C. 20004

 

 

|                                                                                                                                 |                                      |
|--------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------|
| SECRETARY OF LABOR,                                                                                                                  | :     CIVIL PENALTY PROCEEDING            |
| MINE SAFETY AND HEALTH                                                                                                               | :                                         |
| ADMINISTRATION (MSHA),                                                                                                               | :     Docket No. PENN 2022-0011           |
| Petitioner,                                                                                                                          | :     A.C. No. 36-07416-543019            |
|                                                                                                                                 | :                                         |
| v.                                                                                                                                   | :                                         |
|                                                                                                                                 | :                                         |
| CONSOL PENNSYLVANIA COAL       COMPANY LLC,

                                    Respondent.                                         | :     

:   Mine: Enlow Fork Mine

:      |
|                                                                                                                                 |                                      |

**DECISION**

 

Appearances:  SharonH. McKenna, Esq., Office of the Solicitor, U.S. Department of Labor,Philadelphia, Pennsylvania, for Petitioner;

Patrick W. Dennison, Esq., Fisher& Phillips LLP, Pittsburgh, Pennsylvania, 

for Respondent.

 

Before:                        Judge Paez

 

This docket isbefore me upon the Petition for theAssessment of Civil Penalty filed by the Secretary of Labor pursuant to section105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),30 U.S.C. § 815.[1]In dispute is a single significant and substantial(“S&S”)[2]section 104(a) citation issued to CONSOL Pennsylvania Coal Company, LLC for analleged violation of an escapeway standard.

 

To prevail, the Secretary mustprove any cited violation “by a preponderance of the credible evidence.” *Inre: Contests of Respirable Dust Sample Alteration Citations*, 17 FMSHRC1819, 1838 (Nov. 1995) (citing *Garden Creek Pocahontas Co.*, 11 FMSHRC2148, 2152 (Nov. 1989)), *aff’d sub nom.*,*Sec’y of Lab. v. KeystoneCoal Mining Corp.*, 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden ofproof requires the Secretary to demonstrate that “the existence of a fact ismore probable than its nonexistence.” *RAG Cumberland Res. Corp.*, 22FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marksomitted), *aff’d*, 272 F.3d 590 (D.C. Cir. 2001).  

 

**I.  STATEMENT OFTHE CASE**

 

Citation No. 9204482 alleges CONSOLviolated section 75.380(d)(1) by failing to maintain an escapeway in safecondition to assure passage of anyone, including disabled persons. 30 C.F.R.§ 75.380(d)(1). The Commission has held the phrase “maintained in a safecondition” to mean an escapeway must allow miners to “expeditiously escape adangerous underground environment in an emergency.” *Am. Coal Co.*, 29FMSHRC 941, 950 (Dec. 2007). Specifically, the Secretary alleges six hoses protrudingfrom a pump car obstructed the escapeway, thus preventing escaping miners fromeffectively and safely using the escapeway in the event of an emergency. TheSecretary proposed a penalty of $2,844.00. CONSOL timely answered the petitionand contests the issuance of the citation. 

 

I held an in-person hearing in Pittsburgh,Pennsylvania. At the hearing, the Secretary presented testimony from MSHAInspector Allan Jack, and CONSOL presented testimony from its Safety Inspector,Joseph Bartolotto. One of CONSOL’s witnesses, Steven Barr, LongwallCoordinator, was ill on the date of the original hearing and unable to attend. Withthe agreement of counsel, I held a remote Supplementary Hearing the followingweek to elicit his testimony. Both parties submitted post-hearing briefs andreply briefs.

** **

**II.  ISSUES**

** **

The Secretary argues Citation No. 9204482must be upheld as S&S and is the result of at least a moderate degree ofnegligence. (Tr. 21:10–13; Sec’y Post-hr’g Br. 11–23.) CONSOL contests the factof the violation, the S&S designation, the negligence determination, and thepenalty. (Resp’t Post-hr’g Br. 5–25.) Accordingly, the following issues are beforeme: (1) whether CONSOL violated the provisions of section 75.380(d)(1) asalleged in Citation No. 9204482; (2)whether the citation was properly designated as S&S; (3) whether CONSOL’snegligence was correctly determined as “moderate”; and (4) whether the assessmentof a penalty is appropriate.

 

            For the reasons set forth below, Citation No. 9204482is **AFFIRMED** as written.

** **

**III.  FINDINGS OFFACT**

** **

**A.        Parties’ Stipulations**

** **

At the hearing,the parties, in a joint exhibit, stipulated to the following items, verbatim:

 

1.  The Respondent was an “operator” as defined in § 3(d) of the Federal MineSafety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30U.S.C. § 802(d), at the mine at which the Citation at issue in thisproceeding was issued. 

2.   EnlowFork Mine is a “mine” as defined in §3(h) of the Mine Act, 30 U.S.C. § 802(h).

3. Operations of the Respondent at the mine at which the Citations were issuedare subject to the jurisdiction of the Mine Act. 

4. This Citation [Penalty][3]proceeding is subject to the jurisdiction of the Federal Mine Safety and HealthReview Commission and its designated Administrative Law Judges pursuant toSections 105 and 113 of the Mine Act.

5. Enlow Fork Mine is owned by the Respondent. 

6. Payment of the total proposed penalty of $2,844.00 for the one citation inthis matter will not affect the Respondent’s ability to continue in business. 

7. The individual whose name appears in Block 22 of the Citation in contest,Allan Jack, was acting in an official capacity and as an authorizedrepresentative of the Secretary of Labor when the Citation was issued. 

8. Citation No. 9204482 contained in Docket No. PENN 2022-0011 was issued andserved by a duly authorized representative of the Secretary of Labor upon anagent of Respondent at the date, time, and place stated in the Citation, asrequired by the Act. 

9. Exhibit “A” attached to the Secretary’s Petition in Docket No. PENN 2022-0011 containsan authentic copy of Citation No. 9204482 with all modifications or abatements,if any.

 

(Jt. Ex. 1.)

 

**B.        Operations at theEnlow Fork Mine**

** **

CONSOL operatesthe Enlow Fork Mine in Washington County, Pennsylvania and mines bituminous coalunderground using the longwall retreat mining process. (Sec’y Post-Hr’g Br. 6;Tr. 41:15–19, 43:13–15, 112:19–113:5.) Enlow Fork Mine is considered a gassymine because it liberates high amounts of methane requiring ventilation spotchecks every five days. (Tr. 55:2–24; II Tr. 38:21–39:23.) Ignitions haveoccurred at this mine where an accumulation of coal dust or methane ignitedwith one such ignition resulting in an explosion knocking out ventilationcontrols and changing the air flow. (Tr. 56:1–57:25.) 

Three differententries provide access underground to the longwall sections of the mine: theprimary escapeway, the No. 2 Entry (secondary escapeway), and the belt entry. (Tr.66:9–20, 220:13–15; II Tr. 9:25–10:4.) On a daily basis, most of the miningcrew travel along the No. 2 Entry to reach the working face. (Tr. 132:20–134:7.)The preshift examiner also travels the No. 2 Entry. (Tr. 133:14–22.) The No. 2 Entryis also called the track entry, due to the track which traverses down one sideof this entry. (Tr. 66:17–20, 68:8–69:5, 86:10–18.) Looking toward the mineexit, the track traverses the No. 2 Entry mostly along the right side,hereinafter the “track side” (Tr. 95:7–21; II Tr. 40:9–23), so miners can walkalong the left side, hereinafter the “rib side.” (Tr. 77:18–20, 95:7–18; II Tr.40:9–23.) A lifeline hangs on the rib side paralleling the track. (Tr. 67:15–17,141:18–19.)Railcars, known as “pump cars,”transport supplies along the track to the working face. (Tr. 66:17–20,68:8–69:5, 86:10–18.) One such pump car supplies “pressurized emulsion” throughits six hoses for the operation of the longwall. (Tr. 69:1–23, 86:13–18;II Tr. 11:11–22:18; Ex. R–7.) Thepump car remains stationary on the track until the longwall face retreats fromthe original working face to a new crosscut, at which time the pump car moveswith the longwall. (Tr. 109:9–16, 113:1–5, 115:13–15.) Because the timing ofthe longwall’s retreat depends on the rate of mining, the timing of the pumpcar’s move also varies based on the rate of mining. (Tr. 109:9–11, 112:19–113:18,114:1–16, 156:22–24, 217:9–15.) The pump car moves on average once per week. (Tr.114:4–25.)

** **

In the event of an emergency, CONSOLinstructs miners to don their ten-minute Self-Contained Self-Rescuers (“SCSRs”)—oxygenmasks that miners carry underground which allow a miner to breathe for up toten minutes in smoky or low-oxygen conditions. (Tr. 102:16–22, 107:4–8, 125:22–126:4.)Miners also use an escapeway lifeline containing directional cones indicatingthe mine’s exit merely through touch. (Tr. 130:10–19, 227:16–23, 258:6–10.) CONSOLteaches miners to use the lifeline to guide them to a designated location—usuallyan emergency cache of longer-use SCSRs and tethers—and then to exit the mine. (Tr.102:9–13.) The longer-use SCSRs allow miners to breathe in smoky or oxygen-scarceconditions for up to an hour. (Tr. 102:13–22, 125:22–126:4.) CONSOL instructsthe miners to use the tethers (ropes) to hook themselves together in anemergency, so if a miner loses the lifeline another miner can quickly guide theminer back. (Tr. 102:1–103:12, 201:21–22, 202:23–203:3, 249:9–13.) As requiredby MSHA, CONSOL trains miners on specific emergency procedures in yearly smokeroom trainings where CONSOL fills a room with smoke to simulate an emergency,and miners navigate obstacle courses. (Tr. 34:1–20, 244:1–252:25; II Tr. 49:23–50:4.)

 

**C.        Conditions at Intersection of Entry No. 2and Crosscut 15.5 on August 17, 2021**

 

Crosscut 15.5 of the No. 2 Entry (secondaryescapeway) is sixteen feet wide and eight feet high. (Tr. 75:21–24, 84:25–85:16,164:19–21; Ex. P–4.) The pump car measures ten to twelve feet wide, leavingfour to six feet between the pump car and the rib side of the No. 2 Entry. (Tr.85:4–13, 86:19–21, 135:25–136:2, 164:19–25; Ex. P–4.) On August 17, 2021, sixrubber, high-pressure (Tr. 225:8–12) hoses protruded from the side of the pumpcar and extended into the walkway of the escapeway, as represented by the redlines in Exhibit R–7.[4](Tr. 66:18–23, 74:4–20, 87:15–88:2, 220:22–221:2; II Tr. 9:25–10:15; Ex. R–7.) Atthe time, the pump car sat across from crosscut 15.5 (Tr. 119:7–17; II Tr. 14:6–15:18)allowing the hoses to extend across the No. 2 Entry and into Crosscut 15.5 tolink up to the longwall. (Tr. 157:15–20.) 

 

Two of the six hoses sat rigidly onthe mine floor and varied in size but spanned two to four inches in diameter,roughly the size of a baseball or softball. (Tr. 82:11–18, 164:16–17; II Tr.45:24–47:1.) These two hoses (the hoses closest to the working face) were lyingacross the mine floor (Tr. 74:4–15), while the remaining four hoses protruded fromthe pump car extending in the air into the escapeway. (Tr. 73:18–23*,*74:4–15;II Tr. 45:6–23; Ex. P–2-2.) Measuring directly below the lifeline (Tr. 79:9–21),these four protruding hoses hung at heights of 29”, 28”, 15”, and 12” from themine floor, depending on the height from which each protruded from the pumpcar, as depicted in Exhibit P–2. (Tr. 73:18–23*,*74:4–15, 169:1–24; IITr. 45:6–23; Ex. P–2-2.) These protruding hoses extended across the full widthof the No. 2 Entry and into Crosscut 15.5, eventually falling onto the minefloor approximately eight or ten feet from the pump car. (Tr. 82:14–18,83:11–84:3, 91:11–23.) Measuring perpendicularly to the direction the hoses protruded,these four suspended hoses spanned six feet along the walkway of the No. 2Entry. (Tr. 74:4–6.) This means a miner in the escapeway would need to traverseover six feet of protruding hoses. (Tr. 74:4–6.) Thus, a miner attempting toescape in the event of an emergency would first encounter the two rigid pump hoses lying on the mine floor, then thefour suspended hoses at heights of 15”, 29”, 28”, and 12” from the mine floor,respectively, over six feet of the escapeway. (Tr. 81:5–82:10.)

 

The No. 2 Entry (escapeway) lifelinehung from the roof approximately 66 inches above the mine floor (Tr. 75:15–18;II Tr. 25:17–21, 47:6–10; Ex. R–7) on the rib side directly above the pump carhoses. (Tr. 67:15–17, 74:19–20, 219:17–220:12, 233:12–14; II Tr. 48:7–11.) Whentugged away from the rib, the escapeway’s lifeline provided about six to seveninches of slack before getting caught on power cables, preventing it fromstretching into Crosscut 15.5 where the pump hoses dipped to the mine floor. (Tr.71:1–8, 83:13–84:3, 88:21–89:13, 171:1–173:3; II Tr. 23:21–24:11, 48:12–16.) 

** **

**D.        MSHA Inspection, Issuance of Citation No. 9204482,and Abatement**

 

MSHA InspectorAllan Jack arrived at the Enlow Fork Mine on August 17, 2021, for a regular semiannualroof control inspection. (Tr. 44:8–19, 48:10–25.) According to Inspector Jack,Enlow Fork Mine experienced a reduced rate of mining that day due to roof issues.(Tr. 114:4–7, 194:1–11, 270:1–16.) Joseph Bartolotto, Safety Inspector forCONSOL, escorted Inspector Jack underground to Crosscut 15.5. (Tr. 59:17–61:2,70:10–15; Exs. P–2, R–1.) Using his cap light (Tr. 84:4–16), Inspector Jackobserved hoses protruding from the pump car, crossing the width of the No. 2Entry (escapeway), and proceeding into Crosscut 15.5, whereby he issuedCitation No. 9204482. (Tr. 70:15–23, 74:19–20, 79:9–21, 83:11–19, 93:15–94:13,100:16–101:19.) 

 

In the narrative portion of CitationNo. 9204482, Inspector Jack wrote: 

 

The alternate escapeway was notbeing in a safe condition

to always assure passage of anyonein the G2 longwall

section (MMU-011-0) at 15.5crosscut in the No.2 entry.

Longwall pump hoses were hinderingthe escapeway

because they were installedbetween 29 and 12 inches

off the mine floor where thelifeline was coursed over

the hoses causing a trippinghazard to those who have to

use the escapeway.

 

Standard 75.380(d)(1) was cited 4times in two years at

mine 3607416 (4 to the operator, 0to a contractor).

 

(Ex. P–1.)

            Inspector Jack issued this citation at 10:40a.m. for failure to maintain the escapeway in a safe condition per section75.380(d)(1). (Tr. 119:23–120:25, 149:15.) He foundthe violation to be S&S, reasonably likely to lead to an injury resultingin lost workdays or restricted duty, and due to CONSOL’s moderate negligence. (Tr.105:1–11, 129:17–24, 130:20–25; Ex. R–1.) Inspector Jack determined the hazardin question could affect three persons because miners are usually tetheredtogether during an emergency escape, so when one miner trips and falls on ahose that miner is “going to pull a couple people down . . . behind him becausethey’re all connected together.” (Tr. 101:2–16, 122:21–124:1–15.)Inspector Jack noted that the lifeline went directly over the six hoses at theheights documented in the citation. He determined that miners could not avoid thehoses without letting go of the lifeline because the lifeline contained littleslack and was “bow string tight.” (Tr. 79:13–21, 259:5–20.) Letting go of alifeline in smoky conditions or poor visibility could result in a minerbecoming disoriented, wandering down a crosscut, and being unable to find thelifeline again. (Tr. 108:9–14.)

 

Toabate the violation and allow Inspector Jack to terminate the citation, CONSOL movedthe No. 2 Entry lifeline into Crosscut 15.5 where the hoses laid on the minefloor due to their greater distance from the pump car. (Tr. 93:17–22,135:12–141:22; Ex. P–1.) To achieve this, CONSOL added fifteen feet of slack tothe lifeline. (Tr. 141:7–15.) This resulted in the lifeline running along the No.2 Entry (escapeway) rib, extending about eight feet into the opening of Crosscut15.5 where all six hoses laid on the mine floor, providing miners easier passage,and then continuing along the rib side of the No. 2 Entry on the opposite cornerof Crosscut 15.5. (Tr. 177:15–24.) After moving the lifeline, CONSOL placedrock dust bags in front of and between the hoses to create a small bridge overthem. (Tr. 93:17–22, 135:12–141:22; Ex. P–1.) This approximately two-foot-wide (IITr. 29:18–24) “rock dust bag” bridge sat in Crosscut 15.5, approximately eightto ten feet from where the hoses exited the pump car. (Tr. 83:17–84:3, 142:18–20;II Tr. 86:9–87:18.) This “rock dust bag” bridge stood approximately a foot highat its highest point. (Tr. 139:23–140:4.)

** **

**IV.  ADDITIONALFINDINGS OF FACT, PRINCIPLES OF LAW,**

**ANALYSIS, AND CONCLUSIONSOF LAW**

** **

**A.        30C.F.R. §****75.380(d)(1)**–**F****ailureto Maintain Escapeway in Safe Condition**

 

Per section 75.380(d)(1) thefollowing is required of escapewaysin bituminous and lignite mines: “Each escapeway shall be [m]aintainedin a safe condition to always assure passage of anyone,including disabled persons.” 30 C.F.R. § 75.380(d)(1). The Commission defines“maintained in a safe condition,” to mean escapeways that allow miners to “expeditiouslyescape a dangerous underground environment in an emergency.” *Am. Coal Co.*,29 FMSHRC 941, 950 (Dec. 2007) (“[T]he test with respect to the use of anescape route is not whether miners have been safely traversing the route undernormal conditions, but rather the effect of the condition of the route onminers’ ability to *expeditiously* escape a dangerous undergroundenvironment in an emergency.”) (emphasis added) (citing *Maple Creek Mining,Inc.*, 27 FMSHRC 555, 560 (Aug. 2005)); *see**Maple Creek Mining, Inc.*,27 FMSHRC 555, 562–63 (Aug. 2005) (upholding the ALJ’s finding that“the conditions created a slipand fall hazard that precluded swift passage through that portion of theescapeway” in affirming the violation);*see, e.g.*,*Mill Branch Coal Corp.*, 34FMSHRC 2090 (Aug. 2012) (ALJ) (“There is no dispute that escapeways are neededfor miners to *quickly* exit an underground mine and that impediments to adesignated escapeway may prevent miners from being able to do so.”) (emphasisadded); *see also* 61 Fed. Reg. 9764, 9810–11 (Mar. 11,1996) (preamble to section 75.380 stating purpose is “to enableminers, including disabled persons, to escape quickly in an emergency” and “nodelay in escape assures that there is no reduction in safety.”).

 

The Secretary alleges that CONSOL violated section 75.380(d)(1), becauseminers attempting to use the escapeway in an emergency would need to navigateover the hoses protruding across the No. 2 Entry. Escaping miners would firstencounter the two rigid hoses lying on the mine floor and then attempt tohurdle the 15”-high hose, followed by the 29”-high hose, the 28”-high hose, andfinally the 12”-high hose over the course of six feet. (Tr. 81:5–82:10.) Inemergency conditions,[5]Inspector Jack determined the “first miner in the [line] would hit these hoses,would trip, would pull two or three miners behind him over as he falls.” (Tr.104:11–24, 107:9–22.) Inspector Jack noted that subsequent miners would alsostruggle because once one miner fell, others would stack on top of the firstminer, creating a chain reaction. (Tr. 122:21–123:2, 124:1–15.) When minerstrip, they may sustain injuries from the fall itself, as well as lose valuabletime needed to escape from the mine. (Tr. 108:9–14, 128:19–25.) 

 

CONSOL argues thatno violation of section 75.380(d)(1) occurred. CONSOL points to section75.380(d)(4)(iii) which mentions a “stretcher test” and asserts that disabledminers could safely escape because a stretcher could fit through the escapewayand, thus, no escapeway violation exists. (Resp’t Post-hr’g Br. 10, 11, 23.) Notonly is this argument inapposite but it misinterprets and misapplies theCommission’s stretcher test rule. The stretcher test under section 75.380(d)(4)requires that a stretcher with an injured miner be able to fit through theescapeway. 30 C.F.R. § 75.380(d)(4)(iii). Inspector Jack issued Citation No. 9204482for hoses obstructing the escapeway, not for an insufficiently wide escapeway—whichthe exceptions like the stretcher test under section 75.380(d)(4) are meant toaddress. Indeed, the Commission found that sufficient width, while necessaryfor a safe escapeway, is insufficient, on its own, to assure the safe escape ofdisabled persons. *Maple Creek Mining, Inc.*, 27 FMSHRC 555, 560 (Aug.2005) (finding the escapeway inadequate where additional miners were requiredto guide a stretcher through the escape route by pointing out obstacles alongthe way.) While the parties here agree the No. 2 Entry (escapeway) was wideenough for a stretcher, it did not assure safe passage for a stretcher. (Tr.167:2–8.) Inspector Jack emphasized that if a team ofminers needed to carry a miner on a stretcher, the team’s unexpected navigationover the protruding and uneven hoses would create a “mess,” by endangeringthose carrying the stretcher and delaying medical attention for the injuredminer. (Tr. 151:10–11.) I am not persuaded by CONSOL’s argumentregarding the stretcher test and reject it as misplaced. 

 

Rather than addressing the safety issuecreated by the protruding hoses, CONSOL makes arguments as to why section 75.380(d)(1)should not apply under the circumstances. (Resp’t Post-hr’g Br. 5–7.) Amongthese, CONSOL argues for no violation because: (1) the Secretary cited thewrong standard; (2) the Secretary added requirements to the regulation; (3) anexception to the standard applies; and (4) abatement did not improve thecondition. (*Id.*)

 

First, CONSOL argues that theSecretary cited the wrong standard and should instead have cited a lifelinestandard. (Resp’t Post-hr’g Br. 12.) However,the Commission held that whether an alternate standard could have been citedfor a condition does not negate the applicability of the cited standard. *CONSOLPa. Coal Co.*, 44 FMSHRC 691, 696 n.10 (Dec.2022) (holding “[w]hether or not a different subsection of the standard wouldhave also been applicable, has no bearing on whether the Secretary establisheda violation of [the cited standard]. . . .”). Here, the position of thelifeline has no bearing on the fact that hoses protruded from the pump carcreating an unsafe condition by hampering passage along the No. 2 Entry(escapeway) that could injure and/or delay miners from expeditiously escaping adangerous underground environment in the event of an emergency.

 

Second, CONSOL asserts that theSecretary added requirements to section 75.380(d)(1), arguing Inspector Jackissued the violation for the lifeline hanging over the pump car hoses, which addsrequirements on the placement of the lifeline. (Resp’t Post-hr’g Br. 8, 12; Resp’tReply Br. 5.) Yet again, CONSOL’s argument strains logic because Inspector Jackdid not issue the violation for the presence of the lifeline above the hosesbut rather because the hoses created unsafe conditions for use of the escapewayin the event of an emergency.[6](Ex. P–1.)

 

Third, CONSOL argues that noviolation existed because the pump car hoses were “essential to the ongoing operation of [the] longwall section”and, therefore, the exception under section 75.380(d)(4)(iv)[7]applies. (Tr. 153:5–156:11; II Tr. 65:21–25; Resp’t Post-hr’g Br. 10, 11; Resp’tReply Br. 2–4.) However, CONSOL mischaracterizes section 75.380(d)(4)(iv) inthat a plain reading reveals that such “essential” equipment only provides anexception to the requirement that an escapeway be maintained to a width of sixfeet (which is not an issue in this case). 30 C.F.R. § 75.380(d)(4)(iv).Section 75.380(d)(4)(iv) is not an exception to the requirement that theescapeway be maintained in a “safe condition,” as required by section 75.380(d)(1).Thus, the “essential” nature of the hoses to the longwall operation does notexcuse CONSOL from ensuring the pump car hoses are situated in a manner so theescapeway is maintained in a safe condition to assure passage expeditiously inthe event of an emergency. *See* 30 C.F.R. § 75.380(d)(1). Consequently,the pump car hoses can remain in the escapeway *so long as they are situatedin a “safe condition*,” which was not the case here as described above. (Tr.153:5–9, 164:2–7.)

 

Finally, CONSOL contends noviolation existed because abatement did not improve the hazard, as the rockdust bags themselves could trip miners or cause miners to hit their heads. (Resp’tPost-hr’g Br. 15–17, 24; Resp’t Reply Br. 4–6, 24; II Tr. 28:14–29:7, 31:8–21.)The Commission, however, has rejected such arguments. *See CONSOL Pa. CoalCo.*, 44 FMSHRC 691, 696 (Dec.2022) (holding “[w]hether or not abatement occurs has no bearing on theunderlying violation . . . .”); *Western Indus. Inc*., 25 FMSHRC 449,453 (Aug. 2003) (holding the abatement method is irrelevant in determiningwhether a violation occurred). Though Inspector Jack observed that theapproximately one-foot-tall bridge is “still a little rough,” he opined “it’s alot better than the condition we found.” (Tr. 139:19–140:17.) Indeed, CONSOL’switness Steven Barr confirmed that he had used similar “rock dust bag” bridgesin the past. (II Tr. 28:1–11.) Creating a bridge over the hoses, as well as reroutingthe lifeline into Crosscut 15.5 to reduce tripping hazards and maintain a safe passagewayout of the mine, improved the conditions along the escapeway that miners wouldencounter in the event of an emergency. Thus, I reject CONSOL’s argument that abatementfailed to reduce the hazard, and I find CONSOL’s other arguments altogether unpersuasive.

 

In considering the fact of aviolation, I found Inspector Jack’s testimony at hearing to be well reasonedand based upon his many years of experience as a miner and as an inspector ofunderground coal mines. In applying the facts to the applicable standard andCommission case law, I determine that CONSOL violated section 75.380(d)(1). Thepump car hoses were situated in such a way as to impede safe passage of persons,including disabled persons, from expeditiously escaping the mine through theNo. 2 Entry (escapeway) during emergency conditions. Therefore, I conclude thatCONSOL violated section 75.380(d)(1) by failing to maintain the escapeway in asafe condition to always assure passage of anyone.

** **

**B.        Significant and Substantial Determination**

** **

A violation is S&S “if, based uponthe particular facts surrounding that violation, there exists a reasonablelikelihood that the hazard contributed to will result in an injury or illnessof a reasonably serious nature.” *Cement Div., Nat’l Gypsum Co.*, 3 FMSHRC822, 825 (Apr. 1981). To establish an S&S violation, the Secretary mustprove: 

 

(1) the underlying violation of amandatory safety standard; (2) the violation wasreasonably likely to cause the occurrence of the discrete safety hazard againstwhich the standard is directed; (3) theoccurrence of that hazard would be reasonably likely to cause an injury; and(4) there would be a reasonable likelihood that the injury in question would beof a reasonably serious nature. 

* *

*Peabody Midwest Mining*, 42 FMSHRC 379, 383 (June2020) (citing *Newtown Energy*, 38 FMSHRC 2033,2037–38 (Aug. 2016));*Mathies CoalCo.*, 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); *see also Buck CreekCoal, Inc. v. Fed. Mine Safety & Health Admin.*, 52 F.3d 133, 135–36(7th Cir. 1995) (affirming the application of the *Mathies* criteria); *AustinPower, Inc. v. Sec’y of Lab.*, 861 F.2d 99, 103–04 (5th Cir. 1988) (affirmingthe application of the *Mathies* criteria).

** **

**1.             ****Underlying Violation of a Mandatory Safety Standard**

 

To establish the first element ofthe *Mathies* test, the Secretary must prove an underlying violation of amandatory safety standard. I have determined that CONSOL violated section 75.380(d)(1),because it failed to maintain the secondary escapeway in a safe condition toalways assure passage of anyone, including disabled persons, and assureexpedient passage in the event of an emergency. *See* discussion *supra*Part IV.A. Thus, I determine that the Secretary has satisfied the first elementof the *Mathies* test. 

** **

**2.             ****Likelihood of Causing theOccurrence of the Discrete Safety Hazard Against**

**Which theStandard Is Directed**

 

Forthesecond *Mathies* element, the Secretary must establish that “there existsa reasonable likelihood of the occurrence of the hazard against which themandatory safety standard is directed.” *Newtown Energy*, 38 FMSHRC 2033,2038 (Aug. 2016). Here, the hazard is the possibility of miners tripping on orfalling over the hoses in the escapeway during an emergency, resulting in injuryand/or delayed exit from the mine. (Tr. 129:17–24.) The relevant analysis iswhether miners could expeditiously traverse the hoses during emergency conditions.*See**Spartan Mining Co.*, 35 FMSHRC 3505, 3508–09 (Dec. 2013) (holdingthat S&S for escapeway citations must be considered in the context of anemergency in affirming the ALJ’s determination of significant and substantialviolation of 30 C.F.R. section 75.380(d)(1)).

 

Inspector Jack attested that during emergencies miners act unpredictably,and emergencies alter the environmental conditions that miners face. (Tr.107:12–13, 123:9–11.) Specifically, Inspector Jack stated that during emergencysituations, miners may panic. (Tr. 107:12–13, 123:9–11.) He stated, “[w]henyou’re in an emergency event like that people act differently. They don’t thinkstraight. They’re in a panic. The only thing they want to do is get out . . . thatcould lead to people running, pushing, shoving” which “sometimes . . . come[s]at the cost of other individuals who are escaping” at the same time. (Tr.125:4–17.) CONSOL’s witness Steven Barr[8]noted miners may temporarily lose their sense of hearing (II Tr. 49:2–22) anddid not dispute the hoses could impede miners. (II Tr. 49:23–54:11.) Minersfeel disoriented (Tr. 108:9–14), panic (Tr. 107:12–13, 123:9–11), feel confused(Tr. 257:9–12), or may lose their vision due to blackout conditions. (Tr.123:9–25, 249:20–23.) CONSOL’s Joe Bartolotto who worked for CONSOL for sevenyears noted that miners would not be able to see more than two feet in front oftheir face in smoky conditions. (Tr. 212:23– 213:1, 249:20–23.) Inspector Jack addeda miner’s cap light would be “useless” if it was smoky. (Tr. 123:9–25.) 

Inspector Jack has worked for over twenty-fouryears in the mining industry. (Tr. 38:17–20.) He has worked for MSHA for thelast 15 years, including eight years as a coal mine inspector and seven yearsas a roof control specialist. (Tr. 29:7–30:17.)Before his employment with MSHA, Inspector Jack worked at CONSOL’s Enlow ForkMine as an underground miner for approximately eight years (Tr. 32:1–2,33:14–19), including working on longwalls and on the installation of a bridgeover pump car hoses. (Tr. 191:10–192:12.) For his General Mine Servicetraining, Inspector Jack received instruction on emergencies, escapeways, andnavigating the mine. (Tr. 32:20–33:12.) ConsideringInspector Jack’s extensive experience and credible insights on the witnessstand, I give great weight to his testimony. 

 

CONSOL argues that miners wouldknow of the hoses in Crosscut 15.5 and be able to navigate them. (Resp’t Post-hr’gBr. 22.) But according to Inspector Jack, miners escaping an emergencysituation would likely be panicky and somewhat disoriented (Tr. 107:12–13,108:9–14, 123:9–25, 249:20–23, 257:9–12) and would not likely know they wereapproaching the hoses at Crosscut 15.5. (Tr. 153:1–157:25, 224:15–225:7; Ex.R–7; Resp’t Post-hr’g Br. 8, 9, 22.) The miners would be tethered together and wouldcontact the protruding hoses at heights of 12” to 29” off the mine floor. InspectorJack, who is 5’10” tall (Tr. 78:17–79:2, 169:6–8), observed that the suspended29” hose reached his mid-thigh, the 15” hose hung just below his kneecap, andthe twelve-inch hose hung mid-shin. (Tr. 80:6–19.) Therefore, the positions ofthe hoses would likely trip miners and, as Inspector Jack observed, the “firstminer in the [line] would hit these hoses, would trip, would pull two or threeminers behind him over as he falls.” (Tr. 104:11–24, 107:9–22.) Because minersare tethered together, when one miner falls, other miners will “stack,” whereone miner falls and the next falls on top of the first miner, and the chainreaction continues. (Tr. 122:21–123:2, 124:1–15.) 

 

Even if the miners successfullynavigate past one of the hoses, the miners must successfully traverse over fivemore hoses of differing heights spanning six feet of the escapeway (Tr. 82:8–10,83:6–10), like hurdling at a track meet. Any one of the obstructions couldreasonably trip up any of the individual miners, likely bringing down otherminers and delaying the entire group. When miners fall, they may sustaininjuries from the fall itself. (Tr. 107:23–108:14.) Even if they were to comethrough a fall unscathed, a miner’s SCSR could be torn from their face by theforce of the fall or collision with other miners, or they could let go of and losethe lifeline. (Tr. 108:9–14, 128:23–25.) Any of these scenarios would delay theminers from expeditiously escaping the mine. Miners losing hold of the lifelinewould likely lose time struggling to find it again due to poor visibility or beingdisoriented and, if they were lucky enough to find the lifeline, would nonethelesslose time feeling around in the dark searching for it. (Tr. 108:9–14.) Anydelay from stumbling or searching for the lifeline or short-term SCSR could preventa miner from reaching the cache of long-term SCSRs before running out of timeon the ten-minute SCSR they originally donned. (Tr. 125:22–126:3, 128:21–22.)

 

CONSOL posits that an emergencywould not likely occur because Inspector Jack found no raised methane levels atthe time of his inspection. (Tr. 197:25–198:7; *see* Exs. R–3, R–4.) However,the Commission has found the lack of raised methane levels irrelevant to theS&S analysis because the existence of an emergency is assumed. *Cumberland Coal Res.*, 33 FMSHRC 2357, 2366 (Oct.2011) (overturning ALJ’s non-S&S determination for violations of the evacuationstandard under section 75.380(d)(7)(iv) where ALJ improperly consideredtestimony regarding the likelihood of a mine fire or explosion).

 

CONSOL attemptsto focus this case on the lifeline. (Resp’t Post-hr’g Br. 5–6, 8, 11.) Asdiscussed above, the lifeline is irrelevant to the fact of a violation undersection 75.380(d)(1). Yet, the Commission does consider the positioning of alifeline in relation to the escapeway when analyzing whether an escapewayviolation is S&S. *See Mill Branch Coal Corp.*, 37 FMSHRC 1383, 1394(July 2015) (considering fact that obstructions were directly under thelifeline in upholding as S&S a violation of section 75.380(d)(1)). Here,the lifeline hung directly above the pump car hoses. (Tr. 79:9–21.) Miners could not circumvent the hoses without letting goof the lifeline because the lifeline contained little slack and was “bow stringtight.” (Tr. 79:13–21, 259:5–20.) Thus, miners could not both hold onto thelifeline—the “saving grace to getting outside”—and circumvent the hoses. (Tr.130:16–19; *see* Resp’t Post-hr’g Br. 4.)

 

Given therecord as a whole, I determine it is reasonably likely that miners—tetheredtogether in emergency conditions—would trip or fall over the hoses impedingtheir passage, which would delay their quick exit from the mine. Therefore, Idetermine theviolationwas reasonably likely to cause the occurrence of the discrete safety hazardagainst which the standard is directed, andthe Secretary has satisfied the second element of *Mathies*.

** **

**3.             ****Likelihood the Occurrence of the Hazard Would Cause Injury**

** **

Regarding thethird *Mathies* element, the Secretary must demonstrate a reasonablelikelihood that the occurrence of the hazard would result in an injury. InspectorJack stated, and CONSOL’s witnesses did not refute, that tripping over thehoses, would “reasonably likely cause an accident, and that would be a trip andfall, breaking bones, tearing a rescuer off, sprains, [and] strains.” (Tr. 104:25–105:3,107:9–22, 108:1–2, 121:15–122:2, 151:16–17.) Inspector Jack also noted thatmine disasters, whether it be a fire or explosion, emit high concentrations ofcarbon monoxide. (Tr. 122:4–5, 123:9.) If a miner loses his SCSR, even for ashort period, the miner could reasonably“beovercome by carbon monoxide before they’re ever able to recover their mask,” (Tr.122:4–16) especially if compounded by mobility issues such as broken limbs, tornligaments, or disorientation from losing the lifeline. (Tr. 104:25–105:3, 107:9–22,108:1–2, 121:15–122:2, 129:1–10, 151:16–17.) Losing the lifeline or a SCSRwould also prevent a miner from reaching the next cache of longer-use SCSRs. (Tr.105:3–5, 129:1–10.) Therefore, even if a miner sustained no immediate injuriesduring the fall, delayed escape causes a miner to use up more oxygen or breathein more noxious gases than they would with a more expedient escape, and losevaluable time needed to get to the cache of long-term SCSRs. Consequently, Idetermine that tripping on or falling over the hoses themselves contributes toan injury or delayed escape, particularly for disabled miners, and theresulting delay is reasonably likely to lead to injury, thus satisfying thethird element of the *Mathies* test. 

** **

**4.             ****Likelihood Resulting Injury Would Be of Reasonably Serious Nature**

** **

Lastly, underthe fourth *Mathies* element, the Secretary must prove a reasonablelikelihood that the resulting injury would be of a reasonably serious nature. Aninjury of a “reasonably serious nature” does not require a specific type ofinjury, and a mere sprain or strain resulting from a trip and fall may be“reasonably serious.” *S & S Dredging Co.*, 35 FMSHRC 1979, 1981–82(July 2013) (holding the ALJ erred in requiring the Secretary to demonstrate aninjury that would result in hospitalization, surgery, or a long period ofrecuperation to satisfy the fourth *Mathies* element); *see, e.g.*, *MapleCreek Mining, Inc.*, 27 FMSHRC 555, 562–63 (Aug.2005) (affirming the ALJ’s determination that reasonably serious injury, suchas a leg or back injury, would reasonably arise from the failure to maintainthe walkway in a safe condition); *Southern Ohio Coal Co.*, 13 FMSHRC912, 918 (June 1991) (affirming ALJ’s conclusion that a trip-and-fall wouldresult in reasonably serious injuries such as “sprains, strainsor fractures”). 

 

CONSOL’s witnesses did not disputeInspector Jack’s testimony that injuries would likely include broken bones,sprains, strains, torn ligaments, or fatality (Tr. 105:1–11, 109:9–22, 129:1–10,151:16–25), which all are of a reasonably serious nature. If a miner loses his SCSRin a fall, he is reasonably likely to inhale and succumb to poisonous gases onthe spot. (Tr. 104:25–105:3, 107:9–22, 108:1–2, 121:15–122:2, 151:16–17.) Otherwise,if the miner gets disoriented, loses the lifeline, and cannot find the mine exitor is delayed in exiting and cannot reach the cache of long-term SCSRs insufficient time with the oxygen he has, the mineris reasonably likely to die—or, in Inspector Jack’s words, is “done”—due toinhalation of the poisonous gases. (Tr. 104:25–105:3,107:9–22, 108:1–2, 121:15–122:2, 151:16–17.) I determine that the injuriesexpected to result from tripping on the hoses or delayed escape are reasonablylikely to be of a reasonably serious nature, thus satisfying the fourth *Mathies*element. For the same reasons, I affirm theInspector’s gravity determination as reasonably likely to result in lostworkdays or restricted duty. 

 

Accordingly, the Secretary hassatisfied all four elements of the *Mathies* test. I conclude thatCitation No. 9204482 is appropriately designated as S&S.

** **

**C.        Negligence**

** **

Commission Judges determinenegligence under a traditional analysis rather than relying on the Secretary’sregulations at 30 C.F.R. § 100.3(d). *Mach Mining, LLC**v. Sec’yof Lab.*, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (quoting *Brody Mining, LLC*,37 FMSHRC 1687, 1701 (Aug. 2015)). This analysisasks whether an operator has met “the requisite standard of care—a standard ofcare that is high under the Mine Act.” *Id.* In evaluating thesefactors, the negligence determination is based on the “totality of thecircumstances holistically,” including factors such as the protective purposeof the regulation, and what actions would be taken by a reasonably prudentperson familiar with the mining industry. *Mach Mining*, 809 F.3d at 1264(quoting *Brody Mining, LLC*, 37 FMSHRC at 1702).

 

Inspector Jack assigned moderatenegligence to Citation No. 9204482. (Tr. 101:2–4, 130:20–131:9.) At hearing,the Secretary argued the record may show high negligence and asserts in herpost-hearing brief that the “violation resulted from at least moderatenegligence.” (Sec’y Post-hr’g Br. 22–23; Tr. 21:10–19.) Insupport, the Secretary asserts CONSOL knew or should have known about theobstructions in the escapeway. (Tr. 130:23–25, 132:3–11; Sec’y Post-hr’g Br.23.) CONSOL was cited under the samestandard at Enlow Fork Mine in the past two years (II Tr. 53:11–14), which the Secretaryargues should have put CONSOL on notice that thecondition in this citation violates the mandatory safety standard. (Sec’yPost-hr’g Br. 23;*see*Ex. P–5.) The hoses protruded from the pumpcar at the cited location from approximately August 12–17, 2021. (Tr. 132:7–15,148:8–24, 269:13–270:12; II Tr. 43:6–44:7, 54:6–11; Ex. R–6 at 49.) Since amine examiner was required to inspect the entire track at least three times aday—before each shift—CONSOL’s mine examiner thus had multiple opportunities toobserve the condition but did not make any notations concerning the citedcondition. (Tr. 134:13–15, 148:8–24, 264:25–265:8, 269:13–270:12; II Tr. 36:9–38:2;Exs. P–3, R–2.) Further, CONSOL’s witness Steven Barr previously constructedbridges to cover hoses in an alternate escapeway and therefore knew of thissafer option. (II Tr. 28:1–11.) Inspector Jack observed that placing the hosesin the cited condition was “very avoidable” because CONSOL could run thelifeline on the opposite side of the pump cars and power centers, where nohoses laid across the escapeway. (Tr. 146:7–15, 148:8–24.) CONSOL argues thatno negligence is appropriate, claiming it did not breach the standard of carebut does not give specific facts to support its position. (Tr. 23:13–14, 27:4–6;Resp’t Post-hr’g Br. 25.) I determinethat CONSOL should have known of the violative condition, and that this violationruns on the high end of moderate negligence. Considering the totality of thecircumstances, I conclude that a designation of moderate negligence isappropriate.

 

**D.        Penalty**

#  

The Secretary proposes a penalty of$2,844.00. The Commission is not bound by theSecretary’s proposal and reviews penalty assessments *de novo*. *MachMining*, 809 F.3d at 1263–64. Under section 110(i) of the Mine Act, I mustconsider six criteria in assessing a civil penalty: (1) the operator’s historyof previous violations; (2) the appropriateness of the penalty relative to thesize of the operator’s business; (3) the operator’s negligence; (4) thepenalty’s effect on the operator’s ability to continue in business; (5) theviolation’s gravity; and (6) the demonstrated good faith of the operator inattempting to achieve rapid compliance after notification of a violation. 30U.S.C. § 820(i).

 

CONSOL is a large operator with alow to moderate violation history. In the two years preceding the issuance ofthis citation, MSHA issued one violation of section 75.380(d)(1) to CONSOL’sEnlow Fork Mine that became a final order of the Commission. (Ex. P–5 at 3.) Idetermined CONSOL’s negligence to be moderate. CONSOL has not alleged that theproposed penalties would adversely affect its ability to continue in business. Ialso determined the gravity of the violation to be S&S. Finally, CONSOLdemonstrated good faith by quickly moving the escapeway’s footpath into thecrosscut and constructing a “rock dust bag” bridge over the hoses to complywith the cited standard. (Tr. 93:17–22, 135:12–141:22, 148:5–13, 177:15–24; IITr. 57:10–11; Ex. P–1.) In considering the criteria set forth in section 110(i)of the Mine Act and all the relevant facts, I hereby assess a penalty of $2,844.00.

** **

**V.  ORDER**

 

In light of the foregoing, it ishereby **ORDERED**that Citation No. 9204482is**AFFIRMED** as written.

            Respondent CONSOL Pennsylvania Coal Company, LLCis hereby **ORDERED**to **PAY** a penalty of $2,844.00 within 40 days ofthis decision.[9]

 

 

 

 

/s/Alan G. Paez

                                                                              AlanG. Paez

                                                                              AdministrativeLaw Judge

 

 

Distribution: (Via U.S. Mail and Electronic Mail)

 

Sharon H. McKenna, Esq., U.S.Department of Labor, Office of the Regional Solicitor,

1835 Market Street, Mailstop SOL/22, Philadelphia, PA19103-2968

(mckenna.sharon.h@dol.gov)

 

Patrick W. Dennison, Esq.,Fisher & Phillips LLP, 6 PPG Place, Suite 830, Pittsburgh, PA 15222-5428 

(pdennison@fisherphillips.com)

 

/gw

----

[1] In this decision,the original hearing transcript, the supplementary hearing transcript, theJoint Exhibit, the Secretary’s exhibits, and the Respondent’s exhibits areabbreviated as “Tr.,” “II Tr.,” “Jt. Ex. #,” “Ex. P–#,” and “Ex. R–#,” respectively.

 

[2] The S&Sterminology comes from section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1),which distinguishes as more serious any violation that “could significantly andsubstantially contribute to the cause and effect of a . . . mine safety orhealth hazard . . . .” 30 U.S.C. § 814(d)(1).

[3] The partiesincorrectly list this as a “Contest” proceeding in Item 4 of their stipulations.

[4] The photographsin Exhibit R–5 do not depict the cited condition and were not taken the day thecitation was issued. They were entered into evidence to show a “general idea”of similar conditions, and depict, among other conditions, high pressure hosesprotruding into a track entry. (Tr. 12:19–14:16, 225:18–232:12; Ex. R–5.)

[5] CONSOL submitted itsExamination of Electrical Equipment and the Longwall Section On-shift DustParameter Examination Record. (Exs. R–3, R–4.) Whilecoal dust and electrical equipment maintenance may affect the likelihood of anemergency, this information does not affect my analysis of the existence of aviolation because emergency conditions are assumed. *Am. Coal Co.*, 29FMSHRC at 950.

[6] The citation’sfocus is properly on the obstruction as evident by the way Inspector Jackallowed CONSOL to abate the citation. The abatement focused on the obstructionof passage, which corresponds to the proper standard: section 75.380(d)(1). CONSOLlaid bags filled with rock dust between the hoses to create a bridge toeliminate or reduce any tripping hazard and redirected the lifeline intoCrosscut 15.5 where the hoses laid flat on the mine floor, allowing miners tosafely use the passageway. (Tr. 93:17–22, 135:12–141:22; Ex. P–1.)

 

[7] Section 75.380(d)(4)(iv)states: “Each escapeway shall be maintainedat least 6 feet wide except where mobile equipment near working sections, andother equipment essential to the ongoing operation oflongwall sections, is necessary during normal mining operations, such asmaterial cars containing rock dust or roof control supplies, or is to be used for theevacuation of miners off the section in the event of an emergency. In anyinstance, escapeways shall be of sufficient width to enable miners, includingdisabled persons, to escape quickly in an emergency. When there is a need todetermine whether sufficient width is provided, MSHA may require a stretchertest where 4 persons carry a miner through the area in question on a stretcher.”30 C.F.R.§ 75.380(d)(4)(iv).

[8]Barr has worked in many different positions in his twenty-one years withCONSOL, including stints as longwall coordinator and general mine foreman. (II Tr.5:17–7:1.)

[9]Please pay penalties electronically at Pay.Gov, a serviceof the U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment (check or money order) to:U.S. Department of Treasury, Mine Safety and Health Administration P.O. Box790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.