**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 2022-0009     |
| Petitioner,                                                                                                                             | :     A.C. No.  36-07230-543018      |
|                                                                                                                                    | :                                     |
| v.                                                                                                                                      | :                                     |
|                                                                                                                                    | :                                     |
| CONSOL  PENNSYLVANIA COAL       COMPANY, LLC,

                                    Respondent.                                         | :     Mine: Bailey  Mine

:

:       |

 

**DECISION**

 

Appearances:  ErikUnger, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania,and Kenneth J. Polka, Conference & Litigation Representative, U.S.Department of Labor, MSHA, Mt. Pleasant, Pennsylvania, for Petitioner;

James P. McHugh, Esq., Hardy Pence PLLC, Charleston, WestVirginia, 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 (“Secretary”) pursuant to section 105of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),30 U.S.C. § 815. In dispute is a single section104(a) citation issued to CONSOL Pennsylvania Coal Company, LLC (“CONSOL”or “Respondent”).[1]

 

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 Labor 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. 9075606alleges CONSOL violated 30 C.F.R. § 77.400(a)[2] by failing toguard moving machine parts, consisting of a spinning metal shaft on anindustrial water pump. The Secretary proposed a penalty of $355.00, which CONSOLtimely contested.[3]I held an in-person hearing on July 7, 2022, in Pittsburgh, Pennsylvania, wherecounsel for the Secretary appeared remotely via Zoom for Government due toelevated levels of COVID-19 infections. 

 

At the hearing, the Secretarypresented testimony from MSHA Inspector Craig Mikulsky. CONSOL presentedtestimony from two witnesses: Matthew Criado, CONSOL’s Refuse Coordinator who accompaniedthe inspector, and Tyler McMillan, the Contract Technician for HollowoodHeating, Inc., assigned to grease the fittings on the cited water pump. Inaddition to the parties’ submissions of documentary and photographic evidence,the Secretary submitted three short videos taken by Inspector Mikulsky at thetime of his inspection of the cited water pump. During the hearing I grantedcounsel for CONSOL permission to review MSHA’s history of violations for theBailey Mine and raise any discrepancies in his post-hearing brief, but hereported no issues. Due to a delay in receiving the transcript, the parties requestedand were permitted to submit their post-hearing briefs and reply briefs severalmonths later.

 

**II. ISSUES**

 

Based on CitationNo. 9075606 the Secretary asserts that CONSOL violated section 77.400(a)by failing to guard the spinning metal shaft of the boosterpump that pressurizes water flowing to the Bailey Prep Plant. (Exs. P–1-1, P–5-1; Tr. 26:18–19, 99:4–9, 130:5–11.) The citationcharacterizes the likelihood of injury to be reasonably likely to result inlost workdays or restricted duty of one miner, designates the citation assignificant and substantial (“S&S”),[4]and marks CONSOL’s degree of negligence as low. The Secretary argues theviolation should be upheld as written and the proposed penalty affirmed. (Sec’yBr. at 3; Exs. P–1-1, P–2-2.) CONSOL originally contested the fact of theviolation, the S&S designation, and the amount of the penalty. (Resp’t Am.Prehr’g Report at 2.) However, in its post hearing brief, CONSOL no longerargues against the fact of a violation but asserts the citation should bemodified to drop the S&S designation along with a penalty reduction basedon the penalty charts under 30 C.F.R. part 100.3. (Resp’t Br. at 2, 8, 21.)

Accordingly, Idetermine the following issues are before me: (1) whether CONSOL violated theguarding provisions of 30 C.F.R. § 77.400(a) as alleged in Citation No. 9075606;(2) whether the citation was properly designated as S&S; and (3) whetherthe proposed penalty is appropriate for any such violation.

 

            Forthe reasons set forth below, Citation No. 9075606 is **AFFIRMED** as written.

 

**III. FINDINGS OF FACT**

 

**A.****Parties’Stipulations**

 

At the hearing theparties stipulated in a joint exhibit 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 citations at issue in this proceeding were issued.

2.  At all timesrelevant to these proceedings, Bailey Mine (ID 36-07230) 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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.  Bailey Mine isowned by the Respondent. 

6.  Payment of thetotal proposed penalty 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 citations in contest was acting in anofficial capacity and as an authorized representative of the Secretary of Laborwhen the citations were issued. 

8.  True copies ofeach of the citations that are at issue in this proceeding were 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 citations, as required bythe Act. 

9.  Exhibit “A” attached to the Secretary’s Petition in DocketNo. PENN 202[2]-00[0]9 contains authentic copies of the citations at issue inthis matter with all modifications or abatements, if any. 

 

(Jt. Ex. 1.)[5]

 

**B.        Operationsof Bailey Mine 960 Booster Pump Area**

** **

CONSOLoperates the Bailey Prep Plant for coal processing at the surface of the BaileyMine in Greene County, Pennsylvania. (Tr. 37:1–6.) The Bailey Prep Plantuses water for various tasks and employs large industrial pumps to transport itthrough water lines around the 4,000-acre mine site. (Tr. 27:2–4, 96:9–11,130:5.) Two such industrial water booster pumps sit in a semi-circular metalQuanset hut (Tr. 35:4–7) in an isolated area of the mine called Coal RefuseDisposal Area No. 5, located approximately two miles from the prep plant. (Tr.36:25–37:4, 130:23–25, 140:6–9.) These 960 Booster Pumps fill a watertank supplying makeup water to the prep plant. (Tr. 36:25–38:14, 46:4–46:22; *see*Ex. P–3.) The booster pumps exert 110 pounds per square inch (PSI) of pressurethat forces water through two-foot diameter water lines. (Tr. 37:19–22, 38:17–21, 57:25–58:5; Ex. P–3-13.)Each “large” booster pump motor exerts 500horsepower (Tr. 35:12–36:23, 65:18–20, 195:21–22) which in turn rotates a shaftthat completes between 300–900 rotations per minute. (Tr. 34:23–35:17–18, 65:18–20.)

 

Formaintenance, the 960 Booster Pumps have grease fittings. (Tr. 39:1–2, 73:3–6, 74:3–10, 112:1–10, 166:23–25;Exs. P–2-1, P–3-24, R–3-A.) One of thegrease fittings on the 960 Booster Pump sits five inches from its spinningmetal shaft. (Tr. 34:12–17, 122:19–21, 123:10–124:6.) Miners known as“greasers” visit Coal Refuse Disposal Area No. 5 approximately monthly to add greaseto this grease fitting to lubricate the booster pump motor. (Tr. 38:9–13,50:19–20, 85:23–86:3, 141:13–21, 152:21–22, 160:10–18.) The greaser walks downthe 43-inch-wide walkway through the pumps to approach this fitting. (Tr.40:21–42:15, 145:2–6; Ex. P–2-1.) Because this greasefitting sits approximately 60 inches, or five feet, above the floor, thegreaser must climb the pump to grease thefitting. (Tr. 39:1–2, 73:3–6, 74:3–10,112:1–10, 166:23–25;Exs. P–2-1, P–3-24, R–3-A.) To reach the fitting, the miner pulls himself closerto the pump with both hands, reaches out 24 inches, and hovers over thespinning shaft. (Tr. 36:21–23, 38:21–24, 51:21–23.)

 

The contract miner, Tyler McMillan,assigned to service the grease fitting of the 960 Booster Pump in Citation No.9075606 provided a detailed description on how to perform the greasing task. McMillangreases the fitting from the side, with the motor on his left and the pump onhis right. (Tr. 159:13–22; Ex. R–3-A.) While holding the grease gun in his lefthand, he steps his left foot in front of theyellow leg on the flat surface withmetal tread, grabs the nut and bolt with his right hand, and pulls up. (Tr. 148:21–151:25, 152:19–24, 157:2–20; Ex. R–3.) Then, he places his right foot onthe ledge next to the metal frame, leans his thighagainst the structure of the motor, and leans his waist against the cast ironledge while reaching out over the grease fitting. (Tr. 148:25–150:16, 167:2–10; Ex. R–3.)The miner then pushes down on the rigid handle of the 20-inch-long grease gunto lock on the fittings at the end of the grease gun. (Tr. 154:2–9; Ex. R–2f.) Ifthe grease gun does not snugly fit the bearing, grease leaks out from the sides.(Tr. 163:13–16.) Prior to greasing, the miner may clean the fitting with a rag,his gloves, or his hands. (Tr. 66:22–67:1, 155:24–156:19; Ex. P–2-1.) Water sprays in the area of the pump and gets onto theminer’s protective glasses. (Tr. 168:24–169:8.) 

** **

**C.        Mikulsky’sInspection of Booster Pump Area**

** **

MSHA Inspector Craig Mikulsky arrivedat the Bailey Mine on August 18, 2021, for a routine EO1 inspection. (Tr. 22:2–19,26:5–10, 118:11–14.) Matthew Criado, CONSOL’s Refuse Coordinator, accompaniedInspector Mikulsky for part of the inspection (Tr.27:13–28:2, 196:1–6), whereby Mikulsky traveled tothe Coal Refuse Disposal Area No. 5. (Tr. 28:3–28:20, 34:23–35:3, 141:2–12, 140:6–9,188:3–11; Exs. P–1, P–3-23.) Upon enteringthe Quonset hut containing the 960 Booster Pumps, Mikulsky heard the “veryloud” machinery and observed water spraying around the hut and dripping fromthe ceiling. (Tr. 35:19–23, 39:20–23, 47:6–7, 59:15–16, 62:15–21, 72:7–9, 79:5–15,82:8–9; Ex. P–3-1, R–4 (video 3).) The flooringaround the pumps sloped downward to allow water to drain from the building. (Tr.99:25–100:5.) While standing in the doorway of the hut, InspectorMikulsky noticed one pump to his left and another pump to his right with a washdown hose draped between them. (Tr. 39:11–25, 43:17–20.)

 

As InspectorMikulsky walked past the 960 Booster Pump (the pump that appears on the rightside of the photo in Exhibit P–3-1), heglanced over and observed a 3-to-4.5-inch opening exposing the spinning shaft’s“teeth.” (Tr. 34:8–11, 64:1–7, 104:13–16, 132:25–133:1; Exs. P–1, P–2-1, P–3-1, P–3-9, P–3-10, P–3-17, P–3-24.) Theseteeth consisted of keyed, or protruding and jagged, bits of rusty metalsticking out from the rotating shaft. (Tr. 34:12–13, 123:5–8, 132:25–133:1.) ToMikulsky the opening was large enough where “a miner can easily, if his handslips [sic] down, his hand could easily get into this spinning shaft.” (Tr.38:16–19.) A semi-circular, yellow guardcovered some of the shaft, and a hose draped over the guard and through thehandle. (Tr. 41:20–24, 47:9–12, 132:2–8; Exs. P–3-3, P–3-5.) Mikulsky wrote in his notes that a portionof the hose was directly above the exposed spinning shaft. (Ex. P–2-1.) Metallegs, which extended from the floor,propped upthe guard. (Exs. R–3a, P–3-15.) Upon beingnotified of the condition, Criado observed that the guard “was lifted up on oneside of the pedestal.” (Tr. 175:8–10.) A grease fitting for the 960 Booster Pump sits in betweenthe yellow leg of the pump’s steel frame and the blue rusted metal to the leftof the picture in Exhibit P–3-15. (Ex. P–3-15; Tr. 61:22–62:4,134:20–4.) Inspector Mikulsky observed the cutout in the recessed guard(where the miner’s grease gun fits into the grease fitting) hangs almostdirectly above the shaft, so a greaser would work almost directly above thespinning shaft. (Tr. 37:17–22, 39:11–13, 43:8–9, 53:23–54:13.)

 

**D.        Issuanceof Citation No. 9075606 and its Abatement**

** **

In Citation No. 9075606(Ex. P–1-1), Inspector Mikulsky wrote:

 

A portion of the spinning shaft on the motor outputside

of the 960 Booster Pump was not guarded to preventminers 

from contacting the high speed moving shaft parts. The

unguarded opening of the spinning shaft ranged from 

approximately 3 to 4.5 inches wide around the topportion 

of the shaft. The spinning shaft is rusted, withprotruding 

and keyed metal sections. The exposed spinning shaft is

approximately 4ft to 5ft above the floor and within 

approximately 5 [sic] inches from a grease fitting. Inaddition, 

the entire guard/cage system covering other sectionsof the 

motor output side of the spinning shaft was notsecure. 

The entire guard/cage system moved when bumped. 

 

Standard 77.400(a) was cited 5 times in two years atmine 

3607230 (5 to the operator, 0 to a contractor).

 

(Ex. P–1-1; Tr. 28:6–24,34:5–21.)

 

InspectorMikulsky issued Citation No. 9075606 at 8:30 a.m. for a failure to guard thespinning shaft on the 960 Booster Pump per section 77.400(a). (Tr. 28:5–30:16,182:17–20.) He designated the citation as low negligence and as S&S, inasmuchas he determined the failure to guard this portion of the shaft was reasonablylikely to lead to an injury resulting in lost workdays or restricted duty. (Tr.81:15–82:11, 84:13–85:1–10; Exs. P–1-1, P–2-2.) Hedetermined the hazard in question could affect one person, likely the greaser. (Tr.80:1–3.) Mikulsky stated that guarding should fit “tightly” to prevent injury(Tr. 38:14–15), yet here Mikulsky observed the guarding slid away from thespinning shaft because the bolts had rusted. (Tr. 59:10–12, 77:17–21.) 

 

Inspector Mikulsky notified Criado ofthe condition, and Criado arrived in the area, though management did not previously know about this gap in the guarding.(Tr. 85:69, 118:7–10, Tr. 119:2–18; Ex. P–2-2.) While Inspector Mikulskyexamined the condition, filmed video, and took photographs, Criado attempted toslide the guarding to its previous position; but when Criado bumped theguarding, its legs wobbled, the entire guarding frame moved, and the gap exposingthe moving shaft lengthened. (Exs. P–1, P–2-1, P–3-3, R–4; Tr. 58:22–60:6, 67:21–22,68:21–24, 78:3–78:8, 112:19–113:6, 132:25–133:3, 135:515, 148:21–152:16, 191:2–5.)In his contemporaneous notes, Inspector Mikulsky wrote that the “footing of thecage [guarding frame] was off and could [be] moved around easily.” (Ex. P–2-1.)Inspector Mikulsky determined CONSOL needed to weld the unstable legs of theguarding frame. (Tr. 113:5–6.)

 

To abate the citation, Criadoinitially shut off the pump. (Tr. 64:11–21.) CONSOL required additional time toestablish an adequate guard. (Ex. P–1-2.) Therefore, Inspector Mikulskyextended the citation, and CONSOL restricted access to the unguarded area toallow the pumps to continue operating. (Tr. 73:8–13; Ex. P–1-2.) MSHAterminated the citation on August 24, 2021, when CONSOL stabilized andadequately adjusted the guard to prevent injuries to miners by bolting theguard and welding the legs. (Exs. P–1-2, P–1-3, P–3-27; Tr. 59:19–24, 72:12–16,75:11–12.) 

 

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

**ANALYSIS,AND CONCLUSIONS OF LAW**

**A.        Violationof 30 C.F.R. §****77.400(a)****– Failure to Adequately Guard SpinningShaft on 960 Booster Pump**

** **

The Secretaryalleges that CONSOL violated section 77.400(a) requiring “[s]hafts . . . which may becontacted by persons, and which may cause injury to persons shall be guarded.” 30C.F.R. § 77.400(a). TheCommission has held a “minimal” likelihood of contact to be sufficient touphold a violation of this standard. *Thompson Bros. Coal*, 6 FMSHRC 2094,2096–97 (Sept. 1984) (concluding “section 77.400(a) contemplates guarding ofmachine parts subject to the standard where there is a *reasonablepossibility*of contact and injury” and upholding the ALJ’s finding of a“minimal” likelihood of contact to be sufficient for “reasonable possibility ofcontact”) (emphasis added). CONSOL points to the “reasonable possibility” testin *Thompson Brothers*, which takes into consideration the possibility of“contact stemming from inadvertent stumbling or falling, momentary inattention,or ordinary human carelessness,” but emphasizes *Thompson Brothers* didnot involve any S&S determination. (Resp’t Br. at 9–10.) CONSOL also arguesthat Mikulsky’s photos distort the measurements he made. (Resp’t Br. 3–4.) 

 

Here, InspectorMikulsky observed a 3-to-4.5-inch gap in the guarding that exposed the rusted,keyed spinning shaft on the 960 Booster Pump. (Tr. 34:8–11, 64:1–7, 104:13–16,132:25–133:1; Exs. P–1, P–2-1, P–3-1, P–3-9, P–3-10, P–3-17, P–3-24.) Thisshaft contains metal fins, or “teeth”, that could reasonably snag clothing,straps, or limbs. (Exs. P–1, P–2, P–3, P–4; Tr. 36:12–36:24,37:23–38:24, 133:25–134:1.)

 

CONSOL generallyquestions the accuracy of Mikulsky’s measurements and takes issue with some ofthe photographic evidence. Mikulsky is an experienced inspector who has workedfor MSHA for the last nineteen years, including work as an accidentinvestigator; he received a Bachelor of Science in geology from the Universityof Pittsburgh, as well as a degree in mine safety from Marshall University. (Tr.22:15–19, 24:4, 25:15–24.) In response to CONSOL questioning his measurements, Mikulskyexplained the difficulty of photos showing accurate depth in a two-dimensionalphotograph, which I credit. (Tr. 42:17–43:1, 53:13–18, 55:8–10, 62:10–14, 104:7–20,106:11–12, 107:8–10, 110:2–7.) I also credit InspectorMikulsky’s testimony that while greasing the fitting, “[t]he greaser isexposed, and his hand could easily, if it slips, it could easily get down intothat guard.” (Tr. 79:25–80:3.) Because the pump’s jagged, rusty, 20-inchdiameter shaft spins at a rate of 300-900 rotations per minute, and aminer greasing the fitting works five inches from the shaft, contact wouldreasonably cause injury.[6] (Tr. 34:12–35:18, 65:18–20,123:5–8, 132:25–133:1; Ex. P–2-1.) Indeed, Inspector Mikulsky who hasexperience as a greaser stated, “if [a miner’s] hand slips in there, a seriousinjury is going to happen, and it could possibly be permanently disabling” oreven something “catastrophic” such as cutting off the miner’s hand. (Tr.50:3–4, 83:2–7.)

 

Based on therecord, I determine that CONSOL failed to adequately guard the shaft of the 960Booster Pump while in operation, and thegapfrom the missing guarding exposed miners to a spinning, keyed shaft due to itsproximity to the grease fitting miners serviced. Therefore, I conclude that theSecretary has met his burden of proving CONSOL violated section 77.400(a).

 

**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 Labor*, 861 F.2d 99, 104 (5th Cir. 1988) (approvingthe *Mathies* test). 

** **

****I now analyzethese elements of the *Mathies* test to determine if the violation isS&S.

** **

**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 determined CONSOLviolated section 77.400(a) because it failed to guard the entire shaft of the960 Booster Pump causing a reasonable possibility**of contact and injury.*See* discussion *supra* Part IV.A. Thus, 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**

** **

For the 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 contacting the exposed spinning shaft (Tr.36:18–21), because Inspector Mikulsky observed a 3-to-4.5-inch “opening in theguard where a miner can easily, if his hand slips down, his hand could get intothis spinning shaft with these protruding fins . . . .” (Tr. 38:16–21, 80:1–3);*see Pittsburg & Midway Coal Mining Co.*, 15 FMSHRC 2243, 2244 (Nov.1993) (noting section 77.400(a) aims to prevent persons from contacting movingparts).

 

The partiesdisagree whether a finger, hand, or loose clothing would reasonably contact thequickly moving shaft based on the proximity of the grease fitting to the shaft,the size of the gap exposing the shaft, and the ergonomics of how a mineraccesses the grease fitting while the shaft spins. To reach the grease fitting,the greaser ascends the pump frame, and climbs on it in a highly specificmanner, as described by CONSOL’s contract greaser McMillan.[7] (Tr. 39:1–2,73:3–6, 74:3–10, 112:1–10, 166:23–25, 167:2–10; Exs. P–2-1, P–3-24, R–3-A.) Greasecovers the frame because the guns leak grease from the sides.[8] (Tr. 50:4–10,66:15–16, 69:25–70:2, 163:13–16.) Indeed, Mikulsky noted that grease guns,especially older models, often do not fit the bearings well causing grease toleak (Tr. 50:4–10), and, therefore, “it’s common to have grease around in theconditions.” (Tr. 66:15–16, 69:25–70:2.) In the area of the 960 Booster Pump, watersprays onto the metal frame and drips from the ceiling as noted by McMillan, aswell as evidenced by the photographs and videos showing spraying water aroundthe 960 Booster Pump. (Tr. 169:6–8; Exs. P–2-1, P–3-24, R–4 (video 3).) 

 

In these wetconditions the greaser, McMillan, explained how he climbs onto the pump andcontorts his body to balance on the ledge of the pump. (Tr. 148:21–152:24.) Thisdescription comports with Mikulsky’s description that a miner will not workwith his arms fully stretched out, but instead will pull himself closer to thepump to work with bent elbows in a more comfortable position; the “miner worksreally close to [the] moving part,” as miners usually pull themselves closer tothe unguarded area so they can work with bent elbows and enhanced dexterity. (Tr.52:3–9, 82:3–5.) A miner would lean and perhaps reach with both hands outbeyond the frame over at least 20 inches. (Tr. 51:7–52:9.) Meanwhile, water wouldspray on the miner’s safety glasses, potentially obstructing his view of thefitting or location of his hands. (Tr. 47:12–14, 82:6–9; Ex. P–2-1.) The minermay get even closer to the fitting to clean the fitting with his hands or guidethe head of the grease gun onto the fitting. (Tr. 49:10–12, 50:8–10, 66:15–67:1,125:25–126:14; Ex. R–2f.) With the jagged “teeth” of the spinning shaft merelyfive inches below the miner’s arms and torso, Inspector Mikulsky noted “howeasy [miner’s clothing or a rag] can get caught in that opening.” (Tr. 34:12–17,49:8–13, 83:16–18, 122:19–21, 123:10–124:6; Ex. P–2-1.) 

 

Further, given thenoisy environment, the wetness, and the awkward position a miner uses to accessthe grease fitting, it is reasonably likely that a miner could becomedistracted, slip, or lose his balance. Because a miner holds the grease gun in onehand or both, it is conceivable that a miner would struggle to properly catch himselfif he slipped or lost his balance. *See Pittsburg & Midway Coal MiningCo.*, 15 FMSHRC 2243, 2245 (Nov. 1993) (remanding to the ALJ for failing toproperly address all the evidence in S&S analysis, including considerationof the hazard of carrying an object which would have made catching oneself froma fall difficult).

 

Despite theproximity of the grease fitting to the unguarded part of the shaft, CONSOLasserts a hand could not fit though the 3-to-4.5-inch gap exposing the spinningshaft. (Resp’t Br. at 3–4, Resp’t Reply at 6–7; Exs.**P–1,P–3-9, P–3-10,P–3-16, P–3-18,P–3-24.) Yet, Inspector Mikulsky testified ahand could fit through the gap. (Tr. 50:3–4, 57:6–8, 83:2–7.) Specifically,Inspector Mikulsky observes, “[I]f your hand’s on the edge of something, itdoesn’t fall rigid. It bends.” (Tr. 57:6–8.) Therefore, the gap need not belarge enough for a miner’s splayed hand to fit through. Rather, consistent withMikulsky’s testimony, if you rotate that splayed hand ninety degrees with thethumb pointed to the sky, it is quite reasonable that hand could slip through a3-to-4.5-inch gap in the guarding. CONSOL’s witnesses never refuted InspectorMikulsky’s testimony that a hand could fit through this gap. Moreover, Mikulskyobserved the instability of the guarding frame and the likelihood it would bebumped by a miner, whereby “that opening is going to get, you know, couldeasily get larger.” (Tr. 59:19–24.) Therefore, I determine a miner’s rag,clothing, hand, fingers, or portion of the arm could reasonably fit through thegap in the guarding and contact the spinning shaft, creating the reasonablelikelihood of the occurrence of a hazard which section 77.400(a) is designed toprevent.

 

CONSOL makes several additionalarguments challenging the S&S determination. First, CONSOL argues that evenif a miner’s hand, arm, or clothing could fall through the gap in the guarding,no miner could contact the moving machine part because no miners regularlyenter the area. (Resp’t Br. at 8.) While Inspector Mikulsky admitted he observedno miners in the immediate vicinity at the time of his inspection (Tr. 99:2–3),the record demonstrates greasers come to the area approximately once monthly togrease the fittings of this 960 Booster Pump. (Tr. 38:9–13, 50:19–20,85:23–87:12, 128:1–129:17, 160:10–18.) MatthewCriado, the refuse coordinator at the time of the inspection, worked atCONSOL from 2014 until November 2021.[9] (Tr. 171:19–172:20, 188:24–189:17.) Criadoacknowledged that “a plethora of different people,” including electricians, andthe contractor who laid the hose over the pump, regularly work in the boosterpump area. (Tr. 39:4–42:1, 43:2–42:16, 83:10–12, 114:19–117:22, 193:8–193:25,197:11–20; Exs. P–2-1, R–3a.) Although CONSOL emphasizes that Mikulsky saw nominers in the immediate vicinity at the time he issued the citation (Tr. 99:2–3), thisis not legally relevant because S&S determinations are made in the contextof normal, continuous mining operations. *See, e.g.*, *Knox Creek CoalCorp*., 36 FMSHRC 1128, 1132 (May 2014), *aff’d*, 811 F.3d 148 (4thCir. 2016) (indicating that the ALJ erred whenhe took a “‘snapshot’ approach” to the S&S analysis). Thus, I findunder normal mining operations that miners in addition to the greasers visitthe area of the 960 Booster Pump. 

 

CONSOLalso seems to posit that fewer miners working in proximity to this guardingviolation negates an S&S determination. However, the Commission stated that“‘reasonable likelihood’ is not an exact standard” when it wrote that “a Judgecannot calculate the degree of risk of the occurrence of a hazard or a reasonablyserious injury in precise percentage terms. Rather, the ‘reasonable likelihood’standard is a ‘matter of degree’ evaluation with particular focus on the factsand circumstances presented regarding these risks.” *Newtown Energy, Inc.*,38 FMSHRC 2033, 2039 (Aug. 2016) (reversing the ALJ’s decision dropping theS&S designation and instead finding that failure to lock out a shuttle carduring electrical repairs was S&S). Indeed, I am persuaded by Commission andALJ cases finding violations to be S&S when a miner is in the cited areainfrequently. *See, e.g.*, *Eagle Nest Inc.*, 14 FMSHRC 1119 (July1992) (vacating and remanding the ALJ’s non-S&S determination where mineexaminer was exposed to water accumulations in entry during weeklyexaminations),*on remand*14 FMSHRC 1800 (Nov. 1992) (ALJ) (holding on remand that violation was S&Swhere one miner examined area weekly);*Original Sixteen to One Mine, Inc*.,36 FMSHRC 2224, 2227–28 (Aug. 2014) (ALJ) (affirming S&S designation whereonly one miner visited area of mine with violation once monthly). Thus, I amnot persuaded by CONSOL’s arguments that a violation where a miner visits thecited area monthly to grease the 960 Booster Pump cannot be S&S. 

Second, CONSOL arguesthat the hazard would not reasonably occur because of its employees’ knowledge,experience, safety training, and prudence. Specifically, CONSOL argues that itscontract greasers do not wear loose clothing or use loose rags to wipe upgrease spills (Tr. 98:5–7, 126:21–127:20, 146:2–10, 156:2–13; Resp’t Br. at 8,19), would know to power down the machine before greasing the pump (Tr.115:8–19; Resp’t Br. at 4), and would not grease the fitting with a loose ordislodged guard. (Tr. 158:24–159:8.) McMillan, a contract greaser, said he has neverobserved the guard “pulled back” when he greased the fitting. (Tr. 161:6–8.) AndCONSOL points to McMillan’s testimony that he normally tucks in his clothingwhen he greases the fitting. (Tr. 146:4–9.) However, the Commission has held a miner’sknowledge, experience, and prudence, or mine operator’s redundant safetymeasures are irrelevant to the S&S analysis, as “[t]he Court cannot assumethat S&S miners would exercise caution.” *CONSOL Pa. Coal Co.*, 43FMSHRC 145, 148 (Apr. 2021) (affirming ALJ’s S&S finding and noting that a miner’scaution when traversing near and under unsupported roof is irrelevant inS&S analysis of missing reflector). 

 

 In interpreting section 77.400(a), theCommission further notes “the most logical construction of the standard is thatit imports the concepts of reasonable possibility of contact and injury,including contact stemming from inadvertent stumbling or falling, momentaryinattention, or ordinary human carelessness.” *Thompson Bros. Coal*,**6FMSHRC at 2097 (emphasizing the importance of considering “the vagaries ofhuman conduct” in standards involving miner’s behavior in affirming the ALJ’sfinding of a violation of 30 C.F.R. 77.400(a) for failure to guard fan bladeswhere the inspector observed contact could stem from “sudden movement,stumbling, or momentary distraction or inattention.”); *Sec’y of Labor v.Consolidation Coal Co.*, 895 F.3d 113, 116, 118 (D.C. Cir. 2018) (holding thatsafety measures, including company policy not to access area of unsupportedroof, are irrelevant to S&S analysis); *Sec’y of Labor v. Ohio ValleyCoal Co.*, 359 F.3d 531 (D.C. Cir. 2004) (noting miner’s failure to turn offmachine when assessing for maintenance led to severing of his arm andsubsequent fatality).

 

Giventhe record as a whole, including the credible testimony of Inspector Mikulsky aswell as the photographic and video evidence of the cited area, I determine itis reasonably likely that a miner could come in contact with the spinning shaftof the 960 Booster Pump. *See Mathies*, 6 FMSHRC at 5 (noting “aninspector’s judgment is an important element” in an S&S determination)(citing *Nat’l Gypsum*, 3 FMSHRC at 825–26); *see also Buck Creek Coal*,52 F.3d at 135 (stating that the ALJ did not abuse his discretion in creditingopinion of experienced inspector). Thus, I determine theviolation was reasonably likely to cause the occurrence of the discretesafety hazard against which the standard is directed, and, therefore, the Secretary has satisfied the secondelement of the *Mathies* test.

 

**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Mikulsky testified the raised, keyed fins on the spinning shaft “can easily cutor grab a miner if he slips down into this.” (Tr. 65:12–16; Ex. P–3-17.) Mikulskystated that in his experience jagged fins on spinning shafts “historically [] canand ha[ve] caused injuries.” (Tr. 65:21–66:1.) 

 

Additionally, inhis post-violation notes, Inspector Mikulsky writes “[i]f [the miner] contacted[the shaft], lacerations, blunt force trauma, sprains, strains, [or] brokenbones could reasonably occur.” (Ex. P–2-2.) Mikulsky, who previously worked asa greaser, stated “if [a miner’s] hand slips in there, a serious injury isgoing to happen, and it could possibly be permanently disabling” or evensomething “catastrophic” such as cutting off the miner’s hand. (Tr. 50:3–4, 83:2–7.)Mikulsky has experience as an accident investigator (Tr. 24:3–9), and based on aminer’s exposure to the hazard of the unguarded spinning shaft, Mikulsky“believe[s] that if a miner’s hand contacted this, if a miner – if a miner waspulled into this by a loose piece of clothing or even holding a rag, that itwould reasonably likely cause severe injury . . .” (Tr. 81:23–84:7.)

 

 Consequently, Idetermine that the hazard of contacting the spinning shaft—either through thedirect contact of the hand, fingers, or arm or by being pulled into the shaftdue to loose clothing or rags—is reasonably likely to cause 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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 finger or wrist fracture 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 would result in hospitalization, surgery, ora long period of recuperation to satisfy the fourth *Mathies* element). TheCommission found a finger or wrist fracture to be a reasonably serious injury. *BuffaloCrushed Stone, Inc.,* 19 FMSHRC 231, 238 n.9 (Feb. 1997) (reversingthe ALJ’s finding of non-S&S and noting that a finger or a wrist fracture arereasonably serious to fulfill the fourth *Mathies* element). The spinningshaft is large enough, spanning 20 inches in diameter (Ex. P–2-1), and fast enough at 300-900 rotations perminute that if an incident occurred, “something serious would happen” and the “500horsepower moving shaft would definitely cause some serious injury” accordingto Inspector Mikulsky, who previously worked as a greaser. (Tr. 80:4–5, 82:24–25.)

 

CONSOL’s witnessesdid not dispute Inspector Mikulsky’s testimony that such injuries could includecutting off the miner’s hand. (Tr. 50:3–4, 83:2–7.) A severed hand is moreserious than a finger or wrist fracture, which the Commission previouslydetermined were “reasonably serious.” *Buffalo Crushed Stone, Inc.* 19FMSHRC at 238. I determine that the injuries expected to result from contactingthe spinning shaft 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. 9075606 is appropriately designated as S&S.

 

**C.        Penalty**

#  

# The Secretary hasproposed a penalty of $355.00. The Commission is notbound by the Secretary’s proposal and reviews penalty assessments *de novo*.*Mach Mining, LLC v. Sec’y of Labor*, 809 F.3d 1259, 1263–64 (D.C. Cir.2016). 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 to CONSOL’s Bailey Minethree violations of section 77.400(a) that becamefinal orders of the Commission. (Ex. P–6-18.) TheSecretary determined CONSOL’s negligence to be low, and the operator does notcontest that decision. CONSOL has not alleged that the proposed penalties wouldadversely affect its ability to continue in business. I determined the gravityof the violation to be S&S with the number of persons affected to be one,the likelihood of injury as reasonably likely, and the expected severity aslost workdays or restricted duty. Finally, CONSOL demonstrated good faith inattempting to achieve rapid compliance when its employees used tape to “danger[]off” the area around the pump and then bolted the guard and welded the guardingframe’s legs to stabilize them. (Ex. P–1-2; Tr.59:19–24, 72:7–16, 75:11–12.) 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$355.00. 

** **

**V. ORDER**

 

In light of theforegoing, it is hereby **ORDERED**that Citation No. 9075606is **AFFIRMED** as written.

            RespondentCONSOLPennsylvania Coal Company, LLC is hereby **ORDERED**to **PAY** a penalty of $355.00within 40 days of this decision.[10]

 

 

 

 

/s/Alan G. Paez

Alan G. Paez

AdministrativeLaw Judge

 

 

 

 

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

 

ErikS. Unger, Esq., U.S. Department of Labor, Office of the Solicitor, 1835 MarketStreet, Mailstop SOL/22, Philadelphia, PA 19103-2968

(unger.erik.s@dol.gov)

 

Kenneth J. Polka,CLR, U.S. Department of Labor, MSHA, Paladin Professional Center, 

631 Excel Drive,Suite 100, Mt. Pleasant, PA 15666-2774

(polka.kenneth@dol.gov)

 

James P. McHugh, Esq.,Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25301

(jmchugh@hardypence.com)

 

/gw

----

[1] In this decision,the hearing transcript and the Secretary’s, Respondent’s, and Joint exhibitsare abbreviated as “Tr.,” “Ex. P–#,” “Ex. R–#,” and“Jt. Ex. #,” respectively. The parties’ post-hearing briefs and reply briefs areabbreviated as “Br.” and “Reply,” respectively. 

 

[2]Section 77.400(a) provides: “Gears;sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; couplings;shafts; sawblades; fan inlets; and similar exposed moving machine parts whichmay be contacted by persons, and which may cause injury to persons shall beguarded.” 30 C.F.R. §77.400(a).

 

[3]Thisdocket originally contained three section 104(a) citations. The parties settledtwo of the three violations prior to the hearing, and only Citation No. 9075606remains.

 

[4] 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).

[5] The parties incorrectlylisted the docket number for this case in their last stipulation (Item 9) whichI have corrected.

[6]Unlike in *MachMining*where the Commission Judge determined the lack of guarding caused noreasonable likelihood of contact since the miner could get no closer than fourfeet from the moving part, in this case the greaser must work within fiveinches of the moving machine part. (Ex. P–2-1); *Mach Mining, LLC*, 33 FMSHRC763, 776 (Mar. 2011) (ALJ) (vacating guarding violation “where a miner couldget no closer than four feet from the missing cover” and therefore contact withthe moving part would be “completely impossible”). 

 

[7]ThoughCONSOL notes that the Quanset flooring slopes (Tr. 99:25–100:5) and has brailleto prevent slipping (Tr. 157:2–9, 186:2–187:5), these facts are irrelevant tothe analysis because CONSOL’s McMillan testified he stands on the pump framewhen greasing the fitting.

 

[8]The Commissionconsiders the surrounding conditions when determining whether the occurrence ofthe hazard is reasonably likely. For example, in *Mathies*, the Commissionconsidered the “damp conditions in the mine, the wet track, and the fact thatthe mantrip’s route traversed curves and grades” in determining that the violationwas S&S. *Cumberland Coal,*33 FMSHRC 2357, n.10 (Oct. 2011) (*citing**Mathies Coal Co.*, 6 FMSHRC 1, 2, 4 (considering the wet conditions ofthe mine in affirming the ALJ’s conclusion that the violation was S&S)); *seePittsburg & Midway Coal Mining Co.*, 15 FMSHRC 2243, 2245 (Nov. 1993)(remanding to the ALJ for failure to properly address all the evidence in hisS&S analysis which should have included consideration of the pathway’s wetand dusty nature).

 

[9] Criado operatedheavy equipment before going to college then earned a master’s degree inmechanical engineering, and at the time of the hearing was a Ph.D. candidate inmechanical engineering. (Tr. 171:19–172:20.) I note that Criado’s approach toexaminations of the 960 Booster Pump area did not inspire much confidence in hisability to identify potential safety issues. At the hearing, Criado said hissafety examinations of the Quanset hut housing the 960 Booster Pump consistedof opening the door, sticking his head in, and making sure there was no smoke,no big leaks, or no weird noises, and he would very rarely if at all venturemore than ten feet in the door. (Tr. 184:14–19, 191:13–19.) 

 

[10]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.