FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

June 9, 2022

AMENDED DECISION AND ORDER1

Appearances: Matthew R. Epstein, Office of the Solicitor, U.S. Department of Labor,

Philadelphia, Pennsylvania, for the Petitioner

Kenneth Polka, CLR, U.S. Department of Labor, MSHA, Mt. Pleasant,

Pennsylvania, for the Petitioner

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

Pennsylvania, for the Respondent

Before: Judge Young

SUMMARY

Citation No. 9204245, 30 C.F.R. § 75.1725(a): Failure to maintain machinery in safe 

operating condition. A horizontal keeper pin, used to retain a vertical breakaway (“shear”) pin, 

was missing from an operational headgate shield.

Facts p. 4 (Slip Op.)

Fact of violation Affirmed p. 5

S&S Affirmed p. 8

Negligence Low p. 12

Penalty $383.00 p. 12

Citation No. 9204250, 30 C.F.R. § 75.503: Failure to maintain electrical face 

equipment in permissible condition. 120-volt area light globes were cracked on an operational

continuous miner located in a crosscut.

Facts p. 13

Fact of violation Affirmed p. 14

S&S Affirmed p. 15

1 This Decision and Order has been amended to correct page numbers in the Summary section

found to be inaccurate due to clerical error.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

v.

CONSOL PENNSYLVANIA COAL

 COMPANY, LLC,

 Respondent.

 CIVIL PENALTY PROCEEDING

Docket No. PENN 2021-0084

 A.C. No. 36-07230-534033

 

 Mine: Bailey Mine
2

Negligence Low p. 18

Penalty $355.00 p. 19

Citation No. 9204257, 30 C.F.R. § 75.1200-1(d): Failure to plot a drill hole that 

penetrated the coalbed being mined. Operator had not accurately marked an alleged gas well 

through which it inadvertently cut.

Facts p. 19

Fact of violation Affirmed p. 20

Negligence None p. 21

Penalty $100 p. 21

I. INTRODUCTION

This case is before me upon petition for assessment of civil penalty filed by the Secretary 

of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, as amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are three citations under 

section 104(a), issued to Respondent, Consol Pennsylvania Coal Company, LLC (“Consol” or 

“Respondent”).2

 The parties presented testimony and documentary evidence at a video 

conference hearing on February 1, 2022, and filed post-hearing briefs.

Consol owns and operates the Bailey Mine, located in Greene and Washington counties, 

Pennsylvania. Jt. Stips. 1, 2; S. Post-Hr’g Br. at 1, 2 (Apr. 13, 2022) (“S. Br.”). The mine is an 

underground coal mine and is subject to the jurisdiction of the Mine Act and the Commission. 

Jt. Stips. 3, 4; S. Br. at 1–2. Citation No. 9204245 alleged that Respondent failed to ensure the 

presence of a keeper pin, risking a gate shield pin becoming a projectile. Citation No. 9204250

alleged that Respondent failed to maintain 120-volt area light globes in permissible condition, 

risking methane ignition. Citation No. 9204257 alleged that Respondent failed to accurately plot 

a drill hole on its mine map. For reasons set forth below, I AFFIRM all three citations. I 

MODIFY the degree of negligence for Citation No. 9204257 from “low” to “none.”

II. STANDARDS

A. Violation

The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Mine operators are generally strictly liable for 

mandatory safety standard violations. See Freeman United Coal Mining Co. v. FMSHRC, 108 

F.3d 358, 361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc., 33 FMSHRC 1759, 1764 (Aug. 

2011).

2 This docket included seven section 104(a) citations. One was bifurcated and consolidated with 

Docket No. PENN 2021-0117. See Order Granting Mot. to Bifurcate and Consolidate at 1 (Jan. 

19, 2022). Three were settled by the parties and approved prior to hearing. See Decision 

Approving Partial Settlement at 1–2 (Feb. 4, 2022).
3

B. Gravity

The likelihood contemplated is that of the expected resulting injury. The severity 

evaluation assumes the occurrence of the hazard. See Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”) 

(emphasis added).

The Secretary defines a severity assessment of “lost workdays or restricted duty” as 

“[a]ny injury or illness which would cause the injured or ill person to lose one full day of work 

or more after the day of the injury or illness, or which would cause one full day or more of 

restricted duty.” 30 C.F.R. § 100.3(e) (2022).3

C. Significant and Substantial (“S&S”)

A violation is properly designated as S&S if, “based upon the particular facts surrounding 

the violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 

1984) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)). The four 

elements required for an S&S finding are expressed as follows:

(1) [T]he 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 the 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, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement 

of the second Mathies step in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016)).

An S&S determination must be based on the assumed continuation of normal mining 

operations. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ 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.”).

D. Negligence

Judges may use a traditional negligence analysis, rather than relying upon Part 100 

definitions. Brody Mining, LLC, 37 FMSHRC 1687, 1701–02 (Aug. 2015) (citing Jim Walter 

Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg Stone Co. v. FMSHRC, 736 

3 The inspector’s characterization of the gravity of the violation, in conformance with Part 100 

for purposes of penalty assessment, is not binding on the Commission, but I recite it here because 

it may be useful in evaluating the enforcement decisions made by the agency.
4

F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100 regulations apply only to the proposal of 

penalties by MSHA and the Secretary of Labor; under both Commission and court precedent, the 

regulations do not extend to the independent Commission, and thus the MSHA regulations are 

not binding in any way on Commission proceedings.”). The reasonably prudent person standard 

should be that of one “familiar with the mining industry, the relevant facts, and the protective 

purposes of the regulation.” Brody Mining, LLC, 37 FMSHRC at 1702.

E. Penalty

The Commission considers the following factors, from Section 110(i) of the Act, in 

assessing penalties under the Act:

[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) (2006).

III. CITATION NO. 9204245

A. Factual Findings

This citation was issued by Inspector Walter Young on March 1, 2021. Ex. GX-1, DOL 

001. He assessed the gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” 

and one person affected. Id. He assessed negligence as “low.” Id. The description read:

The Operator failed to maintain the company number 3 gate shield located on the 

8L Longwall Working Section (006-0 MMU), inby the number 27 crosscut in safe 

operating condition. The Horizontal Keeper Pin to retain the vertical (breakaway) 

pin in place was missing. This condition will permit the vertical breakaway pin or 

pieces of the vertical breakaway pin to become airborne and injury [sic] person 

when its fails. Multiple persons are in the area when the shearer cuts out at the 

headgate and during times when the headgate pan line is pushed. The Operator 

immediately removed the shield from service until the condition could be corrected.

Id. While taking a methane reading during a spot inspection, Inspector Young noticed that a 

horizontal keeper pin was missing from the clevis4 on a headgate shield. Tr. 31, 32. Gate 

shields have more tonnage capacity than line shields and exert more than 30 tons of pressure. Id.

4 The clevis is a housing connected to the pan line of the shield and contains the shear pin where 

it connects to the relay bar, which moves the pan line. The clevis has two “ears,” or tabs, on the 

top and the bottom, and there are holes in those tabs, through which the horizontal retaining pins 

are inserted and then secured with an “r-clip” locked through a hole near the end of the pin, 

though a bolt may sometimes be used. Tr. 31–33.
5

at 38, 41. He described the purpose of the pin as keeping the vertical shear pin in place if it 

breaks as

designed, enabling it to safely fall out the bottom of the clevis. Id. at 33, 36; see Ex. GX-3, DOL 

021. Shear pins break and need to be replaced frequently. Tr. 47.5

Inspector Young; Justin Jones, Consol’s former safety inspector; and James Denham, its 

maintenance supervisor, all acknowledged that the vertical shear pin is intended to break at 

designated points to protect the whole shield system. See id. at 44, 52, 107–08, 142; Ex. GX-2, 

DOL 020. Inspector Young concluded that a shear pin can work its way up out of the clevis 

under pressure from shield operation, and without the keeper pin, it can become a projectile. Tr. 

33–34, 42. He testified that he personally observed a miner injured—he suffered a face 

laceration—by such occurrence at a headgate, and that others have been hit without injury. Id. at 

42.

Messrs. Jones and Denham contend that the shear pins only break under adverse 

conditions—shield twisted or hung up on a rock, uneven bottoms, or muddy conditions. Id. at 

109, 144. Neither has seen or heard of a broken shear pin becoming a projectile. Id. at 109, 110,

111, 146–47. Neither are aware of any injury reports describing such an occurrence, and Mr. 

Jones testified that he searched and found none since 2007. Id. at 111, 113, 147.

Messrs. Jones and Denham testified, and Inspector Young acknowledged, that miners 

typically operate these shields manually from two shields away—seven-to-eleven feet from the 

possible pin hazard. Id. at 68, 116, 149. Inspector Young contended that a miner could be struck 

within eight feet, enabling injuries such as lacerations or eye injuries. Id. at 66. He also 

described the area surrounding gate shields as a transition area—a walkway where many people 

stand while operating the shields. Id. at 42, 45.

B. Disposition

1. Violation

The cited standard states, “Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or equipment in unsafe condition shall be 

removed from service immediately.” 30 C.F.R. § 75.1725(a) (2022). The Secretary argues the 

machinery was not maintained in safe operating condition because Respondent failed to safely 

secure the shear pin. S. Br. at 7. Respondent, however, argues the missing keeper pin does not 

itself make the machinery unsafe. Resp’t’s Post-Hr’g Br. at 5 (Apr. 13, 2022) (“Resp’t Br.”). It 

refers to several other standards, argued as comparable to the cited standard, to support its 

assertion. The cited cases, however, are either inapposite or unnecessary to the decision here.

First, Respondent asserts that “more than mere presence of a condition [is required] to

constitute a violation despite strict liability.” Id. The compared provisions are significantly 

5 Shear pins are hollow and have indentations, or grooves, near each end to enable them to break 

as intended. Tr. 31–32, 50–52.
6

different. Section 75.323 requires ventilation system adjustments or work stoppages when a 

stated level of methane is present. See 30 C.F.R. § 75.323(b)(1)(ii)–(iii) (2022); Resp’t Br. at 5 

n.3. The standard here does have a similar mitigating action requirement, but it also requires that 

machinery be maintained in safe operating condition—it does not only require action when an 

unsafe operating condition exists.6

 The provision and cited cases are, therefore, inapposite to my 

decision here.

Next, Respondent compares the cited standard with Section 56.11001 to argue that a 

violation does not occur simply because an unsafe condition exists. See Resp’t Br. at 6. First, a 

Section 56.11001 violation does in fact occur where an unsafe condition exists, and the cited 

cases do not support contention to the contrary.7 The authority, if applied to a Section 75.1725 

violation, would actually support a violation finding where the Secretary demonstrates an 

improper method of maintaining machinery—e.g., not having all the components present and 

serviceable. This authority is, therefore, inapposite to my decision here.

Finally, Respondent cites multiple ALJ decisions on Section 75.202(a) [roof fall 

protection] to argue that the provision here should be analyzed as a performance-based 

standard—requiring evaluation of the reasonableness of the operator’s efforts. See id. These 

decisions do not control my decision here. More importantly, they are unnecessary because there 

is Commission precedent that directly supports the evaluation of “unsafe operating condition” 

based on a reasonably prudent person standard.

The Commission has established that the standard for a Section 75.1725(a) violation is 

whether a reasonably prudent person would recognize the hazard, stating:

[I]n deciding whether machinery or equipment is in an unsafe operating condition, 

the alleged violative condition is measured against the standard of whether a 

reasonably prudent person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts peculiar to the mining industry, 

would recognize a hazard warranting corrective action within the purview of the 

applicable regulation.

Spartan Mining Co., 30 FMSHRC at 711 (citing Ala. By-Prods. Corp., 4 FMSHRC 2128, 2129 

(Dec. 1982)).

6 Compare Spartan Mining Co., 30 FMSHRC 699, 711 (Aug. 2008) (“The standard imposes two 

duties upon an operator: (1) to maintain machinery and equipment in safe operating condition, 

and (2) to remove unsafe equipment from service.”) (emphasis added), with Jim Walter Res., 

Inc., 19 FMSHRC 1761, 1767 (Nov. 1997), and Amax Coal Co., 17 FMSHRC 48, 51 (Jan. 1995) 

(ALJ) (requiring action upon a finding of excessive methane, not methane prevention itself).

7 The Commission in Lopke Quarries, Inc. required evidence that the asserted safe means of 

access actually was utilized, not only that it existed in addition to an allegedly unsafe access. 

23 FMSHRC 705, 707 (July 2001). The Commission in Henna Mining Co. held that an operator 

“could show that a cited area is not a ‘means of access,’” demonstrating that existence of unsafe 

access would be adequate to prove a violation. 3 FMSHRC 2045, 2046 (Aug. 2006).
7

The Commission has affirmed a violation of this standard for missing components. See 

Martinka Coal Co., 15 FMSHRC 2452, 2456 (Dec. 1993) (affirming a Section 75.1725(a) 

violation for missing belt rollers where substantial evidence from two witnesses showed the 

components were missing). The Commission has also found a violation of another unsafe 

condition standard by comparing it to the identical language in Section 75.1725(a). See So. Ohio 

Coal Co., 13 FMSHRC 912, 915–16, 916 n.2 (June 1991) (quoting Ala. By-Prods. Corp., 4 

FMSHRC at 2129) (“Substantial evidence supports the judge’s finding that the two broken track 

pads presented an unsafe condition.”).

In Martinka Coal Co., a belt structure was missing rollers, causing the belt to rub against 

the structure. 15 FMSHRC at 2456. The Commission affirmed the violation because of the 

presence of combustible accumulations and an ignition source. Id. In So. Ohio Coal Co., the 

Commission found it sufficient that the inspector and operators testified that the condition—

broken track pads—was unsafe. 13 FMSHRC at 916. It concluded that “safe operating 

condition” means that a machine can be used safely by miners. Id. at 915.

Therefore, whether missing or broken components are involved, there still must be a 

danger posed to miners by use of the cited machinery. The Commission recently affirmed two 

Section 75.1725(a) violations as S&S against this operator where cables were found to be in bad 

condition and posed a risk of snapping or dropping loads. Consol Pa. Coal Co., 43 FMSHRC at

150–51, 153–54. There, a cable was found to not be connected as designed—merely wrapped 

around the reel. Id. at 150.

Here, the circumstances are sufficiently similar. The headgate shield clevis was missing 

a component—the horizontal keeper pin. The Secretary has presented credible evidence that the 

shear pins, which are designed to break, have been projected from the clevis upon breaking. The 

inspector noted one known injury where he was present and multiple reports from other miners 

of the hazard occurring without causing injury.

Respondent challenges an unsafe finding by arguing that it is unlikely that the pin would 

be projected. See Resp’t Br. at 6–7. Respondent borrows from its S&S argument a further 

assertion that an injury is unlikely because of likely miner distance from the hazard and lack of 

reports about injuries from projectile shear pins. Id. at 7–8.

I find that Inspector Young’s testimony is credible and reject the operator’s contentions. 

Respondent attempted to rebut the noted occurrence with testimony from Mr. Jones that he could 

not find any such reports going back to 2007. Tr. 111. Inspector Young, however, has been a 

MSHA inspector since 2006. Id. at 24. Thus, the event, which occurred while he was a foreman, 

id. at 61, would have occurred prior to the earliest year checked by Respondent.

In summary, the machinery was missing a component. That component is intended to 

prevent the shear pin from moving upward out of the clevis. There is credible testimony that 

shear pins can move upward and can be projected when broken under heavy pressure. I need not 

address here whether there is a confluence of factors making an injury reasonably likely. It is 

sufficient for purposes of the violation finding that a dangerous condition could be created by use 

of the cited machinery with a missing component. I therefore affirm the violation.
8

2. Gravity

a. Likelihood

The Secretary asserts that the hazard is reasonably likely. I have found that credible 

evidence exists to support that the hazard—a projectile shear pin—could occur. See supra

Section III.B.1. I therefore affirm the determination of likelihood in my penalty assessment.

b. Severity

The Secretary asserts that the severity of the contemplated injury is lost workdays or 

restricted duty. If an injury-causing hazard—a projectile shear pin contacting a miner—

occurred, it could reasonably result in an injury that would cause a miner to miss at least a full 

day of work. Inspector Young testified to an event that caused a face laceration. Further, I find 

credible that an object projected with such force could cause a laceration or damage to an eye. I 

therefore affirm the severity as characterized by the inspector.

c. Number of Persons Affected

The inspector assessed that only one miner would be affected by the hazard. I agree that 

only one miner is likely to be contacted by a piece of a shear pin projected from the clevis. I thus 

affirm the inspector’s enumeration of persons who could be affected.

3. S&S

I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

A missing component from machinery, and the attested possibility that the component 

intended to be controlled by the missing component could cause an injury, is sufficient to 

constitute an underlying violation of a mandatory safety standard for the purposes of Mathies

Step 1. See supra Section III.B.1.

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—a shear pin 

breaking under headgate pressure and becoming a projectile.

Mathies Step 2 is a two-step process: (1) determine the specific hazard the standard is 

aimed at preventing; and (2) determine whether a reasonable likelihood exists that the hazard 

against which the mandatory standard is directed will occur. Newtown Energy, Inc., 38 

FMSHRC at 1868. This finding must be based on “the particular facts surrounding the 

violation.” Northshore Mining Co., 38 FMSHRC 753, 757 (2016).

Here, the standard requires that machinery be maintained in a condition that enables its 

safe use by miners. See So. Ohio Coal Co., 13 FMSHRC at 915. The hazard the standard aims 

to prevent is one resulting from the dangerous operation of the cited machinery. The Secretary 
9

provided a plausible specific hazard posed by the missing component. Therefore, the specific 

hazard here is the shear pin becoming a projectile.

The remaining issue is whether a reasonable likelihood exists that the shear pin will 

become a projectile under pressure from the headgate. Respondent is correct that the likelihood 

of hazard should be based upon the “particular facts surrounding the violation.” Resp’t Br. at 9 

(citing Newtown Energy, Inc., 38 FMSHRC at 2038). I find that the hazard is reasonably likely 

to occur.

The Secretary provided credible testimony that shear pins have broken and become 

projectiles. Regarding particular facts, the standard here was cited on a headgate shield. 

Inspector Young testified that the observed injury-causing hazard occurred while the miner was 

pushing out the headgate. Tr. 42.

I acknowledge that multiple Respondent witnesses testified that they have not seen this 

happen, and more importantly, that if it were to occur, it would require adverse conditions. The 

Commission recently vacated an S&S finding at Step 2 because exposure to a hazard was not 

likely. See Consol Pa. Coal Co., Docket No. PENN 2019-0008, 2022 WL 489572, at *6–7, *9 

(Feb. 10, 2022) (reasoning that contact with a damaged cable would require it to be knocked 

down from its hanging hooks, but there was no evidence that it could be easily knocked to the 

floor). This supports a failure at Step 2 if nothing in the record establishes the likelihood that the 

conditions enabling a projectile pin will occur. That is not the case here, however.

I find that an event that has occurred in the past is reasonably likely to occur, as a matter 

of logic and common sense. See United Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) 

(accepting testimony that the mine had experienced methane ignitions in the past to conclude that 

“evidence supports a finding that there was a reasonable likelihood that the hazard . . . could 

result in the occurrence of an ignition”); Consolidation Coal Co., 6 FMSHRC 34, 38 (Jan. 1984) 

(affirming an S&S finding because evidence of bad roof and testimony of past roof falls made 

the occurrence of the hazard reasonably likely) (emphasis added). The inspector has not relied 

upon conjecture of speculation but on a previous event with which he was personally familiar.

I credit Inspector Young’s testimony that he has witnessed such an occurrence at a 

headgate shield, and that there have been other reports of projectile pins.

8

 Also, assuming 

continued mining operations, it is possible that adverse conditions could present with a keeper 

pin still absent. Crediting testimony about the occurrence of the hazard in the past gives rise to 

8 Inspector Young testified about another miner being injured at the Bailey Mine by a piece of 

shear pin, but he could not remember the miner’s name. Tr. 60–61. He acknowledged that he is 

only aware of one reportable accident, involving the miner he did name. Id. at 63. I find 

Inspector Young to be a credible witness and credit his account of one other known minor injury 

caused by the hazard at issue.
10

the potential that those conditions will converge again in the future. I therefore find that the 

hazard was reasonably likely at Step 2.9

c. Step 3: It is reasonably likely that projectile shear pin contact with a 

miner would cause an injury—laceration or eye damage.

Mathies Step 3 asks whether the hazard, not the violation itself, is reasonably likely to 

cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the 

likelihood of injury, judges must assume the occurrence of the hazard. See Newtown Energy, 

Inc., 38 FMSHRC at 2037.

One only reaches Step 3 of the Mathies analysis after determining that the hazard is 

reasonably likely to occur. I thus assume the occurrence of the hazard—a shear pin breaking 

under the pressure of the headgate and becoming a projectile. The Secretary provided testimony 

that such a pin could contact a miner and cause a laceration. This alone is insufficient for a 

finding that an injury is reasonably likely to occur. Respondent correctly asserts that 

Commission precedent requires more than a finding that there is a “potential” that an injury 

“could” occur. Resp’t Br. at 8 (citing Wolf Run Mining Co., 32 FMSHRC 1669, 1677 (Dec. 

2010); Texasgulf Inc., 10 FMSHRC 498, 500–01 (Apr. 1988)). As with Step 2, I must evaluate 

whether an injury is reasonably likely to occur based on the surrounding circumstances.

The Secretary is correct that Respondent cannot rely on safety measures or miner 

precaution—e.g., helmets and protective clothing—to defend at Step 3. See S. Br. at 9 (citing 

Sec’y of Lab. v. Consolidation Coal Co., 895 F.3d 113, 116, 118 (D.C. Cir. 2018)). There must, 

however, be evidence on the record that miners would be in the area during operations to be 

injured by the hazard. See Consol Pa. Coal Co., 43 FMSHRC at 152, 153 (demonstrating that 

miners worked at the site of the cited equipment, and that others worked nearby). The record 

must also demonstrate that one or more miners would have been at risk of injury from the 

discrete hazard. See Peabody Midwest Mining, LLC, 42 FMSHRC at 387–88 (acknowledging 

that evidence established that more miners than could be accommodated by refuge chambers 

would be present on section at shift change, but finding that the absence of evidence of any 

mining activities or other possible ignition source during shift change negated potential for 

injury).

The Secretary’s brief did not focus on the possibility that other miners beyond the miner 

moving the shields could have been exposed to the hazard. See S. Br. at 11 (relying mostly on 

the average distance between the miner using the remote and the shield being moved). However, 

9 I stress that my decision is narrow and is based on the record facts presented to me at hearing in 

this case. Those facts, involving the same mine and general circumstances as a prior incident 

testified to by the inspector, suggest a greater likelihood that shear pins will fail and be ejected at 

the headgate than in the main mining line. Curiously, this seems to be at variance with a case 

involving the issue tried shortly before the case at bar. See Consol Pa. Coal Co., LLC, 44 

FMSHRC 161, 167 (March 2022) (ALJ) (focusing on reduced likelihood that pins will be 

ejected at headgate shields). I have issued my decision based on the record facts as presented to 

me.
11

Inspector Young testified in two places about the presence of miners. First, he testified that gate 

shields are in transition areas that are in a walkway, but he specified in the same sentence that it 

is “where people stand whenever they push and pull these shields.” Tr. 42. This testimony does 

not explicitly provide that there are miners other than the shield operator exposed to the hazard.

Inspector Young later explained:

[T]here’s [sic] a whole lot of people exposed, especially at the head gate [sic] when 

they cut out. People just don’t run off the base and cut out and come back on to the 

face. The shields are pulled, the guys are standing up in the transition area and 

underneath the gate shields, and these shields – and then the pan line is pushed, and 

these guys come in and cut out.

Id. at 45. This testimony identifies other miners present during shield operation. Therefore, I 

assume the presence of both the shield operator and other miners while the shield is operated 

during continued normal mining operations.

I accept Mr. Denham’s testimony that miners are usually further away—possibly ten 

meters—while operating gate shields because they are usually moving multiple shields. Id. at 

149. All witnesses nevertheless testified that miners at this mine generally operate shields 

manually from two shields away at a distance of seven-to-eleven feet.

Combining the likelihood that a miner would be within the shorter testified distance, the 

testimony that a projected pin has flown eight feet to injure a miner, and the lack of contrary 

testimony to the inspector’s claim that other miners are in the area during shield operation, I find 

that an injury is reasonably likely to occur.

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature.

An inspector’s conclusion that a possible injury is of a reasonably serious nature has been 

held sufficient for Mathies Step 4. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient that the inspector characterized the potential injury as “serious” and noted potential 

injuries). The Commission also does not require a specific type of injury for it to be considered 

serious. See S&S Dredging Co., 35 FMSHRC 1979, 1981–82 (July 2013).

Here, the Secretary provided credible, undisputed testimony that the hazard could result 

in lacerations or eye damage. Respondent focused on the likelihood of the hazard and injury 

occurring, see Resp’t Br. at 11–14, only making conclusory statements that any resulting injury 

would not be of a serious nature, see id. at 13, 14. I find it is reasonably likely that an injury that 

could include lacerations or eye damage would be reasonably serious.10

10 Regarding the likelihood that a miner would be wearing a protective “AirstreamTM” helmet, 

which includes a face shield, I note that the miner injured in the incident described by Inspector 

Young had an AirstreamTM helmet but had his face shield lifted when he was struck by a piece of 

a shear pin. Tr. 69.
12

4. Negligence

I find that the negligence was properly characterized by the inspector as “low.” Those 

charged with inspecting the shields are familiar with the mining industry and relevant facts. 

They should have been familiar with the protective purpose of ensuring the keeper pins were 

present. I therefore find that a reasonably prudent person in their position should have known 

about the violative condition and acted to remedy it.

The Secretary argues that this is a result of moderate negligence because the operator 

knew that these pins commonly break and failed to remedy a violation that it should have 

assumed. See S. Br. at 11–12. Respondent argues that no negligence was demonstrated because 

no one knew about a broken pin. See Resp’t Br. at 14. I disagree with both.

The inspector appropriately noted that these pins consistently break, and that the 

condition could have occurred between the last inspection and the violation. I credit the 

inspector’s explanation, and I agree to a limited degree with the Secretary—this is a condition 

Respondent must work to continually remedy to maintain the machinery in a safe operating 

condition. I therefore affirm the negligence finding.

5. Penalty

The Secretary has entered Respondent’s violation history [MSHA Directorate of 

Assessments, Assessed Violation History Report] into evidence. See Ex. GX-12. Its history 

consists of twenty-nine repeat violations during the inspection period. I have reviewed 

Respondent’s general and repeat violations, and I find that the Secretary has properly considered 

Respondent’s violation history in his calculation. I agree that the Secretary has properly 

evaluated the size of the mine in his calculation. Neither party has stated that payment of this 

penalty will affect Respondent’s ability to continue in business, and the minimal penalty amounts 

do not support such a conclusion.

The proposed penalty of $383.00 was based, in part on the negligence [low] and gravity 

[reasonably likely] assessed in the citation. I have affirmed the reasoning underlying the 

Secretary’s assessments. The citation was terminated immediately by installation of a keeper 

pin. Thus, Respondent demonstrated good faith in achieving rapid compliance following 

citation. Having affirmed the citation as issued, in consideration of the six factors in Section 

110(i) of the Act, I assess a penalty of $383.00, as proposed by the Secretary.
13

IV. CITATION NO. 9204250

A. Factual Findings

This citation was issued by Inspector Young on March 3, 2021. Ex. GX-4, DOL 022. He 

assessed gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” and one 

person affected. Id. He assessed negligence as “low.” Id. The description read:

The Company Number 33, Continuous Miner (s/n- 033K, 2G-4022A) located 

approximately 130 feet inby the number 39 crosscut, in the number 3 entry on the 

9L Working Section (007-0 MMU) was not maintained in permissible condition. 

Four 120 A.C. volt area light globes were cracked. The 2 area lights inby the side 

bolters contained one or more cracks which ranged from 1.5 to 3 inches in length, 

but the body of the globes could not be distorted by hand pressure. The double 

ended area light (2 globes) directly below the rib bolter on the operators [sic] side 

were badly damaged by being covered with cardboard and had overheated. These 

light globes contained numerous, large spider web like [sic] cracks going in 

multiple directions, one contained a hole measuring 0.25 inches wide by 0.375 

inches long. Both of these lights could easily be distorted by hand pressure from 

the heat damage done to them from them being unnecessarily be [sic] covered with 

the cardboard. This condition permits the ambient mine atmosphere to freely enter 

the explosion proof electrical lighting fixtures. Additional confluence of factors 

are included in citation number 9204251 for the methane monitor not being 

maintained in proper operating condition and methane being liberated in this 

working section were used in determining this condition to be Significant and 

Substantial. The Operator immediately removed the machine from service until the 

conditions could be corrected. this [sic] mine liberates 10,835,416 cubic feet of 

methane every 24 hours.

Id., DOL 022–23. He visited the mine for an E02 spot inspection because Bailey Mine liberates 

more than ten million cubic feet of methane every twenty-four hours, and it was on a five-day 

Section 103(i) inspection regimen. Tr. 28, 71, 76. Ventilation was working properly that day. 

Id. at 93.

Inspector Young found 120-volt light globes with cracks and holes. Id. at 73. He noted 

that the damage could have occurred since the last required exam several days prior. Id. at 82. 

He simultaneously noted that the section was liberating methane, obtaining a reading of 0.25 

percent in the Number 3 Entry. Id. at 77. Methane typically increases when the continuous 

miner begins cutting coal, and the miner was inby a crosscut for operation. See id. at 94–95; Ex. 

GX-4, DOL 022.

He also issued a citation for an improperly calibrated methane monitor on the continuous 

miner with the violative globes. See Tr. 78; Ex. GX-5. The miner was deenergized in a test 

when the monitor read 1.5 percent. Tr. 88–89, 122–23. Inspector Young testified, and Mr. Jones 

acknowledged, that the monitor should have read 2.5, but only read 1.7, when the miner shut 

down. Id. at 89, 123.
14

No witnesses were aware of any electrical faults within the enclosure at the time of 

inspection. Id. at 133, 176. Respondent provided photographic evidence—taken of the 

continuous miner outside the mine, several months after the citation—that the lights in the cited 

globes were likely LED rather than fluorescent or incandescent. Id. at 164, 166, 174; Ex. R-7, 

CONSOL 0038, 0041. Inspector Young acknowledged that he did not know what type of lights 

were in the globes, only that they were 120-volt. Tr. 87.

John Baker, Consol’s electrical engineer, testified that LED lights are more efficient but 

still radiate heat. Id. at 160, 163. He recognized that, while close, the circuit in question is not 

intrinsically safe per the graph provided by Respondent. Id. at 170–72; Ex. R-8, CONSOL 0042. 

On cross-examination, he admitted that the dot on the graph is on the “explosive side” of the 

curve, that one cannot predict when an electrical circuit will fail, and that the cited globe was 

“not mechanically intact”—i.e., not explosion proof. Tr. 174, 176–77.

B. Disposition

1. Violation

The cited standard states, “The operator . . . shall maintain in permissible condition all 

electric face equipment required by . . . [§] 75.504 to be permissible which is taken into or used 

inby the last open crosscut of any such mine.” 30 C.F.R. § 75.503 (2022). Permissibility 

requirements “ensure that ignitions occurring within enclosures on mining equipment which 

contain electrical circuits will not escape into the mine atmosphere.” Knox Creek Coal Corp., 36 

FMSHRC 1128, 1131 (May 2014).

Respondent made only a cursory challenge to the violation finding. See Resp’t Br. at 16 

(“If a Violation Existed, the Citation was Improperly Designated as S&S . . . .”). The Secretary, 

nevertheless, still has the burden of proving the violation. The Secretary provided credible 

testimony that cracks and holes existed in the cited globes. Respondent’s electrical engineer 

acknowledged that such conditions make the globes “not mechanically intact.” He further 

testified that an enclosure must be mechanically intact in order to be explosion proof.

I credit the testimony of both witnesses and find that the cited enclosures were not 

mechanically intact. Therefore, they were not explosion proof. Because permissibility is meant 

to prevent ignitions within enclosures from escaping, these enclosures were not permissible. 

Finally, the offending continuous miner was taken and used 130 feet inby the described crosscut. 

I therefore affirm the violation.

2. Gravity

a. Likelihood

The Secretary asserts that the hazard is reasonably likely. I have found that credible 

evidence exists to support the potential ignition in a light fixture penetrating a compromised 

globe. See supra Section IV.B.1. I therefore agree with the determination of likelihood.
15

b. Severity

The Secretary characterized the severity of the contemplated injury as lost workdays or 

restricted duty. The Secretary provided credible testimony that such a hazard could cause 

external and internal burns, broken bones, or concussions. Tr. 81. I find that such injuries would 

reasonably result in an injury that would cause a miner to miss at least a full day of work. I 

therefore affirm the inspector’s characterization of severity.

c. Number of Persons Affected

The inspector assessed that only one miner would be affected by the hazard. While I 

think it likely that more than one miner would be working in the vicinity of the offending 

machine when the hazard was possible, see id. (“Usually it’s the bolters closest to the facing that 

take the brunt . . . .”) (emphasis added), I defer to the inspector’s judgment as to the number of 

persons affected.

3. S&S

I affirm the S&S designation for the following reasons.

a. Step 1: The violation has been established.

The failure to maintain the mechanical integrity of light fixtures on equipment used inby

the cited crosscut is sufficient to constitute an underlying violation of a mandatory safety 

standard for the purposes of Mathies Step 1. See supra Section IV.B.1.

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—ignition of the 

mine atmosphere.

A methane ignition outside of the enclosure is the discrete safety hazard against which 

the standard intended to protect. The reasonable likelihood of this hazard occurring requires two 

things: the reasonable likelihood that an explosion will occur in the violative enclosure, and the 

reasonable likelihood that the escape of that explosion will ignite the mine atmosphere. See 

Knox Creek Coal Corp. v. Sec’y of Lab., 811 F.3d 148, 164 (4th Cir. 2016) (quoting Texasgulf, 

Inc., 10 FMSHRC at 501) (“When the Commission in Texasgulf required the consideration of a 

“confluence of factors” in making an S & S determination, it was specifically concerned with 

whether there was ‘a sufficient amount of methane in the atmosphere surrounding the 

impermissible gaps and ignition sources.”).

i. There is sufficient evidence in the record to find that an 

explosion within the enclosure was reasonably likely.

The violative light fixture is a 120-volt system. Tr. 75, 87, 174. Even if an LED bulb

was present, the circuit would not have been intrinsically safe. Id. at 172; Ex. R-8, CONSOL 

0042. Electrical circuits do fail without warning, and one cannot predict when that will occur. 
16

Tr. 176, 177. In addition to the poor condition of the globes, there was credible testimony by the 

inspector that moisture, erosion, vibration, or just age can contribute to a failed circuit that can 

contribute to an ignition. Id. at 75; see also Knox Creek Coal Corp., 36 FMSHRC at 1134 

(noting similar conditions and causes for failure that were sufficient for affirming an S&S 

designation).

The Secretary relied on the fact of violation and that even LED bulbs, if present, were 

acknowledged to not be intrinsically safe. See S. Br. at 12–13. Respondent correctly notes that 

the reasonable likelihood of an ignition within the light fixture is required, see Resp’t Br. at 17, 

but it fails to provide adequate evidence negating this likelihood. Respondent makes three 

assertions regarding the light fixture that I reject.

First, that there would have to be a failure in the light fixture on the nonprotected side of 

the light’s ballast. Id. There is sufficient evidence in the record to conclude that the circuit could 

fail in the normal course of operations. Further, such an argument would essentially negate the 

danger in any permissibility violation. The purpose of the standard is to prevent the effects of an 

ignition within an enclosure from reaching the outside atmosphere. A light fixture failure must 

be assumed to be able to ignite methane that naturally enters the enclosure.

Second, that there was no evidence of electrical issues with the lights. Id. at 18. This is 

similarly refuted by the requirement to assume continued normal mining operations. There is 

credible testimony from both parties that such circuits can and do fail.

Finally, that the LED lights allegedly present are nearly intrinsically safe—designed to be 

“near the energy level that could not ignite a methane concentration.” Id. Respondent’s own 

electrical engineer admitted, and the provided graph demonstrated, that even LED lights would

not move the circuit to the intrinsically safe side of the line. Though “nearly” intrinsically safe, 

the evidence supports a conclusion that the lights in question, including LED lights, would 

provide a potential source for an ignition.

Even if the use of LED bulbs was sufficient to make an ignition unlikely, there is nothing 

in the record proving that LED bulbs were in fact present at the time of the citation. The picture 

evidence shows what does appear to be an LED fixture through the globes. Tr. 166; Ex. R-7, 

CONSOL 0041. That provided picture, however, was taken outside the mine, months after the 

citation was issued, and after the globes had been replaced. Tr. 174; Ex. R-7, CONSOL 0038, 

0041. No witness testified that LED bulbs were present at the time of the citation.

ii. A preponderance of the evidence establishes that an 

atmospheric ignition was reasonably likely.

I have concluded that an ignition within the light fixture is reasonably likely, and the fact 

of impermissibility would allow such an explosion to escape the enclosure. Bailey Mine is a 

“gassy” mine that liberates more than ten million cubic feet of methane every twenty-four hours, 

and the mine and cited section were liberating methane at the time. Tr. 76–77; Ex. GX- 4, DOL 

023; see also Knox Creek Coal Corp., 811 F.3d at 164 (recognizing that a mine liberating more
17

than 500,000 cubic feet of methane or other explosive gases during a twenty-four-hour period 

was considered “gassy”).

In Knox Creek Coal Corp., the affirmed Commission decision did not disturb the judge’s 

finding that the designation of a mine as “gassy” was sufficient to find that an ignition was 

reasonably likely. See 811 F.3d at 154 (recognizing the judge’s finding that “an explosion could 

escape the enclosures and trigger a larger explosion in the ‘gassy’ mine atmosphere”); 36 

FMSHRC at 1131 (“[G]iven the gassy nature of the mine, sudden methane buildups in the 

explosive range could reasonably be expected to occur.”).

In addition to accepting the possibility of sudden methane buildups as sufficient for S&S, 

the ALJ’s decision in Knox Creek noted that methane accumulations above five percent had 

previously been detected. Docket No. VA 2010-89-R, 2010 WL 5619977, at *43 (Dec. 27, 

2010) (ALJ). He further accepted testimony that “although methane could accumulate to an 

excessive range from places such as the floor or the rib[s], usually it came from the face [as] coal 

was cut.” Id. at *41.

Respondent asserts that the necessary confluence of events was not present. First, it 

provided testimony that there would have to be sufficient methane accumulation for a 

sufficiently long time, that it would have to occur quickly enough for the monitor to trip the 

miner, and that a simultaneous light fixture failure would have to occur. See Tr. 169–70; Resp’t 

Br. at 17. 

I have already addressed the reasonable likelihood of circuit failure, and thus do not 

accept this contention here. Next, it is true that nothing in the record provides that the explosive 

level was reached in the cited entry or other entries. See Tr. 76–77, 84–85, 93, 121–22, 124–28;

Ex. GX-4, DOL 038–39; Resp’t Br. at 17. However, such accumulation does not need to be 

shown at or near the time of the violation. Per Knox Creek, it is sufficient that the mine is 

“gassy,” and that buildups within explosive range are reasonably likely to occur.

As the Commission has consistently held, the S&S analysis must assume the continuation 

of normal mining operations. See Knox Creek Coal Corp., 811 F.3d at 156 (affirming that the 

judge failed to consider methane accumulation “as [it] would have existed had normal mining 

operations continued”); see also 36 FMSHRC at 1132 (citing Black Beauty Coal Co., 34 

FMSHRC 1733, 1740 (Aug. 2012); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–78 

(Apr. 1987)). In this context, we must assume a constant threat of explosive methane in a gassy 

mine. I therefore find a reasonable likelihood that methane levels will rise when the miner cuts 

coal during continued mining operations.

Finally, I also consider that the methane monitor was shown to not be calibrated properly, 

and that more methane than detected would likely be present before it cut the miner’s power. 

See Tr. 78, 123; Ex. GX-5. Taken together, there is sufficient evidence on the record to find that 

an ignition is reasonably likely to occur.
18

c. Step 3: It is reasonably likely that ignition of the mine atmosphere

would result in injury such as burns, broken bones, or concussions.

The reasonable likelihood of occurrence of the hazard has been established. Assuming an 

ignition occurs, I find that it is reasonably likely to result in an injury. An explosion is generally 

reasonably likely to cause injury—burn or concussive—to nearby miners. The issue, therefore, 

is whether the record demonstrates that miners will be in vicinity of the hazard.

Respondent makes no specific assertions contesting Step 3; it only states broadly that 

“the Citation is not reasonably likely to result in a hazard that was reasonably likely to result in 

injuries of a reasonably serious nature.” Resp’t Br. at 18. The Secretary similarly provides little 

in support. See S. Br. at 13 (arguing that the failure of Respondent to dispute that “an LED bulb 

runs on 120 volts and is not intrinsically safe” satisfies Step 3). I find this assertion lacking in a 

Step 3 analysis because it is only relevant to the likelihood of the hazard occurring in Step 2. 

This nonetheless does not prohibit a finding that the violation meets the requirements for Step 3.

The Secretary provided credible testimony that miners would be working near the 

violative continuous miner during operation. I already credited his assessment that at least one 

miner—“bolter[] closest to the facing”—would be injured by an ignition. See supra Section 

IV.B.2.C. With no contrary testimony provided, this is sufficient to find that a miner would be 

injured if the hazard occurred.

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature.

An inspector’s assessment of an injury as reasonably serious has generally been accepted. 

See supra Section III.B.3.d. Here, the Secretary has provided credible testimony that an ignition 

of the mine atmosphere could cause burns, broken bones, or concussions to miners, particularly 

the bolters working near the continuous miner. I find that such injuries are correctly 

characterized as of a reasonably serious nature.

4. Negligence

I find that the negligence was properly assessed as “low.” Those charged with inspecting 

for permissibility are familiar with the mining industry and relevant facts. They should have 

been familiar with the protective purpose of ensuring that light fixture housings (globes) are in 

permissible condition. I therefore find that a reasonably prudent person in their position should 

have known about the violative condition and acted to remedy it.

The Secretary maintains that this violation was a result of low negligence because the 

damage could have occurred in the days since the last required electrical exam. S. Br. at 13. 

Respondent provided no argument against the negligence finding, though it did elicit testimony 

from Inspector Young that the next required exam could have been completed by the day 

following the citation. Tr. 90–91; Ex. GX-4, DOL 040.
19

The inspector appropriately noted that, while a foreman should have seen the lights’ 

condition, the damage could have occurred since the last exam. Tr. 82. I credit the inspector’s 

explanation. I therefore affirm his negligence finding.

5. Penalty

I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here.

Respondent’s history of violations is reflected in Exhibit GX-12. Its history consists of 

twenty-four repeat violations during the inspection period. Accordingly, this factor has already 

been properly considered and is of no consequence in my assessment.

I affirm that the violation’s gravity was properly characterized by the inspector, so I find 

no reason to impose a higher penalty assessment based on that factor. See supra Section IV.B.2–

3. Respondent immediately abated the violation by replacing the light fixtures. See GX-4, DOL 

022. I therefore find that the operator demonstrated good faith in attempting to achieve rapid 

compliance after notification.

The proposed penalty of $383.00 was based, in part on the negligence [low] and gravity 

[reasonably likely] assessed in the citation. I have affirmed the reasoning supporting both 

determinations. Having affirmed the citation as issued, and considering all of the criteria 

relevant to this violation, I assess a penalty of $383.00.

V. CITATION NO. 9204257

A. Factual Findings

This citation was issued by Inspector Young on March 22, 2021. Ex. GX-6, DOL 046. 

He assessed gravity as “unlikely,” “lost workdays or restricted duty,” non-S&S, and two persons 

affected. Id. He assessed negligence as “low.” Id. The description read:

The Operator failed to plot all drill holes which penetrate the coalbed being mined 

on the 75.1200 map at the Bailey Mine. A [sic] alleged gas well was inadvertently 

cut through on the 10J Longwall Working Section (039-0 MMU) at the number 118 

shield at plus number 25+53 and was not shown to exist on the 75.1200 map.

Id. Inspector Young visited the mine upon Respondent’s call that it cut through an uncharted gas 

well. Tr. 179. He issued the citation because the unplotted, intersected well was “a bore hole 

that penetrated the coal seam.” Id. at 184.

The location was not accurately marked on Respondent’s mine map. Id. at 187. Matthew 

Ruckle, Consol’s project engineer, explained, and Inspector Young acknowledged, that 

Respondent conducted a diligent search, using available maps and outside contractors to search 

the surface. See id. at 190, 193, 217, 226–27, 229; Ex. R-13, CONSOL 0070–74. The nearest 
20

plotted “did not find” (“DNF”) drill hole, nonetheless, was marked 273 feet away from the actual 

intersected hole. Tr. 185.

B. Disposition

1. Violation

The cited standard states, “Additional information required to be shown on mine maps 

under § 75.1200 shall include the following: . . . all drill holes that penetrate the coalbed being 

mined . . . .” 30 C.F.R. § 75.1200-1(d) (2022). Respondent did not contest the fact of violation

in its post-hearing brief. See Resp’t Br. at 20 n.5 (contesting only the negligence designation 

because of the recent decision in Consol Pennsylvania Coal Co., 44 FMSHRC at 168, 173,

which affirmed a citation for drill hole plotted 125 feet from its actual location).

The Secretary, nevertheless, still has the burden of proving the violation. An operator is 

liable for a violation of this standard if a drill hole is inaccurately plotted, regardless of the level 

of fault. See Musser Eng’g, Inc., 32 FMSHRC at 1272 (citing Spartan Mining Co., 30 FMSHRC 

at 706; Asarco, Inc., 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 

1989)). The Commission in Musser affirmed the judge’s finding of violation, reiterating the 

level of inaccuracy found:

To say that the operator’s map was inaccurate would be an understatement. If the 

operator’s map were accurate, the [mine] workings would not have been intersected 

because the [mine] really would have been approximately 450 feet away, as 

indicated on the operator’s map.

Id. at 1270 (citing 28 FMSHRC 699, 706 (July 2006) (ALJ)).

First, I agree with the assessment that this was a drill hole that penetrated the coalbed 

being mined. Respondent intersected the hole during mining operations; the inspector testified 

that Respondent “mined past it, and the face opened up,” and that “[t]hey might as well have 

mined through it.” Tr. 209.

Finally, the Secretary provided credible testimony that the closest plotted suspected gas 

well was 273 feet from where the operator intersected the hole in question. This is sufficient 

inaccuracy to sustain a violation. I therefore affirm the citation.

2. Gravity

a. Likelihood

The Secretary asserts that an injury is unlikely. The inspector assessed ignition as 

unlikely because legal gas check results were within safe limits. Tr. 186. With no contrary 

evidence provided, I affirm the inspector’s likelihood finding.
21

b. Severity

The Secretary provided credible testimony that the ignition or fire hazard, though 

unlikely, would result in burns, concussions, or broken bones. Id. at 190. I find that such 

injuries would reasonably result in a miner missing at least one full day of work. I therefore 

affirm the severity found in the citation.

c. Number of Persons Affected

The citation found two miners would be affected by the hazard, noting that two people 

usually run the shear. Id. Respondent provided no contrary testimony. I therefore affirm the 

number of persons affected.

3. Negligence

I find that negligence was improperly assessed as “low.” Respondent is familiar with the 

mining industry and relevant facts, and it has explicit familiarity with the protective purpose of 

the regulation. See supra Section V.B.1. Therefore, I find that a reasonably prudent person in 

Respondent’s position should have known about the violative condition.

Respondent here did not rest its efforts on reviewing old maps that it could not 

reasonably conclude were accurate indicators of boundaries of previous mine workings. Contra 

Musser Eng’g, Inc., 32 FMSHRC at 1286 (affirming gross negligence where it was unreasonable 

for operator to rely on the maps used). Respondent used two third-party contractors—18 Karat, 

Inc. and Blue Mountain, Inc.—to search for the suspected gas wells. Tr. 226–29. Neither 

contractor found the holes in question, and they were marked as DNF. See id.; Ex. R-14, 15. 

Inspector Young even acknowledged that Respondent did the best it could to find the suspected 

wells. Tr. 193.

The Secretary relies on MSHA negligence definitions to argue for low negligence instead 

of no negligence. He acknowledges that there were “considerable mitigating circumstances,” but 

that the operator could have known of the violative condition. S. Br. at 14–15; see also 30 

C.F.R. § 100.3(d) (2022).

An assessment of no negligence is supported, however, under a reasonably prudent 

person standard specific to miners. The Secretary did not provide testimony regarding further 

actions Respondent could have taken. I find that Respondent conducted its search using all 

available means. I therefore reduce the negligence finding from “low” to “none.”

4. Penalty

I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here.
22 

 Respondent’s history of violations is reflected in Exhibit GX-12. Its history consists of 

only two repeat violations during the inspection period. Accordingly, this factor has already 

been properly considered and does not significantly affect my assessment.

I affirm the violation’s gravity as assessed, so that factor also does not carry additional 

weight in my penalty assessment. See supra Section V.B.2. Respondent immediately abated the 

violation by updating its mine map. See GX-6, DOL 046–47. I therefore find that the operator 

demonstrated good faith in attempting to achieve rapid compliance after notification. 

 The proposed penalty was based, in part, on the negligence assessed. Because I find that 

a reduction in negligence is warranted, see supra Section V.B.3, I also find that a penalty 

reduction is appropriate. The proposed penalty was $125.00, based in part on the Secretary’s 

finding of moderate negligence. Because I find that the operator was not negligent, I assess a 

penalty of $100.00. 

VI. CONCLUSION

It is ORDERED that Citation Nos. 9204245 and 9204250 be AFFIRMED as issued. 

It is also ORDERED that Citation No. 9204257 be AFFIRMED with the assessed 

gravity, and that the level of negligence be MODIFIED from “low” to “none.” 

Finally, it is ORDERED that the Respondent pay the Secretary of Labor the assessed 

penalty of $838.00 within 30 days of the date of this decision.11

 

 

 Michael G. Young 

Administrative Law Judge

Distribution (First Class Mail and email):

Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street, 

Mailstop SOL/22, Philadelphia, PA 19103, epstein.matthew.r@dol.gov 

Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666, polka.kenneth@dol.gov

Patrick W. Dennison, Esq., Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA 

15222, pdennison@fisherphillips.com 

11 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.