**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 
| SECRETARY  OF LABOR

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                Petitioner,

 

                        v.

 

CONSOL  PENNSYLVANIA COAL 

  COMPANY  LLC,

                Respondent.                                                               |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket  No. PENN 2020-0080

    A.C.  No. 36-07416-511932

 

 

 

    Mine:  Enlow Fork Mine          |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**DECISION AND ORDER**

 

Appearances:              RyanM. Kooi, Esq., & Kenneth J. Polka, CLR, Office of the Solicitor, U.S.Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor

 

                                    PatrickDennison, Esq., Fisher and Phillips, LLP, Pittsburgh, Pennsylvania, for theRespondent

 

Before: Judge Lewis

** **

**STATEMENT OF THECASE**

This case arisesunder the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (The“Act” or “Mine Act”). A hearing was held via Zoom Government on Thursday,August 19, 2021.[1]The parties subsequently submitted briefs. The within Decision has been reachedafter careful consideration of the evidence presented at hearing and argumentsadvanced by the parties.

** **

**LAW ANDREGULATIONS**

** **

30 C.F.R. § 75.517provides, in pertinent part: 

 

Powerwires and cables [. . .] shall be insulated adequately and fully protected.

 

** **

**CREDIBILITYASSESSMENT**

** **

The findings offact are based on the record as a whole and the undersigned’s carefulobservation of the witnesses during their testimony. In resolving any conflictsin the testimony, the undersigned has taken into consideration the interests ofthe witnesses, or lack thereof, and consistencies, or inconsistencies, in eachwitness’s testimony and between the testimonies of the witnesses. In evaluatingthe testimony of each witness, the undersigned has also relied on his demeanor.Any failure to provide detail as to each witness’s testimony is not to bedeemed a failure on the undersigned’s part to have fully considered it. Thefact that some evidence is not discussed does not indicate that it was notconsidered. *See Craig v. Apfel,*212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to discuss all evidence and failureto cite specific evidence does not mean it was not considered).

 

**JOINT STIPULATIONS**[2]

** **

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

2.     At all timesrelevant to these proceedings, Enlow Fork Mine (ID 36-07416) was 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 citation was 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.     Enlow Fork 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 citation in contest was acting in anofficial capacity and as an authorized representative of the Secretary of Laborwhen the citation was issued.

8.     A true copy of thecitation at issue in this proceeding was 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 2021-0080 contains anauthentic copy of the citation at issue in this matter with all modificationsor abatements, if any.

 

*S. Br*. at 1-2 (Nov. 8,2021).[3]

**SUMMARY OFTESTIMONY**

** **

**Witnesses**

** **

Robert Revi

 

At hearing, RobertRevi testified on behalf of the Secretary. In addition to the certificationsRevi held during his employment in the coal industry and with MSHA, Revi earneda Bachelor of Science degree from California University of Pennsylvania. Tr.15-17. At the time of hearing, Revi had worked 9 and 1/2 years as an inspectorfor MSHA.[4]Tr. 15.

 

On February 4, 2020,Revi, accompanied by his field office supervisor, Tom Bochna, went to EnlowFork Mine to conduct a 103(i) spot inspection. Tr. 18. During the inspection,Revi was also accompanied by the operator’s safety escort, Matthew Roebuck. Tr.19.

Revi issuedCitation No. 9079562 to Consol on the day of inspection. Tr. 19; Ex. S-1. Thecitation was served to Roebuck. Tr. 19. In his citation, Revi noted that thepower cable to the Fletcher rib bolter was not being adequately protected fromdamage. Tr. 22; Ex. S-1. The damaged cable was laying on the mine floor betweenthe 25-25.5 wall with damage to both the outer jacket and inner insulation ofthe red and white leads. Tr. 22. The operator had violated mandatory safetystandard 75.517 45 times in two years at the subject mine. Tr. 22. After seeingthe rib bolter and the cable coming off the cable roll of the bolter, Revinoticed damage to the cable. Tr. 22. After finding damage to the outer jacketand inner insulation, Revi informed Roebuck that he would be issuing an S&Scitation. Tr. 23. Revi recalled that Roebuck had, in fact, gone over to tripthe power; however, he did not record such in his notes. Tr. 23. The damagedportion of the cable was approximately 50 feet from the bolter. Tr. 24. 

 

It appeared that apiece of equipment had been running over the cable. Tr. 24. Revi noted damageto the outer jacket and, upon further inspection, damage to the red and whiteinsulation, exposing bare energized copper conductors. Tr. 24-25. This damagecould be observed without touching or moving the cable. Tr. 25. 

 

The damaged cablewas located along a travel way. Tr. 25. The area at issue was a haul road thatwas still used as a primary entrance to get to the end of the track. Tr. 25.The loading crew unloaded supplies to store in the cross cuts and along the ribin the section. Tr. 25. Miners could walk right over the cable. Tr. 26. Aminer, in attempting to move the cable out of the way, might grab the energizedcable unaware of the “bad spot” in it. Tr. 26. The cable was a 4-gauge cablethat handled 480 volts. Tr. 26. The breakers were set to trip at 500 amps. Tr.27. 

 

Revi determinedthat there was a reasonable likelihood of injury because of the location of thecable in a high travel area and the number of people who might encounter it. Tr.27-28. He determined that the number of people affected would be one. Tr. 28.Revi testified that any miner using the rib bolter or handling the cable couldbe injured. Tr. 28-29. Given the potential 480‐volt shock, he had originallydetermined that any injury would be permanently disabling in nature. Tr. 27-28;Ex. S-2. After further reflection, Revi decided that it was more reasonable toexpect that any injury sustained would be fatal in nature. Tr. 32; Ex. S-1.Revi noted that 110 volts can kill most people and that the damaged cablecarried 480 volts. Tr. 32. Revi concluded that this was an S&S violation. Tr.33. Exposure to bare copper conductor leads could result in death byelectrocution. Tr. 34. 

 

The inspectorreferenced Respondent’s assessed violation history that was considered indetermining the penalty imposed. Tr. 36, Ex. S-4. Revi designated the level ofnegligence as “Moderate” because the area in question was located in the trackentry, an area which was examined three times per shift by an agent of theoperator. Tr. 39. In making his determination, he considered circumstances thatmay have contributed to the Respondent’s failure to have found the unsafecondition. Tr. 39. 

 

Revi did notinteract with any crew members the day he issued the citation. Nor did heobserve any equipment, including the Fletcher roof bolter, being operated inthe area. Tr. 41. 

 

Revi found noother violations, excluding the roof bolter cable. Tr. 42. He agreed that thered leads – and not the white leads – were the only actual leads exposed. Tr.50. He had concluded that the cable’s energy was on because there were lights illuminatedon the bolter which was parked in a crosscut. Tr. 52. 

 

Revi conceded thathe did not have an electrical background and had not used an electrical meterto test the cable. Tr. 54-55. He agreed that the rib bolter and cable werepowered with an electrical system that contained ground fault protection. Tr.55. He had not gone to the power center to check whether the breaker waskicked. Tr. 57-58. Revi agreed that the Respondent also had a ground monitoringsystem in place. Tr. 59. He observed, however, that the tripping mechanismsused by the operator did not always trip whenever damage was done to the cable.Tr. 59. 

 

Revi did not knowwhen the cable was damaged nor whether any employee of the operator had beenaware of damage to the cable. Tr. 66. He conceded that he had not recorded inhis notes that the bolter lights were on. Tr. 77. He further agreed that the purposeof the ground wire in the cable was to trip and de-energize the cable if therewas damage to the cable. Tr. 80. 

 

Matthew Roebuck

 

On February 4,2020, Roebuck accompanied Revi and Bochna during their safety inspection. Tr.88-89. Roebuck kept a digital copy of his notes taken during the inspection. Tr.90; Ex. R-1.

 

At the time ofhearing, Roebuck had worked for Consol for a little over 10 years. Tr. 86. Hestarted as an industrial engineer and had become a safety inspector shortly thereafter.[5] Tr. 87. 

Revi calledRoebuck’s attention to the damaged cable. Tr. 97. Roebuck observed “a littlebit” of red and white in the cable. Tr. 97. He informed Revi that he was goingto the load center to knock the power off. Tr. 97. As he approached the powercenter, he noticed that one bolter had power on and one did not. Tr. 99.Because of some question as to what cable connected to what bolter, a mechanic,called to the scene, elected to knock power on both bolters. Tr. 99-100.Roebuck did not recall seeing any lights on either of the bolting machines nearthe 25 wall. Tr. 101. 

 

Roebuck disagreedwith Revi’s “Reasonably Likely” and “S&S” designations. Tr. 102. Roebucktestified that an investigation revealed that power to the damaged cable’sbolter had been knocked at the load center. Tr. 102. To return power to thedamaged cable, the breaker at the load center would need to be reset. Tr. 102.Roebuck observed that abatement involved a mechanic splicing the damaged cable.Tr. 106. 

 

Travis Stout

 

Travis Stout hadworked for Consol for 27 years. Tr. 113. His jobs included: chief electrical foreman,system master mechanic, long haul mechanic, general maintenance foreman, andshift maintenance foreman.[6]Tr. 114. As general maintenance foreman, Stout maintained rib bolters,including bolter cables, on a day-to-day basis. Tr. 116. Stout reviewed thereports of electrical examinations conducted at Enlow Fork. Tr. 119; Ex. R-2. 

 

There were variousground fault protections associated with the power center and the rib bolter. Tr.122-23. These were: a sensitive ground fault on the individual circuit; aground fault on the main circuit; and a backup ground fault on the maincircuit. Tr. 123. A Bender ground fault relay was used at Enlow Fork inFebruary of 2020. Tr. 126; Ex. R-3. 

 

If both the redand white leads were damaged, the cable would not be expected to be energized.Tr. 133-34. 

 

The type ofmachinery in question had a “tone monitor,” which monitored all three phases. Tr.134. If two phases had damage, it would cause the ground wire to trip thebreaker, not permitting reset. Tr. 134. 

 

Stout agreed thatanybody at any time could take the bolter and energize it.[7] Tr. 136.

 

The trip rating onthe sensitive ground fault was set at 300 milliamps. Tr. 137. The setting wasadjustable and could be changed. Tr. 137. The breaker ground fault was probablycloser to 7.5 amps and was also adjustable. Tr. 137. 

Stout expressedsurprise that a shock between 50-150 milliamps could cause fatal results. Tr.138. He agreed that it was possible to have an exposed lead and still havepower on the cable if it was not faulted out. Tr. 140. 

**CONTENTIONS OF THEPARTIES**

 

            TheSecretary contends that the Respondent was moderately negligent in failing toadequately insulate and maintain a power cable in direct violation of 30 C.F.R.§ 75.517. The Secretary contends that—assuming continued normal miningoperation—there was a reasonable likelihood that the hazard contributed to bythe violation would result in fatal injury to one person and would constitutean S&S violation. Finally, the Secretary argues that consideration ofRespondent’s sensitive ground fault system is irrelevant to an S&S inquiry.

 

            TheRespondent contends that the Secretary failed to prove any negligence on behalfof the operator, and that the cable in question was not in fact energized ateither the time it was damaged or the time it was inspected. Respondent arguesthat exposure to the damaged cable would be unlikely. Further, if contactoccurred, Respondent contends that it would result in no lost workdays, in partbecause the operator’s grounding systems protected miners from potentialelectrical injury. Accordingly, Respondent contends that no S&S designationis warranted.

**BURDEN OF PROOFAND STANDARD OF PROOF**

** **

            Theburden of persuasion is upon the Secretary to prove the gravamen of a violationby the preponderance of the evidence. *Jim Walter Res. Inc.,*28 FMSHRC983, 992 (Dec. 2006). *RAG Cumberland Res. Corp.,* 22 FMSHRC 1066, 1070(Sept. 2000). *Jim Walter Res., Inc.,*9 FMSHRC 903, 907 (May 1987). Thisincludes every element of the citation. *In re: Contests of Respirable DustSample Alteration Citations: Keystone Mining Corp.,*17 FMSHRC 872, 878(Aug. 2008).

 

            Commissionprecedents have held that “[t]he burden of showing something by a‘preponderance of the evidence,’ the most common standard in the civil law,simply requires the trier of fact ‘to believe that the existence of a fact ismore probable than its nonexistence.’” *RAG Cumberland Res. Corp.,*22FMSHRC 1070 (Sept. 2000), (quoting*Concrete Pipe & Prods of Cal., Inc.v. Constr. Laborers Pension Trust for S. Cal.,*8 U.S. 602, 622 (1993).

 

            TheUnited States Supreme Court has held that “[b]efore any such burden can besatisfied in the first instance, the factfinder must evaluate the raw evidence,finding it to be sufficiently reliable and sufficiently probative todemonstrate the truth of the asserted proposition with the requisite degree ofcertainty.” *Concrete Pipe & Products of California, Inc. v. Constr.Laborers Pension Trust for S. California.*508 U.S. 602, 622 (1993). Theassessment of evidence is a process of weighing, rather than mere counting:“[T]here is a distinction between civil and criminal cases in respect to thedegree or quantum of evidence necessary to justify the [trier of fact] infinding their verdict. In civil cases their duty is to weigh the evidencecarefully, and to find for the party in whose favor it preponderates.” *Lilienthal’sTobacco v. United States,*97 U.S. 237, 266 (1877).[8]

 

            Whilethe Secretary must prove the elements of a citation by a preponderance of theevidence, this Court’s factual determinations must be supported by substantialevidence.[9]

            As tothis and other controverted matters discussed *intra*, this Court hascredited the opinions of Revi, an experienced MSHA inspector. (*see alsoHarlan Cumberland Coal Co.*, 20 FMSHRC 1275, 1278-1279 (Dec. 1998) and *BuckCreek Coal, Inc. v. MSHA*, 52 F. 3d 133, 135-136 (7th Cir.) recrediting opinions of experienced MSHA inspectors). 

 

**ANALYSIS**

 

Issue I:      Didthe Secretary carry his burden of proving a violation of 30 C.F.R. § 75.517? 

Issue II:     Giventhat the Respondent had in place a sensitive ground fault system when CitationNo. 9079562 was issued, would this preclude a finding of S&S?

Issue III:    Wasthe violation of 30 C.F.R. § 75.517 significant and substantial in nature?

Issue IV:    Assumingthe violation constitutes an S&S violation, is the moderate level ofnegligence designated by the inspector supported by a totality of thecircumstances? 

Issue V:   Assumingthe citation constitutes an S&S violation, is the originally assessedpenalty of $3,046.00 appropriate? 

 

** **

** **

** **

**FINDINGS OF FACT ANDCONCLUSIONS OF LAW**

** **

I.              TheSecretary carried his burden of proving a violation of 30 C.F.R. § 75.517.

 

Section 75.517provides, in pertinent part, that power cables shall be insulated adequatelyand fully protected. 30 C.F.R. § 75.517. I find that Respondent did notadequately insulate or fully protect the cable supplying power to the ribbolter, and therefore, violated 30 C.F.R. § 75.517.

 

At hearing, theSecretary presented testimony from Inspector Robert Revi that he had observed acable lying on the floor of Enlow Fork Mine. Tr. 21-22. The cable, whichsupplied power to a rib bolter, had damage to both the outer jacket and innerinsulation, exposing bare conductor wires. The damaged cable was approximately50 feet away from the bolter, across from the refuge alternative, inby thecorner of the rib, in the No. 4 Entry. Tr. 22, 24, 94.

This Court foundRevi to be credible in his testimony, establishing that the power cable wasnoticeably damaged, not adequately insulated, and not fully protected.[10]

 

Respondent athearing and in its brief questioned whether the cable was energized at the timeit was damaged or at the time the citation was issued. *See inter alia*Tr. 54-57 and R. Br. 3-6. The Respondent, however, has presented no Commissioncase law indicating that the underlying violation of this mandatory safetystandard requires proof of cable energization.[11]

 

This Court findsthat the Secretary carried his burden of proving a violation of 30 C.F.R. §75.517 based, *inter alia*, upon the credible testimony of Inspector Revi.*See also* S. Br. 5.

II.            Respondent’sground fault system in place when Citation No. 9079562 was issued would not, asa matter of fact or of law, preclude a finding of S&S.

 

At hearing and inits post-hearing brief, Respondent advanced various arguments as to why itssensitive ground fault system would have precluded the reasonable likelihood ofserious injury or death and, accordingly, would have warranted against afinding of S&S. *See, inter alia,* R. Br. 13-14, 17-19. 

 

As both a matterof fact and law, this Court rejects Respondent’s arguments. 

 

At hearing,Inspector Revi gave undisputed testimony that the 480-volt power cable at issuecarried a current of 500 amps. Tr. 26-28. Based upon his training andexperience, Revi opined that electrocution could occur with a current as low as15 milliamps. Tr. 32. Respondent’s witness, Travis Scott, testified that thethree different fault systems were normally set at 300-500 milliamps, but withan adjustable setting. Tr. 123, 137-38. On cross-examination, Stout expressedsurprise that a current between 50-150 milliamps could cause fatal results. Tr.138. He further conceded that the sensitive ground fault system might not tripeven if damage were done to the cable. Tr. 139-40. 

 

At hearing, thisCourt did not allow admission of an OSHA document (Secretary’s Ex. S‐3),outlining the effects of electric currents on the human body. Tr. 30-32.[12] This Courtdid permit Inspector Revi, based upon his own experience, to testify as to themilliamps necessary to cause possible fatal injury. Tr. 30-32. In his hearingbrief, the Secretary requested that this Court take judicial notice of theexhibit as it was a public record. *See* S. Br. 10. 

 

Rule 201 of theFederal Rules of Evidence provides, in pertinent part, that the Court mayjudicially notice a fact that is not subject to reasonable dispute because itcan be accurately and reasonably determined from sources whose accuracy cannotreasonably be questioned. Fed. R. Evid. 201. The Court may take judicial noticeat any stage of the proceeding on its own or if a party requests it. *UnionOil Co. of CA*, 11 FMSHRC 289, 300 n.8 (Mar. 1989) (stating that officialnotice may be taken of the existence or truth of a fact or other extra-recordinformation that is not the subject of testimony but is commonly known, or cansafely be assumed, to be true).

 

After carefulconsideration, this Court takes judicial notice of the fact that a currentcarrying 50-150 milliamps can cause—as described in Ex. S-3/P-3—"extremepain, respiratory distress, severe muscular contraction, and possible death.” Tothe extent that Respondent has challenged Revi’s opinions on the basis of hislack of advanced electrical knowledge (*see, e.g.*, R. Br. 3), this Courtfinds that the foregoing judicially noticed fact essentially corroboratesRevi’s testimony regarding the potentially fatal nature of the power cable’scurrent, successfully rebuts respondent’s arguments otherwise, and supports theSecretary’s S&S determination. 

 

Given that theRespondent’s own witness testified that the sensitive ground fault system wasset to trip at 300-500 milliamps—at least double the amount that could causeserious injury or death—such sensitive ground fault system measures, as amatter of fact, would not have protected miners from a potentially fatalelectrical shock. Tr. 137; *see also* S. Br. 11. 

 

As trier-of-law,this Court further agrees with the Secretary’s argument that Respondent’s sensitiveground fault system should be treated as a redundant safety measure and shouldnot be taken into account in reaching an S&S determination. *See* S. Br.11-12. 

 

There is a longline of Commission and Circuit Court cases holding that redundant safetymeasures are not relevant to the S&S inquiry.**The Commission has recentlystated that, “‘[b]ecause redundant safety measures have nothing to do with theviolation, they are irrelevant to the significant and substantial inquiry.’” *ConsolPA Coal Co.*, 43 FMSHRC 145, 148 (Apr. 2021) (citing *Cumberland CoalRes., L.P. v. FMSHRC*, 717 F.3d 1020, 1029 (D.C. Cir. 2013) (noting that considerationof redundant safety measures is inconsistent with the language of § 104(d)(1)of the Mine Act)); *see also**Sec’y of Labor v. Consolidation Coal Co**.*, 895 F.3d 113,118 (D.C. Cir. 2018); *ICG Illinois, LLC*, 38 FMSHRC 2473, 2481 (Oct. 2016);*Black Beauty Coal Co.*, 38 FMSHRC 1307, 1312-13 (June 2016); *Knox Creek Coal Co. v. Sec’y of Labor*, 811 F.3d 148(4th Cir. 2016), *aff’g*36 FMSHRC 1128 (May 2014); *Brody Mining, LLC*, 37 FMSHRC 1687, 1691 (Aug. 2015)*;**Consolidation Coal Co.*, 35 FMSHRC 2326,2330 (Aug. 2013); *Big Ridge, Inc.*, 35 FMSHRC 1525, 1529 (June 2013);*Buck Creek Coal Co. v. FMSHRC*, 52 F.3d 133, 136(7th Cir. 1995); S. Br. 11.

 

In determiningwhether the subject violation was S&S in nature, this Court refuses to setaside this corpus of Commission jurisprudence so as to make an exception tosuch when it comes to evaluating Respondent’s backup protections for damagedpower cables in the context of an S&S determination. 

 

If there is onelesson that the history of American mining has taught, it is that operators’ fail-safesystems often fail. Whether because of degradation due to normal continuingoperations, “Acts of God,” human error, mechanical defects, or, in the mostbitter of cases, intentional disablement, secondary safety measures may notprotect miners from harm. It must be assumed that under continuing operations,the hazard arising out of the unsafe condition will occur. To presume otherwisecan only result in real danger to miners. 

 

            IfRespondent’s argument is taken to its logical conclusion, the existence ofalleged foolproof backup safety systems would always preclude a finding oflikelihood at *Newtown*’s second step, necessarily vitiating theprotective intent of the mandatory safeguard at issue. If operators begin toassume that backup ground fault safety measures will preclude S&S findingsand their inspectors begin assuming such measures will always protect minersfrom electrical hazards associated with damaged wiring and cables, there is areal peril that operators and their agents might become less vigilant or, inthe worst scenario, lackadaisical in ensuring 30 C.F.R § 75.517 safeguardsare adhered to.

This Court alsotakes note of Respondent’s argument that its sensitive ground fault protectionsettings are the lowest in the country and that it should be credited forreducing the likelihood of electrical hazards and encouraged to enhance miners’safety.[13]R. Br. 17-18. Respondent’s safety initiatives are commendable. However,protection of miners’ lives should be sufficient motivation for theinstallation of additional electrical hazard protections. There is somethingjarring about Respondent’s request for praise for doing the right thing.[14] This Courtspecifically holds that such efforts do not warrant a finding of non-S&S.

 

III.          Theviolation of 30 C.F.R. § 75.517 was significant and substantial in nature.

 

In *Mathies CoalCo.*, 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission set forth a four-stepanalysis for determining whether a violation was S&S in nature. 

 

Under the *Mathies*test, the Secretary must prove: 

 

(1) the underlying violation of amandatory safety standard; (2) a discrete safety hazard; (3) a reasonablelikelihood that the hazard contributed to will result in injury; (4) areasonable likelihood that the injury in question will be of a reasonablyserious nature.**

 

6 FMSHRC 1, 3–4(Jan. 1984). 

 

In *MSH**Av. Newtown Energy, Inc.,*38 FMSHRC 2033, 2036-2040 (Aug. 2016), the Commissionmodified *Mathies*by adding a “reasonable likelihood" inquiry to thesecond step. Under *Newtown*, the S&S analysis inquires whether: 

 

(1) there has beena violation of a mandatory safety standard;

(2) based upon theparticular facts surrounding the violation, there exists a reasonablelikelihood of the occurrence of the hazard against which the mandatory safetystandard is directed;

(3)  based uponthe particular facts surrounding the violation, the occurrence of thathazard would be reasonably likely to result in an injury; and

(4) any resultant injury would bereasonably likely to be reasonably serious. 

* *

*MSHA v. ICGIllinois, LLC,*38FMSHRC 24*7*3, 2483 (Oct. 2016) (Althen Dissenting).

 

The Commission, in*Newt**own*, held that the proper focus of the second step in *Mathies*was the likelihood of the occurrence of the hazard the cited standard isdesigned to prevent. *Newtown*, 39 FMSHRC at 2037 n.8. The majorityfurther emphasized that it was essential for the judge to adequately define theparticular hazard to which the violation allegedly contributed. *Id.*at2038. The starting point for determining the hazard should be the actual citedsection. *Id.*

 

For the followingreasons, this Court finds that the Secretary has established that all fourprongs of *Mathies/Newtown*have been met, and therefore Citation No.9079562 was properly designated as S&S.

 

 

A.    A violation of a mandatorysafety standard occurred.

 

The facts anddiscussion *supra* establish a violation of 30 C.F.R. § 75.517, which is amandatory safety standard. 

 

B.    There was a reasonablelikelihood of the occurrence of the hazard.

 

The Secretary neednot prove a reasonable likelihood that the violation itself will cause injury,but rather whether there is a reasonable likelihood that the hazard contributedto by the violation will cause an injury. *Musser Engineering, Inc.* 32FMSHRC 1257, 1280-1281 (Oct. 2010).

 

In the case *subjudice*, the discrete safety hazard created is electrocution due to intentionalor non-intentional contact with the cited cable. The particular factssurrounding the violation created a reasonable likelihood of the occurrence ofthe hazard against which 30 C.F.R. § 75.517 was directed. These particularfacts include the cable’s damaged condition, its location in a main travel way,and the frequent usage of the rib bolter and power cable. 

 

As argued by theSecretary in his brief, even assuming damage only to the outer jacket of acable, a violation of this standard may warrant an S&S designation. *See**Harlan Cumberland Coal Co.*, 20 FMSHRC 1275, 1287 (Dec. 1998) (affirmingan ALJ’s finding that “[w]hen the jacket is ruptured, the cable is notinsulated as designed.”); *U.S. Steel Mining Co.*, 6 FMSHRC 1573, 1574(July 1984) (recognizing that a gash in the outer jacket of a trailing cablesignificantly weakens the protection afforded by inner insulation); *SpartanMining Co*., 30 FMSHRC 699, 707–08 (Aug. 2008) (finding that an S&Sdesignation was appropriate where a trailing cable was damaged, but the outerjacket did not appear to be broken). 

 

Additionally, cableswill likely sustain further wear and deterioration during continued normalmining operations.[15]*Webster Cty. Coal, LLC*, 31 FMSHRC 219, 235 (Feb. 2009) (ALJ); *seealso*S. Br. 7-8; *U.S. Steel Mining Co.*, 6 FMSHRC 1573, 1574 (July1984) (recognizing that a cut in the outer jacket of a cable constituted anS&S violation in part because of the “harsh environment of a coal mine.”). Here,there was evidence of exposed bare copper, further supporting the Secretary’sS&S finding. 

 

The damaged cablewas located near the No. 4 Entry, the main travel way used to access thesection and the mining face. Tr. 25-26. Individuals walking down the No. 4Entry might pick up the cable or step on it, sustaining electrical shock. Tr.26. 

 

The Fletcher ribbolter was readily available for use and its supporting power cable was alsoreadily available. At hearing, Stout noted that, given the great number ofcables laying about, it was difficult to determine which cable connected to aparticular machine, further increasing the chances that the damaged cable mightbe picked up in error. Tr. 29, 99.

 

In view of theforegoing, this Court finds that the Secretary presented sufficient evidence tomeet the second step of *Mathies* and *Newtown*. 

 

C.    Based upon theparticular facts surrounding the violation, the occurrence of the hazard—electrocutiondue to intentional or non-intentional contact with the damaged cable—would be reasonablylikely to result in an injury that would be reasonably likely to be serious,and indeed, fatal*.*

 

Considering thefacts and discussion *supra*, intentional or non-intentional contact witha damaged 480-volt cable, carrying a 300-milliamp current, would be reasonablylikely to cause electrocution and injuries such as electrical shock, burns, or death.Accordingly, the third and fourth steps of *Mathies* and *Newtown*are also met. 

 

Given the evidencepresented and the reasonable inferences flowing from such, the inspectorreasonably concluded that it was reasonably likely that an individual in theentry area would, intentionally or unintentionally, suffer electrocution due tocontact with the damaged cable. The inspector also reasonably concluded thatthe expected injury would affect one person and that, as discussed *supra*,the resulting injury would be fatal.

 

IV.       The moderate level ofnegligence designated by the inspector is supported by a totality of thecircumstances.

 

According to 29C.F.R. § 103.3(d), negligence is considered moderate when “the operator knew orshould have known of the violative condition or practice, but there aremitigating circumstances.” 30 C.F.R. § 100.3, Table X. In *Sec’y of Labor v.Brody Mining, LLC.,*37 FMSHRC 1687, at 1701 (Aug. 2015), the Commissionaffirmed that, in making a negligence determination, Commission judges are notrequired to apply the definitions of Part 100, may evaluate negligence from thestarting point of a traditional negligence analysis, are not limited to an evaluationof allegedly mitigating circumstances, and can consider “the totality of thecircumstances holistically.” 

 

Considering thatthe area where the cable was located was highly traveled and subject toexamination by an agent of the operator three times per shift, that the damagewas readily observable by Revi, and that the damage was probably caused bymachinery running over the cable, it is reasonable to conclude that theoperator or his agents should have known of the violative condition. 

 

Revi found a mitigatingcircumstance in that he could not place an agent of the operator at the cableat the time it was damaged. Tr. 27. Considering the totality of thecircumstances holistically, including Respondent’s contention that it had noknowledge of the damaged cable, this Court finds moderate negligence to be anappropriate designation of Respondent’s failure to adhere to § 75.517requirements.

 

V.        Theoriginally assessed penalty of $3,046.00 for the violation is appropriate. 

 

When undersignedfirst joined the Commission and reviewed the pertinent statutory and case lawregarding penalty assessments, I concluded that the pathway to determining aproper penalty amount was short, simple, and straightforward: conduct a de novoreview; consider 110(i) criteria; explain any substantial deviation from theSecretary’s proposed amount; reach an independent assessment. In the fullnessof time, I learned that the path could often be much more lengthy, arduous, andconvoluted.[16]

 

Despite theforegoing, this Court perceives the pathway to an appropriate penaltyassessment in this matter to be clear and unobstructed.[17]

 

Section 110(i) ofthe Mine Act delegates to the Commission and its judges “authority to assessall civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). In assessing civilmonetary penalties, an ALJ shall consider the six statutory penalty criteria:

 

[T]he operator’s history ofprevious violations, the appropriateness of such penalty to the size of thebusiness of the operator charged, whether the operator was negligent, theeffect on the operator’s ability to continue in business, the gravity of 

 

the violation, and the demonstratedgood faith of the person charged in attempting to achieve rapid complianceafter notification of a violation. 

 

30 U.S.C. 820(i).

 

In *ThunderBasin Coal Co.*, 19 FMSHRC 1495, 1503 (Sept. 1997), the Commission held thatall of the statutory criteria in § 110(i) should be considered in the court’s *denovo* penalty assessment, but not necessarily assigned equal weight. In *MusserEngineering, Inc.,* 32 FMSHRC at 1289, the Commission held that, generallyspeaking, the magnitude of the gravity of the violation and the degree ofoperator negligence are important factors, especially for more seriousviolations for which substantial penalties may be imposed. Here, the gravity ofthe violation as to injury was designated as fatal.

The Secretary hasproposed a penalty of $3,046.00 for the violation cited in Citation No. 9079562.I have considered and applied the six penalty criteria found in § 110(i) of theAct. Consideringall the circumstances, the Secretary’s original proposed penalty assessmentappears appropriate. 

 

The mine and itscontrolling entity are considered large in size under 30 C.F.R. § 100.3. The partiesstipulated that payment of the proposed total penalty would not affectRespondent’s ability to continue in business. Jt. Stip. 6. The history ofassessed violations, admitted into evidence at Ex. S-4, showed 26 violations ofthis standard by this operator in the 15-month period prior to issuance of thiscitation. *See also* Tr. 36; Ex. S-1. 

 

I have addressednegligence and gravity in the discussion above. This Court notes that much ofRespondent’s argument for a reduced penalty rested upon a modification of thegravity finding from “reasonably likely” to “unlikely,” and a change ofnegligence from “Moderate” to “None.” For reasons already discussed *supra*,this Court rejects such suggested modifications. Finally, while accepting thatRespondent acted in good faith in abating the dangerous condition, this Courtaccords more weight to the gravity of the violation and the reasonablelikelihood of fatal injury posed by the electrical hazard in determining anappropriate penalty. 

 

Based on theforegoing, this Court finds that a penalty of $3,046.00 is appropriate. 

 

** **

** **

** **

** **

**ORDER**

 

The Respondent,Consol Pennsylvania Coal Company, is **ORDERED** to pay the Secretary ofLabor the sum of $3,046.00 within 30 days of this order.[18]

 

 

 

 

/s/John Kent Lewis

John Kent Lewis

Administrative LawJudge

 

 

Distribution:

 

Ryan M. Kooi,Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1835 MarketStreet, Mailstop SOL/22, Philadelphia, PA 19103-2968; kooi.ryan.m@dol.gov

 

Kenneth J. Polka,CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt. Pleasant,PA 15666; polka.kenneth@dol.gov

 

Patrick Dennison, Esq., Fisher &Phillips LLP, 6 PPG Place, Suite 830, Pittsburgh, PA 15222; pdennison@fisherphillips.com

 

 

 

Attachment: Secretary’s Exhibit P-3

----

[1]This docket originally included six citations. Prior to hearing, the partiessettled Citation Nos. 9200923, 9200927, 9203371, 9078965, and 7033984. ADecision Approving Partial Settlement was issued. 

[2] At hearing,it was agreed that the parties would submit joint stipulations in theirpost-hearing briefs. Tr. 7-8. Specifically, the joint stipulations weresubmitted as part of the Secretary’s post-hearing brief. 

[3]Hereafter, the joint stipulations, transcript, the Secretary’s exhibits,Respondent’s exhibits, the Secretary’s post-hearing brief, and Respondent’spost-hearing brief are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S-#,” “Ex. R-#,”“S. Br.,” and “R. Br.,” respectively.

 

[4]See Tr. 15-17 for a detailed description of Revi’s mining experience andspecialized certifications. 

[5]See Tr. 86-87 for a detailed description of Roebuck’s mining experience andspecialized certifications.

[6] See Tr.114-16 for a detailed description of Stout’s mining experience and specializedcertifications.

[7]On redirect, Stout testified that if the ground fault was reset withoutcorrecting the condition that caused the fault in the first place, the breakerwould trip out and the cables would be de-energized. Tr. 142. 

[8] “What is themost acceptable meaning of the phrase, proof by a preponderance, or greaterweight, of the evidence? Certainly, the phrase does not mean simple volume ofevidence or number of witnesses. *One definition is that evidencepreponderates when it is more convincing to the trier than the opposingevidence.* This is a simple commonsense explanation which will be understoodby jurors and could hardly be misleading in the ordinary case.” 2 McCormick onEvid. § 339 (7th Ed.). Indeed, the notion of justice being anassessment by weighing has ancient roots, extending at least as far back as the*Iliad’*s Book XXII: “Then, at last, as they were nearing the fountainsfor the fourth time, the father of all balanced his golden scales and placed adoom in each of them, one for Achilles and the other for Hektor.” Homer, TheIliad, Book XXII (Samuel Butler trans., [Publisher] [ed.]) (1898).

[9]When reviewing the finding of fact by a lower court, theCommission will decline to disturb the determination if it is supported bysubstantial evidence.*Wolf Run Mining Co.,*32 FMSHRC 1669, 1687(Dec. 2010); *U.S. Steel Mining Co.,*8 FMSHRC 314, 319 (Mar. 1986). Thistest of factual sufficiency has been a part of Commission jurisprudence since itsinception, required by the plain text of the Mine Act itself. 30 U.S.C. §823(d)(s)(A)(ii)(I). Substantial evidence has been described by the Commissionas “such relevant evidence as a reasonable mind might accept as adequate tosupport [the judge’s] conclusion.” *Rochester & Pittsburgh Coal Co.,*11FMSHRC 2159, 2163 (Nov. 1989) (quoting *Consolidated Edison Co. v. NLRB,*305 U.S. 197, 229 (1938)). 

[10] In assessingthe credibility of witnesses, this Court, as trier of fact, found Revi to be aforthright and honest individual. This Court specifically rejects Respondent’scontention that Revi’s testimony was unreliable and inconsistent; *see also*R. Br. 12. Indeed, the testimony of Travis Stout, Respondent’s witness, that hewas shocked to hear that a current of 50-150 milliamps might cause fatalresults, raised much more doubt in this Court’s mind as to veracity. Tr. 138. 

[11]Whilethis Court does not find that the energization or de-energization of the cable isrelevant to the existence of a violation, I am aware that the status of itsenergization—along with other factors—may affect the likelihood of exposure toa shock hazard, as stated in a recent Commission decision. *Consol PA CoalCo.*, 44 FMSHRC ___, slip op. at 8, No. PENN 2019-0008 (Feb. 10, 2022).

[12]This exhibit is attached hereto and has its original marking of petitioner’s“Ex. P-3.” As discussed within, Revi opined that 15 milliamps could be akilling current. According to this OSHA document, a current of 6-30 milliampscan cause painful shock, loss of muscular control, and a freezing current inwhich an individual cannot let go. This document further indicates that acurrent of 50-150 milliamps can cause extreme pain, respiratory distress,severe muscular contractions, and possible death. One amp equals 1000 milliamps,or milliamperes. Ex. S-3. 

[13]As discussed *intra*, Consol’s settings still are not set low enough toprotect against serious injury or death. 

[14]“[T]he first priority and concern of all in the coal [. . .] industry must bethe health and safety of its most precious resource – the miner.” 30 U.S.C. §801 (2)(a). 

[15]Under the Commission’s *Mathies* test, it is the contribution of theviolation at issue to the cause and effect of a hazard that must be significantand substantial. *U.S. Steel Mining Co.*, 6 FMSHRC 1834, 1836 (Aug. 1984).When evaluating that contribution, it is assumed that normal mining operationswill continue. *See**U.S. Steel Mining Co.*, 6 FMSHRC 1573, 1574(July 1984); *see also U.S. Steel Mining Co.*, 7 FMSHRC 1125, 1130 (Aug.1985). An S&S designation must be based on the facts existing at the timeof issuance and assuming continued normal mining operations, absent anyassumption of abatement or inference that the violative condition will cease. *U.S.Steel Mining*, 6 FMSHRC at 1574; *Gatliff Coal Co.*, 14 FMSHRC 1982,1986 (Dec. 1992).

[16] My appellateodyssey following a proposed American Coal Company penalty was an object lessonon point. See *Sec’y of Labor v. Am. Coal Co.*, 35 FMSHRC 3077 (Sept.2013) (ALJ); *Commission Remand*, 28 FMSHRC 1987 (Aug. 2016); *Decisionon Remand*, 38 FMSHRC 2612 (Oct. 2016); *Commission Split Decision AffirmingALJ*, 40 FMSHRC 1011; *see also**AmericanCoal Co. v. FMSHRC*, 933 F.3d 723, 728(D.C. Cir. 2019), affirming ALJ decisions. 

[17]*But, see*Stephen Crane’s “The Wayfarer”: 

TheWayfarer,

Perceivingthe pathway to truth, 

Wasstruck with astonishment. 

Itwas thickly grown with weeds.

“Ha,”he said,

“Isee that none has passed here 

Ina long time.”

Laterhe saw that each weed

Wasa singular knife.

“Well,”he mumbled at last,

“Doubtlessthere are other roads.” 

[18]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.