**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 

 
| SECRETARY OF  LABOR 

 MINE SAFETY AND  HEALTH

 ADMINISTRATION  (MSHA),

                Petitioner,

 

                        v.

 

CONSOL  PENNSYLVANIA COAL

 COMPANY, LLC,

                Respondent.                                                         |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket No. PENN  2021-0118

    A.C. No. 36-07230-541358

 

    Mine: Bailey  Mine          |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION AND ORDER**

 

Appearances:              RyanM. Kooi, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,Pennsylvania, for the Petitioner, 

 

Kenneth J. Polka,CLR, U.S. Department of Labor, MSHA, Mt. Pleasant, Pennsylvania, for thePetitioner,[1]

 

James P. McHugh,Esq., Hardy Pence LLC, Charleston, West Virginia, for the Respondent.

 

 

Before:                                   Judge Sullivan

 

**                                                      I.         ****INTRODUCTION**

 

This case isbefore me upon a Petition for the Assessment of Civil Penalty filed by theSecretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration(“MSHA”), against CONSOL Pennsylvania Coal Company, LLC (“CONSOL” or“Respondent”), pursuant to section 105(d) of the Federal Mine Safety and HealthAct of 1977 (“Mine Act”), 30 U.S.C. § 815(d). After my August 25, 2022 DecisionApproving Settlement of three of the four penalties in this docket, at issueremains a citation alleging a violation of 30 C.F.R. § 77.205(b), for which theSecretary seeks a civil penalty of $791.00.

 

The partiespresented testimony and documentary evidence for the single citation during ahearing on August 17, 2022, in Pittsburgh, PA. MSHA Inspector Robert W. Swopetestified on 

behalf of theSecretary and CONSOL Compliance Supervisor Keith Woncheck testified on behalfof the Respondent. Both parties subsequently filed post-hearing briefs on October24, 2022.[2]

 

**                  II.        ****GENERALFACTUAL AND PROCEDURAL BACKGROUND**

 

CONSOL owns andoperates the Bailey Mine, which is located in Greene and Washington Counties inPennsylvania and crosses into Marshall County, West Virginia. The Bailey Mine includesa large prep plant, divided into five “subplants” with up to nine floors, somewith half floors in between. On July 28, 2021, Inspector Swope conducted partof MSHA’s quarterly EO1 regular inspection of the prep plant. Tr. 30-31.

 

During hisinspection that day, Inspector Swope issued two citations. The first and onlycitation that is relevant to this proceeding, Citation No. 9204511, was issued becausea 38-inch-wide walkway located in the coal preparation plant was covered with acombination of wet coal slurry and fine magnetite. Tr. 41. Sec’y Ex. P-1. Thisalleged violation of 30 C.F.R. § 77.205(b) wasdesignated as significant and substantial (S&S). To terminate the citation,CONSOL “cleaned all of the extraneous material from the walkway[] and replacedthe missing overhead light to improve the illumination of [the] area.” Sec’yEx. P-1, at 001. At issue here is that alleged violation and its associatedfindings, including whether the violation was S&S, and if the violation is upheld,the penalty to be assessed.

 

**     III.        ****FINDINGSOF FACT AND CONCLUSIONS OF LAW**

** **

**A.   ****Citation No. 9204511for Alleged Violation of Section 77.205(b)**

** **

**1.    ****Fact of Violation**

** **

Before beginninghis inspection that day, Inspector Swope notified the Safety Director’s Officeof his presence and offered for someone to travel with him throughout thefacility. CONSOL Compliance Supervisor Woncheck accompanied Inspector Swopeduring his review of the plant and facility. Tr. 31-32. Inspector Swope beganhis inspection on the sixth floor and moved on to the fifth and a half floorbefore proceeding down a set of stairs to the fifth floor of the 2C subplant. Tr.89, 161.

 

Attached hereto asAppendix A is Resp’t Ex. R-C.1, a map showing the main details of the fifthfloor of the plant, as annotated by Woncheck at hearing. The annotationsinclude the route that the two men took on the floor to reach the 2A subplant. Tr.164, 167. As is shown, when arriving on the fifth floor, Inspector Swope,followed by Woncheck, walked past four coal screens, made a right past two morecoal screens and three feeders, and proceeded to make a quick left beforeturning right onto the right-side concrete walkway of the platform for twoother coal screens, identified as A1 and A2. Tr. 167-69; Resp’t Ex. R-C.1. 

 

At the end of thewalkway, Inspector Swope and Woncheck turned 90 degrees to the left and steppedup onto the 15- to 18-foot long metal-grated catwalk that ran across the frontof the A1 and A2 coal screens. Tr. 91-93, 101, 169-70. The A1 and A2 coalscreens were surrounded by catwalks and concrete on all sides. Tr. 91. On theright side of the coal screens was a step up onto the catwalk, and on the leftside of the coal screens (or at the opposite end of the catwalk) was a stepdown. The catwalk provided access to the front of the A1 and A2 raw coalscreens and the catwalk could only be accessed from the rear, via the right orleft side pathways. Resp’t Ex. R-C.1.

 

Before continuingdown the catwalk in the direction towards the downward step, both men noticed a“material” that was “raining down” like a “shower” from above, and because“slurry was built up” on the surface underneath, they did not proceed further. Tr.45, 171. Woncheck stated that he called to have the problem—a plugged pipe thatwas leaking—fixed. Tr. 170.

 

Once the pipe wasfixed from the floor above, which took about 20 minutes, the men went around tothe other (left) side of the coal screens to view the accumulation. With hiscap lamp, Inspector Swope was able to see that the slurry had “started outabout ten feet.” Tr. 45, 170.

 

According toInspector Swope, given the angle of the walkway on that (left) side, the slurryhad “built up just about to the top of the metal walkway in front . . . to thepoint where it was either running out somewhere else or running over top of thetoe boards of the expanded metal,” approximately five to six inches deep. Tr.45-57. Inspector Swope also noted that the handrails which would guide a minerdownwards were also covered with “a lot of slop.” Tr. 44. At hearing, InspectorSwope described the material as “very wet slurry.” Tr. 55.

 

Woncheck describedthe slurry as a combination of magnetite, water, and ultrafine coal material,that was “real wet,” having the consistency of a “milkshake,” and “soup,” andnot slippery but gritty “like sandpaper.” Tr. 198-99. Woncheck disagreed withInspector Swope on how deep the slurry accumulation was, stating that it wasnot built to the top of the toe boards but rather “a good inch or two below”that point. He measured it to be four-and-a-half inches. Tr. 209-11; Resp’t Ex.B-3, B-5, B-6.[3]At hearing, Woncheck circled on the map where the step on the left side of thecatwalk was located, to indicate where the material had built up. Tr. 171-72;Resp’t Ex. R-C.1.

 

In addition to theaccumulation, Inspector Swope noted that an overhead light in the area wasmissing, which he believed made it even harder to see the accumulated materialand necessitated his use of a camera flash to produce clear photographs of thearea. Tr. 44, 56, 123; Sec’y Ex. P-2, at 005 & 009. Woncheck acknowledgedthe missing overhead light but stated that “there was plenty of light,” hecould see the spillage “just fine,” and he did not need to utilize the flashfeature on his camera when taking photos of the area. Tr. 179.

 

Inspector Swopesubsequently issued Citation No. 9204511 alleging that CONSOL violated section 77.205(b),in that:

 

The38[-]inch[-]wide concrete travelway on the left side of the Plant 2A raw coalscreen was not being kept clear of all extraneous material and other stumbling,slipping, or tripping hazards. A combination of extremely wet coal slurry andvery fine magnetite was covering the entire width of the walkway (38 incheswide), and 8 [to] 10 feet long. The mixture of materials was built up to the topof the toeboards (6 inches high) at the end of the left side walkway. There isa 6 [to] 7 inch step up to the expanded metal walkway that runs across in frontof the elevated metal walkway. The overhead light, directly above the affected(sic) was missing, which significantly reduced the illumination and visibilityat the turn and step down in the walkway. There was also a significant overheadleak of water, coal slurry, and magnetite directly in the walkway. Standard77.205(b) was cited 15 times in two years at mine 3607230 (10 to the operator,5 to a contractor).

 

Sec’y Ex. P-1, at002.[4]

 

In designating thecitation as S&S, Inspector Swope indicated that the presence of accumulatedmaterial was reasonably likely to cause an injury that could be reasonablyexpected to result in lost workdays or restricted duty of one miner. Sec’y Ex. P-1,at 002. Moreover, Inspector Swope categorized the violation as resulting from CONSOL’smoderate negligence. *Id.*

 

**2.    ****Analysis**

 

Section205, titled “Travelways at surface installations,” provides in pertinent partthat:

 

(a)   Safe means ofaccess shall be provided and maintained to all working places.

(b)  Travelways andplatforms or other means of access to areas where persons are required totravel or work, shall be kept clear of all extraneous material and otherstumbling or tripping hazards.

 

30 C.F.R. §205(a)-(b). There is no dispute that the cited area – the catwalk that providedaccess to the front of the two raw coal screens and the adjoining pathways tothat catwalk – constituted a “[t]ravelway” or “platform” that provided a “meansof access to areas where persons are required to work or travel.”

 

As for whether themixture that was falling from the overhead pipe and accumulating on thetravelway and platform below should be considered “extraneous material,” thatterm is not defined in the regulations, so its ordinary meaning applies in thisinstance. *Peabody Twentymile Mining Co. v. Sec’y of Labor*, 931 F.3d 992,997 (10th Cir. 2019) (holding that in “[t]he absence of a definition in thestandard . . . . we apply the ordinary or dictionary definitions of the terms.”) “Extraneous” is defined as “1. Notconstituting a vital element or part. . . . 3. Coming from the outside. . . .” The American Heritage Dictionary of the EnglishLanguage 629 (4th ed. 2009). In the context of the cited area and thepurpose it served at the plant, the material in question was clearly“extraneous,” so, at a minimum, a technical violation has been established inthis instance.

 

In itspost-hearing brief, CONSOL admits as much and thus now concedes a violation. Resp’tBr. at 8. In challenging the S&S designation, however, CONSOL otherwisetakes issue with the inspector’s description of the violation. CONSOL does notagree that the extraneous material in this instance posed any stumbling,tripping, or slipping hazard. *Id*. at 8-10. Consequently, beforedetermining whether the violation was S&S, I address the extent to whichthe Secretary established the scope of the alleged violation of section77.205(b).[5] My findings areas follows.

 

As discussed, thetwo witnesses differed markedly on whether the conditions posed a stumbling orslipping hazard to miners. I note at the outset, as will be discussed furtherherein, that between the two men, Wonchek was substantially clearer on thedetails of how the inspection of the raw coal screen area unfolded. With respectto the extent of the violation, however, the tangible evidence of the citedarea’s actual conditions at the time of the inspection is of more probativevalue.

 

At hearing, eachman relied on the photographs he had taken of the conditions during theinspection and soon afterwards. Having reviewed all of those photographs, Iconclude that, although the photographs may not substantiate all the details ofthe citation, they supply sufficient support for Inspector Swope’s fear that,given the nature and amount of the fallen material and where it hadaccumulated, in theory a miner traveling across the catwalk from right to leftmight not perceive that there was a step down while making a turn onto theadjoining concrete pathway, and lose his footing upon stepping down unexpectantly.The gray, watery nature of the accumulated material and its tendency, if viewedfrom close range in the reduced lighting, to blend in with the left side edgeof the catwalk, would have largely if not totally obscured the step down. This canbe seen most clearly in Sec’y Ex. P-2, at 004 & 013, as well as Resp’t Ex.B-2 & B-3.

 

It is true thatthe photographs taken from farther away, down the adjoining concrete pathway,tend to show that the difference in height between the catwalk and the pathway remainedperceptible. Sec’y Ex. P-2, at 007, 010, & 011; Resp’t Ex. B-1. However, asInspector Swope explained, the risk the conditions posed was not to a minercoming from the direction that those photographs were taken, because a minercoming from that direction would have noticed the accumulated material. Tr. 75.Rather, at risk was any miner coming across the catwalk from its *other*end to round the corner onto the concrete, who would have a significantly worsevantage point to appreciate how the fallen material had obscured the step down.Tr. 51-52, 56, 75.[6]

 

Again, however, theforegoing establishes little more than a technical violation in this instance, forthe record shows that it was unlikely a miner would have traveled across thecatwalk to get to the point where he would turn the corner and take the stepdown. That is because, as the citation states and Swope testified, there was an ongoing“significant overhead leak of water, coal slurry, and magnetite” that causedthe cited conditions. Sec’y Ex. P-1, at 001; Tr. 45-46, 103-04. There is noevidence that either of the two men considered walking through the materialthat was falling at such a rate that Wonchek compared it to a “shower” that was“raining down.” Tr. 171, 180. Indeed, the evidence is that both men circledback and walked around to access the catwalk at its other end even *after*the leaking pipe was addressed from a floor above, and the material had stoppedfalling. Tr.59, 70, 171-72, 195, 232-33. Swope testified that he did not consider itadvisable to walk into the material from either direction. Tr. 56-57, 75-76,86, 105, 141, 143.

 

Reading thecitation in light of Swope’s description of the conditions as he found them, itis possible he may have been concerned that, at some point, the leak might haveceased on its own prior to the discovery of the conditions, and a miner wouldtravel across the catwalk and thus have to navigate the step down at its endthrough the accumulated material. In such circumstances, remote as they mayhave been, I find that in addition to the material at issue being “extraneous”in this instance, it posed the stumbling hazard which the inspector wasreasonably concerned about.[7]

 

 

 

**3.    ****S&S andGravity of the Violation**

 

Aviolation is 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)). In *Mathies*, the fourelements or steps required for an S&S finding were expressed as follows:

 

(1)the underlying violation of a mandatory safety standard; (2) a discrete safetyhazard -- that is, a measure of danger to safety -- contributed to by theviolation; (3) a reasonable likelihood that the hazard contributed to willresult in an injury; and (4) a reasonable likelihood that the injury inquestion will be of a reasonably serious nature.

 

*Id.* at 3-4 (footnoteomitted). More recently, the Commission restated *Mathies* Step 2 in termsof finding that “the violation was reasonably likely to cause the occurrence of thediscrete safety hazard against which the standard is directed.” *NewtownEnergy, Inc.*, 38 FMSHRC 2033, 2037 (Aug. 2016).[8]

 

**a.    *****Mathies*****Step 1 & Step 2**

 

Step 1of the Commission’s S&S analysis is satisfied above, as noted in myconclusion that the basic elements of a section 75.205(b) violation were concededby CONSOL and the evidence further established at least a theoretical stumblinghazard as set forth in the citation.

 

Tosatisfy Step 2, the Secretary must establish that there was at least a reasonablelikelihood that a miner would step into the accumulated material, not realizingthere was a step down to the concrete pathway and be subject to the stumblinghazard against which the standard is directed. Importantly, an S&S determinationis based upon the particular facts surrounding the violation, existing at thetime of the citation issuance, and, in general, assumes normal miningoperations will continue. *U.S. Steel Mining Co.*, 6 FMSHRC 1573, 1574 (July1984); *Northshore Mining Co.*, 38 FMSHRC 753, 757 (Apr. 2016) (ALJ). Itis thus to be made“without any assumptions as to abatement.” *Mach Mining,*LLC, 40 FMSHRC 1, 6 *aff’d*, 748 Fed.Appx. 347, 2019 WL 275718(D.C. Cir. 2019).

The Secretary argues that if the conditions were “permittedto exist unabated under continued normal mining, it is reasonably likely that aminer would have walked into the area and stumbled or slipped on the walkway.” Sec’yBr. at 10. Tellingly, the Secretary’s analysis wholly omits a very significant factthat the inspector included in the citation: the “significant leak” of material from above. As previously discussed, that madeit very much *unlikely* any miner would have attempted to cross thecatwalk while the material continued to rain down in such an obvious manner.

 

As with the violation, and because he did not directly addressthe issue in his testimony, I am again left to infer that the inspector mayhave presumed that there was a possibility that at some point the material couldhave ceased falling without any action by CONSOL. This would have raised therisk that, prior to discovery of the accumulated material, its clean up, andrepair of the light, a miner would cross the catwalk and step onto the pathwaywithout realizing there was a step down.

 

Such a theoretical possibility, while it may be acceptable inthe context of determining whether the alleged violation has been established, doesnext to nothing to advance the notion that there was a “reasonable likelihood”under Step 2 of *Mathies* of it coming to fruition and occurring. That isparticularly true here, where the Secretary offered no evidence on thepossibility that the leak could have ceased without action by CONSOL.

 

Instead, the Secretary solely focused on establishing thereason *why* a miner may have had to cross the catwalk to the lowerpathway. The inspector offered an array of reasons for a miner to have done so.

 

The inspector first cited what appeared to be his overridingconcern: the likelihood of the catwalk being used simply due to the largenumber of employees working throughout all parts of the plant, including the contractoremployees who he described as subject to high turnover rates, given theunpleasant working conditions. Tr. 46-51, 78, 85, 146-47. As can be seen inAppendix A, however, the A1 and A2 raw coal screens and surrounding catwalk andconcrete pathways were in large part set off on their own platform area, andthe inspector eventually agreed that it was an area that would only be accessedif there was a specific task or tasks to be done there. Tr. 91, 94, 134, 136-38;Resp’t Ex. R-C.1.

 

As for what those tasks could be, the inspector’s initialexplanation was that a miner might go to “check” on the overhead leak. Tr. 47,52. If such a “significant” leak was ongoing, however, it was unlikely a minerwould cross the catwalk underneath it, much less go entirely across it to reachthe step down onto the pathway. Moreover, because the leak was fixed from thefloor above, there was no need to cross the catwalk for that reason either. Tr.170-171.

 

The inspector was on more solid footing when describing thepotential for a miner to have to go to the area to service the raw coalscreens, such as, for instance, when dust is thrown off the drive motors ontothe screens, resulting in plug ups, or for the periodic need to adjust the skirtingaround the screens. Tr. 47, 52, 69, 85.[9] Lastly, InspectorSwope discussed the possibility that the missing light might be noticed fromoutside the area, and perhaps a miner would go, or be sent, to repair the lightvia the catwalk without appreciating that the material had covered the stepdown. Tr. 52, 69, 72, 85, 129-31.

However, I need not reach a conclusion with respect to the respectiveevidence on the likelihood of a miner having a reason to cross the catwalk andbe subject to a stumbling hazard upon missing the obscured step down to thepathway. Any evidence that a miner may have had a reason to cross the catwalkto begin with is simply too greatly outweighed by the evidence that the fallingmaterial would have deterred that miner from making it to the end of thecatwalk. That latter evidence prevents the Secretary from establishing *Mathies*Step 2 in this instance.[10]

 

**b.    *****Mathies*****Step 3 & Step4****

 

Inspector Swope testifiedthat if a miner were to turn the corner leaving the catwalk and step onto thepathway without realizing there was a six- or so inch step down, the miner’s resultingloss in balance could cause knee or ankle injuries or injuries stemming from fallinginto a handrail. Inspector Swope characterized these injuries as reasonablyserious and could result in lost workdays or restricted duty. Tr. 56, 77-78. Giventhe conditions, I agree with the inspector on this, and find that *Mathies*Steps 3 and 4 have been satisfied by the Secretary in this instance. *See alsoWolf Run Mining Co.*, 36 FMSHRC 1951, 1958-59 (Aug. 2014) (“not[ing] that aninspector’s judgment is an important element in an S&S determination” aspart of *Mathies* Step 3 and under Step 4 crediting inspector’s testimonyregarding the severity of injuries that had resulted to miner).

 

Due to notsatisfying *Mathies*Step 2, I conclude that the Secretary has failed toestablish that the violation of section 77.205(b) was S&S. I furtherconclude that an injury in this instance was unlikely, and that any injurywould result in lost workdays or restricted duty.

 

**4.    ****Negligence**

 

The Commission“may evaluate negligence from the starting point of a traditional negligenceanalysis.” *Brody Mining*, 37 FMSHRC at 1702. This analysis asks whetheran operator has met “the requisite standard of care—a standard of care that ishigh under the Mine Act.” *Id.* Considerations include “what actions wouldhave been taken under the same circumstances by a reasonably prudent personfamiliar with the mining industry, the relevant facts, and the protectivepurpose of the regulations.” *Id.*; *see also A.H. Smith Stone Co.*,5 FMSHRC 13, 15 (Jan. 1983). The Commission has explained that an ALJ “isnot limited to an evaluation of allegedly ‘mitigating’ circumstances” andshould consider the “totality of the circumstances holistically.” *Id.; seealso* 30 C.F.R. § 100.3(d) (stating that operators must be “on the alert forconditions and practices in the mine that affect the safety or health of minersand to take steps necessary to correct or prevent hazardous conditions orpractices.”).

 

Here, CONSOL isnot challenging Inspector Swope’s assessment of moderate negligence. Indetermining that CONSOL was moderately negligent, Inspector Swope testifiedthat he had recently seen an increase in section 77.205(b) violations,specifically that “the same standard was cited 15 times in less than two yearsat the plant.” Tr. 78-79; Sec’y Ex. P-1 at 001. Additionally, Inspector Swopenoted that spills occurred “everywhere through the plant” and had been “gettingworse ... over the last several years.” Tr. 118. These conditions, in conjunctionwith Inspector Swope’s understanding that individuals go through and look atthe plant “on all three shifts” support his determination of moderatenegligence. Tr. 47, 79, 85. Woncheck himself stated that in his role ascompliance supervisor, he travels every area of the plant every day. Tr.158-59, 220-21. Thus, I credit the inspector’s explanation and affirm thenegligence finding.

 

**                                                              IV.        ****PENALTY**

 

Commissionadministrative law judges have the authority to assess civil penalties *denovo* for violations of the Mine Act. *Sellersburg Stone Co.*,**5FMSHRC 287, 291 (Mar. 1983). The Act requires that the ALJ shall consider sixstatutory penalty criteria in assessing civil monetary penalties:

 

(1)the operator’s history of previous violations, (2) the appropriateness of suchpenalty to the size of the business of the operator charged, (3) whether theoperator was negligent, (4) the effect on the operator’s ability to continue inbusiness, (5) the gravity of the violation, and (6) 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 the fifteenmonths preceding the issuance of Citation No. 9204511, MSHA issued 13violations of section 77.205(b) to the Bailey Mine (seven to operator, four tocontractors). *See*MSHA, *Mine Data Retrieval System*, https://www.msha.gov/mine-data-retrieval-system (last visited November25, 2022). CONSOL agreed in conjunction with the Secretary that the proposedpenalty would not affect its ability to continue in business. Jt. Stip. 6.

 

For Citation No. 9204511,the Secretary proposed a penalty of $791.00. I determined CONSOL’s negligenceto be moderate. *See*discussion *supra* Part III.A.4. I alsodetermined the gravity of the violation to be non-S&S, that an injury inthis instance was unlikely, and that if an injury did occur, it would result inlost workdays/restricted duty to one person. *See*discussion *supra*PartIII.A.3. Moreover, CONSOL demonstrated good faith by fixing the leaking pipeand cleaning up the area promptly. Tr. 83, 149-50, 170. Considering the sixcriteria set forth under section 110(i) of the Mine Act in conjunction with therelevant facts, I hereby assess a penalty of $375.00 for Citation No. 9204511.

** **

**                                     V.        ****CONCLUSIONAND ORDER**

 

It is hereby **ORDERED**that Citation No. 9204511 is **MODIFIED**to reduce the gravity from“reasonably likely” to “unlikely” and to remove the S&S designation. RespondentCONSOL is hereby **ORDERED**to pay a penalty of **$375.00** within 30days of the date of this decision.[11]Accordingly, this case is **DISMISSED.**

 

 

 

 

/s/John T. Sullivan

John T. Sullivan

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution(First Class Mail and E-mail):

Ryan M. Kooi,Esq., U.S. Department of Labor, Office of the Regional Solicitor, 

1835 MarketStreet, Mailstop SOL/22, Philadelphia, PA 19103 (kooi.ryan.m@dol.gov) 

 

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

PaladinProfessional Center, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666 

(polka.kenneth@dol.gov)  

 

James P. McHugh,Esq., Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25301 (jmchugh@hardypence.com) 

 

 

Attachments: 

 

Appendix A:Respondent’s Exhibit R-C.1

 

 

 

 

 

 

 

 

 

 

 

 

 

**APPENDIXA**

 

 

 

 

 

----

[1] On July 13, 2022,I issued an Order Granting Request to Practice for Mr. Polka, a Conference andLitigation Representative (“CLR”). With this Order, Mr. Polka was permitted toconduct this hearing with the understanding that Mr. Kooi would accompany himper the long-standing practice of the U.S. Department of Labor.

[2] In this decision,the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibitsare abbreviated as “Jt. Stip.,” “Tr.,” “Sec’y Ex. #,” and “Resp’t Ex. #”respectively.

[3] After InspectorSwope had taken photos and completed his inspection, Woncheck “wanted to do hisown investigation” and took additional photos, which were admitted at hearing asResp’t Ex. B-1 to B-6.

[4] At hearing, theinspector explained that he meant the material had built up to bottom of themetal grating of the catwalk. Tr. 117.

[5] In an enforcementaction before the Commission, the Secretary bears the burden of proving anyalleged violation.” *Jim Walter Res., Inc*., 9 FMSHRC 903, 907 (May 1987);*Wyoming Fuel Co*., 14 FMSHRC 1282, 1294 (Aug. 1992). The Commission hasdefined the Secretary’s burden as a preponderance of the evidence, “which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 1066, 1070 (Sept. 2000); *Garden Creek Pocahontas Co*., 11 FMSHRC2148, 2152 (Nov. 1989).

[6] CONSOL arguesthat the design of the handrails running along both sides of the turn from thecatwalk to the pathway provided an independent indication that a downward stepexisted. Resp’t Br. at 9. Given the conditions, particularly the reducedillumination resulting from the missing light, I conclude that it would havebeen too much to expect a miner traveling across the catwalk to necessarilypick up and quickly process that the handrail design indicated that there was astep down onto the catwalk.

[7] I note that athearing, Swope did not at all acknowledge that the material ceased falling fromabove before he issued the citation. While Wonchek explained that the leakingpipe was repaired from the floor above, and that repairs were completed *before*the two men proceeded further to examine the conditions in the raw coal screenarea (Tr. 170-71), Swope’s telling included no such sequence of events. Rather,in response to my questioning on his view of the steps necessary to abate thecited violation, he recounted that, upon issuing the citation, he left thearea, expecting it to be first cleaned up, at which point only then the leak(and, afterwards, the missing light) could be addressed. Tr. 70-71, 85. In myview, Wonchek’s version in which the leaking pipe was repaired earlier makesmuch more sense. This is particularly so considering the citation identifiesthe “Action[s] to Terminate” as only cleanup of the material and replacement ofthe overhead light, thus entirely omitting mention of stopping the overheadleak described earlier in the citation. Sec’y Ex. P-2, at 001. This contradictsSwope’s testimony on his abatement expectations, thereby providing furthersupport for Wonchek’s version of events.

[8] Here itmakes no difference which version of Step 2 is applied. *See Consol Pa. CoalCo.*,**43 FMSHRC 145, 148-49 & n.6 (Apr. 2021).

[9]In response, Wonchek explained how someof these tasks could be accomplished without necessarily having to set foot onthe catwalk, such as the maintenance done on screens from the concrete pathwayson either side of the platform. Tr. 175-76; Resp’t Ex. R-C.1. He furtherexplained that access to the raw coal screens via the catwalk in front of themwas only necessary when an electrician had to reset a “tilt switch” upon an indicationof material buildup on a screen. Such would occur “once every two, three months,maybe, depending on conditions.” Tr. 172-74.

[10] Importantly, theSecretary does not argue that it would only be through the exercise of cautionthat a miner would avoid walking through the falling material. The possibilitythat a miner would take precautions is an impermissible consideration in determiningS&S.*See, e.g., Newtown*, 36 FHSHRC at 2044; *Eagle Nest, Inc.*,14 FMSHRC 1119 (July 1992). Rather, the evidence, including that introduced bythe Secretary, is that all it took was basic common sense to not walk throughthe falling material.

[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.