**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

Office of Administrative Law Judges

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

Washington, D.C. 20004

 

 

|                                                                                                                                    |                                  |
|-----------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------|
| SECRETARY OF  LABOR,                                                                                                                   | :     CIVIL  PENALTY PROCEEDING      |
| MINE  SAFETY AND HEALTH                                                                                                                | :                                     |
| ADMINISTRATION  (MSHA),                                                                                                                | :     Docket No.  PENN 2021-0047     |
| Petitioner,                                                                                                                             | :     A.C. No.  36-10045-527805      |
|                                                                                                                                    | :                                     |
| v.                                                                                                                                      | :                                     |
|                                                                                                                                    | :                                     |
| CONSOL  PENNSYLVANIA COAL       COMPANY, LLC,

                                    Respondent.                                         | :     Mine: Harvey  Mine

:

:       |

 

**DECISION**

 

Appearances:  MatthewR. Epstein, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,Pennsylvania, for Petitioner;

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

for Respondent.

 

Before:                       Judge Paez

 

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

 

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

 

**I. STATEMENT OF THE CASE**

 

In separateorders, Chief Administrative Law Judge Glynn F. Voisin assigned me both DocketNo. PENN 2021-0047 on April 14, 2021, and Docket No. PENN 2021-0058 on May 12,2021. On August 16, 2021, I consolidated these dockets and set them forhearing. The parties settled five of these six violations prior to the hearing,and only Citation No. 9203483 in PENN 2021-0047 remains.[2]

 

MSHA Inspector JasonDetrick issued Citation No. 9203483 at CONSOL’s Harvey Mine on November 17,2020. The citation alleges CONSOL violated 30 C.F.R. § 75.1722(a) by failingto guard the area in front of the 5B tailgate belt drive roller. The Secretarydesignated the citation as significant and substantial (“S&S”),[3] characterizedCONSOL’s degree of negligence as low, and determined the likelihood of injury tobe reasonably likely to result in lost workdays or restricted duty. TheSecretary proposed a penalty of $298.00 which CONSOL timely contested. Theparties filed prehearing reports. 

 

I held a remote hearingon November 17, 2021, via Zoom for Government. At the hearing, the Secretarypresented testimony from MSHA Inspector Jason G. Detrick. CONSOL presentedtestimony from its Lead Safety Inspector Chase Shaffer and Safety InspectorWilliam Hockenberry. I requested post-hearing briefsand permitted CONSOL to raise any objections to the Mine Violation Historyexhibit (Ex. GX–9) by the briefing deadline. Both parties submittedpost-hearing briefs on January 18, 2022, and CONSOL raised no objection to theexhibit. I left the record open until February 2, 2022, for the parties to filereply briefs but received none.

 

**II. ISSUES**

 

In Citation No. 9203483,the Secretary asserts that CONSOL violated section 75.1722(a)by failing to guard the area directly in front of the5B tailgate belt drive roller of the 5B tailgate belt line at crosscut zero. (Tr.17:15–21, 27:8–10; Ex. GX–1-1.) The Secretary believes the violation should beupheld as S&S, reasonably likely to result in lost workdays or restrictedduty, and the result of a low degree of negligence. (Tr. 17:21–24, 18:4–8; Ex.GX–1-1; Sec’y Post-hr’g Br. at 5–11.) CONSOL contests the fact of the violation,the gravity and negligence determinations, the S&S designation, and penalty.(Resp’t Post-hr’g Br. at 5–14; Tr. 18:12–15.)

Accordingly, thefollowing issues are before me: (1) whether CONSOL violated the guardingprovisions of 30 C.F.R. § 75.1722(a) as alleged in Citation No. 9203483; (2) whetherthe gravity of such a violation would result in “lost workdays or restrictedduty”; (3) whether the citation was properly designated as S&S; (4) whetherCONSOL’s negligence in committing the violation is “low”; and (5) theappropriate penalty for the violation, if any.

 

            Forthe reasons set forth below, Citation No. 9203483 is **AFFIRMED**.

 

**III. FINDINGS OF FACT**

 

At the hearing,the parties stipulated to the following items verbatim in a joint exhibit (Jt. Ex. 1; Tr.83:3–10):

 

1.     CONSOLPennsylvania Coal Company, LLC (“CONSOL”) is an “operator” as defined insection 3(d) of the Mine Act, 30 U.S.C. § 802(d).

2.     At all timesrelevant to these proceedings, Harvey Mine, Mine ID 36-10045, was and is amine, as defined in section 3(h) of the Mine Act.

3.     CONSOL’soperations at the Harvey Mine are subject to the jurisdiction of the Mine Act.

4.     This proceeding issubject to the jurisdiction of the Federal Mine Safety and Health ReviewCommission and its designated Administrative Law Judge, pursuant to section 105and 113 of the Mine Act.

5.     True copies ofeach of the citations that are at issue in this proceeding were served on theRespondent or its agent as required by the Mine Act.

6.     Exhibit A,attached to the Secretary’s petition in the above-referenced dockets, containsauthentic copies of the citations that are at issue in this proceeding with allappropriate modifications or abatements, if any. 

 

**A.        Operationsat the Harvey Mine**

 

CONSOL operatesthe Harvey Mine, an underground coal mine in Greene County, Pennsylvania that utilizesboth continuous mining and longwall mining. (Ex. GX–9; Tr. 93:20–23, 106:24–107:9.) Continuous miner machines drive into thecoal seam and advance to create entryways used for travel into and out of the mineand to set up longwall operations. (Tr. 106:24–107:9.) The continuous miners alsocreate passageways perpendicular to the entryways, called crosscuts, whichconnect the entryways, and when viewed from above these entryways and crosscutsresemble a grid. (Ex. R–5.)In one of these entryways, CONSOL constructed the 5B tailgate belt line. (Tr. 23:18–24:3,93:14–23.) The 5B tailgate belt line dumps coal onto the “mother” belt that bringsmined coal up to the surface for processing. (Tr. 23:25–24:7.) The 5B tailgate beltline utilizes a conveyor belt made of many splices, or pieces of belt, patched togetherthat circulates around the length of the belt line. (Tr. 38:1–2, 108:2–8; Ex. GX–2-1.)The belt line must be lengthened by adding new splices every few days as thecontinuous miner machine cuts deeper into the coal seam. (Tr. 37:22–38:5, 106:25–107:23.)

 

The 5B tailgatebelt line is constructed to sit closer to one side of the entryway to provideminers a passageway, and CONSOL built wooden walkways along the wide side ofthe belt line for miners to traverse the 5B tailgate belt entryway. (Tr. 30:8–17,31:5–32:4.) In addition, CONSOL built a wooden walkway infront of the 5B tailgate belt drive roller—perpendicular to the wide sidewalkway—which goes underneath the bottom of the conveyor belt that revolvesaround the belt line. (Tr. 24:19–25:4, 57:10–24.) This wooden walkway providesaccess to the opposite or “tight” side of the belt line. (*Id.*; 58:20–25,59:18–21; Exs. GX–3-1-2.) The tight side is the narrow side closest to the rib(or mine wall) where miners cannot traverse the walkways without turningsideways due to the narrow clearance. (Tr. 36:2–9.) The record indicates awooden walkway was also built on the tight side. (Tr. 58:18–59:8; Ex. GX–3-1.) 

 

The perpendicular woodenwalkway in front of the 5B tailgate belt drive roller is constructed ofwooden planks and rests about six inches off the ground with a width of two-and-a-halfto three feet. (Tr. 30:6–7, 16–17, 31:9–10, 21–25, 32:1–4.) The vertical distancefrom this walkway to the bottom of the conveyor belt running overhead is approximatelyfive and a half feet. (Exs. GX–1-4, GX–3-2; Tr. 33:7–9, 67:22–25, 76:13–77:9, 105:12–18,119:22–120:1.) A miner would need to bend down to get under the belt line here.(Tr. 68:3–4, 76:25–77:9.) The bottom conveyor belttravels towards the 5B tailgate belt drive roller. (Tr. 33:11–16, 35:3–6;Ex. GX–2-1.) The 5B tailgate belt drive roller is part of the machinery thatpowers the conveyer belt and is located approximately at crosscut one on the 5Btailgate belt line. (Tr. 25:22–26:3, 26:12–27:2.) Thedrive roller is some four feet in diameter and spans the width of the belt,which is some 52 inches. (Tr. 81:9–13, 100:10–15; Ex. GX–1-3.) The perpendicularwooden walkway sits no more than three and a half feet from the 5B tailgate beltdrive roller. (Tr. 33:17–20, 67:8–17,103:8–10; Exs. GX–1-4, R–1 at 002, R–4 at 015.)

**B.        PreshiftExaminations and Repair of Ripped Belt**

 

As required bylaw, CONSOL’s preshift examiners survey the conditions at the Harvey Mine threetimes a day prior to the start of the day, afternoon, and midnight shifts. (Tr.38:9–17, 44:3–6, 51:16–52:14.) During the day shift on November 16, 2020,around 1:00 p.m., workersshut down the 5B tailgatebelt line to repair the conveyer belt, which was ripped in two. (Tr. 50:18–21,51:3–18, 97:2–15; Exs. GX–1-3, R–1 at 002.)

 

Torepair the ripped belt, miners made two complete splices of belt fragments tocreate one long conveyer belt. (Ex. R–1 at 002; Tr. 38:1–2.) After splicing thetorn belt, miners on the midnight shift began training the belt. (Ex. R–3 at013;Tr. 73:4–9, 108:5–8.)“Training the belt” means adjusting the rollers under the conveyor belt so itruns in the middle of the belt structure, thus preventing damage to the conveyerbelt from rubbing against the stands. (Tr. 36:21–25, 72:24.) Training the beltoccurs at the tailpiece area of the 5B tailgate belt line closest to theworking face, which lies at the opposite end of the drive roller’s locationwhere Inspector Detrick issued the citation. (Tr. 111:15–112:18, 113:1–7.) Soonafter miners on the midnight shift trained the 5B tailgate conveyer belt (Ex.R–3 at 013), CONSOL’s preshift examiner traveled the area to examine the beltline in preparation for the day shift that began at 8:00 a.m., yet hadstaggered miner arrival times of 7:15 a.m., 7:30 a.m., and 7:45 a.m. due toCOVID-19 restrictions. (Tr. 51:19–52:7, 73:21–24; Ex. R–2 at 003.) The 5B beltline was idle during the preshift examination that took place on November 17 from5:00 a.m. to 6:53 a.m. (Tr. 50:12–14; Exs. GX–1-6, R–2 at 003.) At some point prior to the preshift examination theguarding around the 5B tailgate drive roller was removed. (Tr. 43:6–17,53:6–14; Ex. GX–1-3.) The 5B tailgate belt line was turned back on around 7:30a.m. on November 17, 2020, just prior to Inspector Detrick’s inspection at8:15 a.m. (Tr. 43:8–13, 97:19–21.)

** **

**C.        Detrick’sInspection of the Harvey Mine**

 

MSHA Inspector JasonDetrick inspected the Harvey Mine for a routine quarterly inspection. (Tr. 17:13–14,23:10–12, 43:12–13, 47:10–12.)Detrick has servedas an MSHA Inspector for the last eight years. (Tr. 22:15–16.) Prior to hiswork as an MSHA Inspector, Detrick worked approximately fifteen years inunderground mines with experience in a myriad of positions, including equipmentoperator, shuttle car operator, and beltman, for a combined total of 23 yearsin mining. (Tr. 22:22–25.) Harvey Mine’s Lead Safety Inspector Chase Shafferand Safety Inspector William Hockenberry accompanied Detrick during his inspection.(Tr. 85:22–23, 117:16–20.) Shaffer has worked at Harvey Mine for six years andin the mining industry for over ten years with all his roles focused on minesafety. (Tr. 84:16–21, 85:24–86:2.) Hockenberry has worked in the miningindustry for eight years. (Tr. 115:9–15, 24–25, 116:1–5.)

 

Inspector Detrick arrivedat the Harvey Mine at 7:30 a.m. on November 17, 2020. (Tr. 17:13–14, 23:10–12,43:12–13, 47:10–12.)Hefirst checked the mine map and preshift examination records. (Tr. 48:2–5; Ex.GX–1-6.) The preshift records listed no upcoming maintenance tasks. (Tr.71:9–12, 72:6–7; Ex. GX–1-6.)Detrick startedthe inspection of the 5B tailgate belt at 8:15 a.m. (Tr. 43:12–13.) Inspector Detrick and Shaffer began at the zero crosscutof the 5B tailgate section. (Tr. 24:2–7, 16–20.) They proceeded along the sideof the belt line facing the exit. (*Id.*) Both Inspector Detrick andShaffer took notes as they walked. (Tr. 29:10–14, 92:6–18; Exs. GX–1-2–4, GX–1-5,R–1.) They walked to the 5B tailgate drive motor area, which was wet,muddy, and “sloppy,” as indicated by the sight of dark ground instead of whiterock dust. (Tr. 29:24–30:5, 41:21–24; Ex. GX–3-2.) Inspector Detrick observedthat the bottom of the 5B tailgate conveyer belt was in operation and runningin the direction of the drive roller. (Tr. 24:11–13,33:13–16.) Inspector Detrick noted the belt contained no coal since the beltline had just recently started running. (Tr. 43:8–13, 94:3–4; Ex. GX–1-6.) Noguarding stood in front of the 5B belt drive roller adjacent to the walkway leadingto the tight side, nor was there any guarding above that walkway to protectminers from the bottom of the conveyer belt overhead. (Tr. 33:21–34:2; Ex. GX–1-1.)Inspector Detrick issued Citation No. 9203483 whichonly addressed the guarding missing in front of the 5B belt drive roller. (Ex. GX–1-1;Tr. 25:2–6.)

 

**D.        Issuanceof Citation No. 9203483 and its Abatement**

** **

In Citation No.9203483 (Ex. GX–1-1), Inspector Detrick wrote:

 

The 5B Tail Gate Belt Drive roller located at 0xc ofthe 5B Belt Conveyor is not guarded to prevent miners from coming into contactwith moving belt components. If this condition continues to exist, it willincrease the likelihood of injuries to those miners of a serious nature. Allmachine parts which may be contacted by persons and which may cause injuryshall be guarded.

 

Inspector Detrick issued Citation No.9203483 at 8:30 a.m. for missing guarding in front of the 5B belt drive roller per section 75.1722(a). (Tr. 27:8–10, 73:4–5; Ex. GX–1.) He designated thecitation as S&S, as reasonably likely to lead to an injury resulting inlost workdays or restricted duty, and as low negligence. (Tr. 17:21–24; Ex. GX–1-1.)Inspector Detrick determined the hazard in question could affect one person, likelyeither a mine examiner or a belt person. (Tr. 38:20–22; Ex. GX–1-1–3.) 

 

Shaffer andHockenberry found guarding panels nearby leaning up against the mine rib. (Tr.96:14–18, 123:22.) To abate the citation, they turned off the 5B belt line and installedthe six-foot guarding panel in front of the 5B belt roller. (Tr. 75:16–22,108:19–21, 123:13–18; Exs. GX–1-1, GX–1-4.) Although the citation only addressedthe missing guarding in front of the belt drive roller, Shaffer and Hockenberryalso installed overhead guarding above the walkway in front of the 5B driveroller (*id.*), creating a cross-under so miners could safely go under thebelt to the tight side while the belt line ran. (Tr. 99:7–11.)

 

**IV. PRINCIPLES OF LAW**

 

**A.        Elementsfor an S&S Violation**

 

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

 

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

* *

*Peabody MidwestMining*,42 FMSHRC 379, 383 (June 2020) (citing *Newtown Energy*, 38 FMSHRC 2033,2037–38 (Aug. 2016));*Mathies Coal Co.*, 6 FMSHRC 1, 3–4(Jan. 1984) (footnote omitted); *see also Buck Creek Coal, Inc. v. Fed. MineSafety & Health Admin.*, 52 F.3d 133, 135–36 (7th Cir. 1995) (affirming theapplication of the *Mathies* criteria); *Austin Power, Inc. v. Sec’y ofLabor*, 861 F.2d 99, 104 (5th Cir. 1988) (approving the *Mathies* criteria); *CONSOL Pa. Coal Co.*, __FMSHRC __, 2022 WL 489572 (Feb. 10, 2022) (holding substantial evidence mustsupport the theory of hazard under the second *Mathies* element). TheCommission has specified that evaluation of the likelihood of injury should bemade assuming continued normal mining operations. *U.S. Steel Mining Co.*,7 FMSHRC 1125, 1130 (Aug. 1985) (quoting *U.S. Steel Mining Co.*, 6 FMSHRC1573, 1574 (July 1984)).

** **

**B.        NegligenceDeterminations**

 

Commission Judgesdetermine negligence under a traditional analysis rather than relying on theSecretary’s regulations at 30 C.F.R. § 100.3(d). *Mach Mining, LLC**v.Sec’y of Labor*, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (quoting *BrodyMining, LLC*, 37 FMSHRC 1687, 1702 (Aug. 2015)). In evaluating thesefactors, the negligence determination is based on the “totality of thecircumstances holistically,” including factors such as the protective purposeof the regulation, and what actions would be taken by a reasonably prudentperson familiar with the mining industry. *Mach Mining*, 809 F.3d at 1264(quoting *Brody Mining, LLC*, 37 FMSHRC at 1703). 

 

**V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND**

**CONCLUSIONSOF LAW**

**A.        Violationof 30 C.F.R. §****75.1722(a)****– Failure to Guard Belt DriveRoller**

** **

TheSecretary alleges that CONSOL violated section 75.1722(a) which requires that “exposedmoving machine parts which may be contacted by persons, and which may causeinjury to persons shall be guarded.” (Tr. 27:8–10); 30 C.F.R. § 75.1722(a).[4] CONSOL appearsto contend no violation occurred but offered no supporting arguments at the hearingother than the missing guarding posed no hazard. (Resp’t Post-hr’g Br. at 4; Tr.19:1–2.) 

 

BothMSHA Inspector Detrick and CONSOL’s Shaffer agree the 5B tailgate belt line wasactively running. (Tr. 24:11–13, 94:1–4.) They, as well as CONSOL’s Hockenberry, alsoagree that at the time of the citation, the 6-foot guarding was missing fromthe area directly in front of the moving, exposed 5B belt drive roller. (Tr. 33:21–24,119:13–20, 123:13–16; Ex. R–1.) The drive roller spans somefour feet in diameter and is the width of the belt, which is 52 inches or overfour feet wide. (Tr. 81:9–13, 100:10–15.) The walkway in front of the driveroller, used to access the tight side, sits no more than three to three-and-a-halffeet from the 5B belt drive roller. (Tr. 33:17–20, 67:8–17, 103:8–10; Exs. R–1 at 002, R–4 at 015.)Given this exposure, miners may come in contact with the drive roller andsuffer injury. (Tr. 42:7–16.) Based on the record, I determine that CONSOLfailed to guard the 5B belt drive roller while the belt line was operating, andthe sizeable gap from the missing guarding exposed moving machine parts that,due to their proximity to the walkway, may be contacted by persons. Therefore,I conclude that the Secretary has met his burden of proving CONSOL violated section 75.1722(a).

 

**B.        Significantand Substantial Determination**

** **

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

 

To establish thefirst element of the *Mathies* test, the Secretary must prove anunderlying violation of a mandatory safety standard. I have determined thatCONSOL violated section 75.1722(a), because it failed to guard the 5B tailgatebelt drive roller. *See* discussion *supra* Part V.A. Thus, theSecretary has satisfied the first element of the *Mathies* test. 

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

**Whichthe Standard Is Directed**

** **

For the second *Mathies*element, the Secretary must establish that “there exists a reasonablelikelihood of the occurrence of the hazard against which the mandatory safetystandard is directed.” *Newtown*, 38 FMSHRC at 2038. Here, the hazard isthe possibility of miners contacting the moving 5B tailgate belt drive roller,the issue against which the standard is directed. (Tr. 42:17–43:5);*see*Electric Equipmentand Safeguards for Mechanical Equipment, 37 Fed. Reg. 11,777, 11,779 (June 14,1972) (proposing section 75.1722 “in order to prevent to the greatest extentpossible, accidents in the use of mechanical equipment”) (implemented Feb. 23,1973, at 38 Fed. Reg. 4,976, codified at 30 C.F.R. § 75.1722).

 

CONSOL argues no miner would be near the exposedmoving parts because no grease fittings nor maintenance were in this area andthe 5B tailgate belt line had no dedicated belt attendant. (Tr. 75:13–15, 102:4–9,22–25, 103:5–6, 104:18–105:5; Resp’t Post-hr’g Br. at 8–9.) While InspectorDetrick observed no miners in the immediate vicinity at the time of his inspection,S&S determinations are made in the context of normal, continuous miningoperations. *See, e.g.*, *Knox Creek Coal Corp*., 36 FMSHRC 1128,1132 (May 2014) (indicating that the Judge erred when he took a “‘snapshot’approach” to the S&S analysis). Contrary to CONSOL’s assertion, minerswould be in the area throughout the workday as examiners inspect the area beforethe day, afternoon, and midnight shifts. (Tr. 38:16–17.) While CONSOL argues a mineexaminer normally stays on the walkway side to do a preshift examination, I creditas reasonable Detrick’s testimony that a “mine examiner might have to go over[to the tight side] in order to do his exam if he suspects there’s somethingwrong on th[e] tight side of the belt.” (Tr. 36:12–17, 55:19–22, 62:15–16, 64:18–20,103:5–6.) I also find Detrick’s statement credible that “miners may shovelspillage from the belt,” as this area is near the transfer point to the“mother” belt. (Tr. 24:1–7; Ex. R–5.) Detrick also stated that miners may beassigned to rock dust or perform other work in the area. (Tr. 36:12–17, 55:15–19,101:19–102:9, 22–25.) Although CONSOL’s Shaffer noted that the 5B tailgate beltdid not have a dedicated belt attendant like two other belts had, Shaffer acknowledgedthat CONSOL had other beltmen called “rovers” who would go to wherever theywere assigned work for the day. (Tr. 104:18–105:5.) Looking at CONSOL’s ownwork log shows miners were assigned work along the 5B belt line during theafternoon shift of November 16, 2020. (Ex. R–3 at 009, 010.) Indeed, the very existenceof the walkway to the tight side in front of the 5B belt roller shows minerswould need to access this area (Tr. 57:6–20, 101:19–102:9), and one can also reasonablyinfer that removal of the guarding in front of the belt drive roller indicatessome work had already been performed here. Thus, I find under normal miningoperations that miners would have assigned work in this area. 

 

With regard to theoccurrence of the hazard, miners traversing this area in front of the 5B beltroller would be on a walkway that spans only two and a half to three feet inwidth. (Tr. 30:6–7.) Miners going into this area would also encounter the exposedbottom of the conveyor belt, which is only some five and a half feet above the woodenwalkway. (Tr. 33:7–9.) Thus, a miner of average height wearing boots and ahardhat—not to mention a six-foot-tall miner like Inspector Detrick—must benddown to go under the belt. (Tr. 68:3–4, 76:25–77:1.) Not only does theroute require a miner to bend down, but Detrick observed this area around the wooden walkway to be wet,muddy, and could “get slippery” as was apparent from CONSOL’s photographs ofthe dark mine bottom instead of the usual white rock dusk. (Tr. 41:22–24,64:23–25, 65:4–5; Exs. GX–1-3, GX–3-2.) 

 

To get to thetight side, a miner would traverse under a moving belt in this bent over or stoopedposition. The missing guarding in front of the 5B belt drive roller created anunguarded space measuring approximately six feet high by four and a half feetwide. (Tr. 95:19–96:10, 100:13–14, 119:7–14, 123:10–19; *see* Exs. GX–3,R–4.) As Inspector Detrick determined, a miner could fall through the unguardedspace next to the wooden walkway and come in contact with the drive roller,which could occur in two ways: Either the miner could slip and fall directly fromthe walkway into the moving and exposed drive roller, or the miner’s hardhatcould come in contact with the bottom of the unguarded conveyer belt[5] overhead andbe thrust toward the 5B tailgate drive roller. (Tr. 41:13–42:3.)

 

In the firstinstance, a miner could slip on the wooden walkway in front of the belt driveroller, given that the area around this wooden walkway was wet and muddy andthus slippery. (Tr. 41:22–24, 64:23–65:5, 69:16–70:6; Exs. GX–1-3, GX–3-2.) Inthe second instance, a miner attempting to traverse under the conveyer belt wouldnot be aware how close he was to contacting the bottom of the belt, especially whenwalking in a stooped position. CONSOL argues this is all speculative as a minerwould not necessarily fall in the direction of the belt drive roller, nor woulda miner fall upwards. Yet, if a miner slips in a bent over position, the mineris reasonably likely to jerk upwards or straighten up to try to regain hisbalance. In such an instance, he would be unable to see how close he is to the bottomof the conveyer belt and could reasonably contact the unguarded moving belt[6] and be thrustin the direction of the drive roller. The “miner’s hardhat would be knocked offhis head or he would be pulled into the belt.” (Tr. 33:6–10, 19–20, 41:18–25;Exs. GX–1-4, GX–2-1.) Moreover, a miner would be exposed to the hazardouscondition first when traversing towards the tight side and again wheninevitably the miner must retrace his steps to return to the walkway side. Indeed,doing so in a bent down position over a wet, muddy, and narrow wooden walkway increasesthe likelihood of the miner slipping and falling towards the exposed driveroller. Either slipping and falling into the opening, or having the miner’shardhat come in contact with the bottom conveyer belt overhead thereby knockingthe miner towards the exposed drive roller, could catch the limbs or clothingof a miner and pull the miner into the moving machinery. (Tr. 42:20–25.) 

 

Giventhe testimony, the photographic evidence of the cited area, and the record as awhole, I determine it is reasonably likely that aminer could slip and/or come in contact with the unguarded conveyer belt, therebyfalling towards and contacting the exposed 5B belt drive roller.*Mathies*, 6 FMSHRC at 5 (noting “aninspector’s judgment is an important element” in an S&S determination)(citing *Nat’l Gypsum*, 3 FMSHRC at 825–26); *see also Buck Creek Coal*,52 F.3d at 135 (stating that Judge did not abuse discretion in creditingopinion of experienced inspector).

 

I determine theviolation wasreasonably likely to cause the occurrence of the discrete safety hazard againstwhich the standard is directed, and,therefore, the Secretary has satisfied the second element of *Mathies*.

 

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

 

Regarding thethird *Mathies* element, the Secretary must demonstrate a reasonablelikelihood that the occurrence of the hazard would result in an injury. Asdiscussed in the section above, if a miner slipped and fell because of the wet woodenwalkway or tripped on the walkway, then the miner could reasonably fall into thissix- by four-and-a-half-foot unguarded area and contact the moving machineparts. The miner’s entire body would not need to contact the drive roller tocause injury. The approximately four-foot-diameter drive roller that spans the 52-inchwidth of the 5B belt spins swiftly, so contact with it is reasonably likely tocause injury to limbs.(Tr. 42:20–43:5, 41:19–42:3,20–25, 81:11–13); *see* discussion *supra* Part V.B.2.

 

 Consequently, Idetermine that the hazard of contacting the unguarded belt roller wasreasonably likely to cause injury, thus satisfying the third element of the *Mathies*test. 

 

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

 

Lastly, under the fourth*Mathies* element, the Secretary must prove a reasonable likelihood theresulting injury would be of a reasonably serious nature. An injury of a “reasonablyserious nature” does not require a specific type of injury, and a mere sprainor similar injury may be “reasonably serious.” *S&S Dredging Co.*, 35FMSHRC 1979, 1981–82 (July 2013) (holding the Judge erred in requiring theSecretary to demonstrate an injury would result in hospitalization, surgery, ora long period of recuperation to satisfy the fourth *Mathies* element). Yetthe drive roller is large enough, at around three and a half to four feet indiameter, and fast enough to crush limbs and otherwise cause a serious injuryaccording to Inspector Detrick, who previously worked as a Beltman. (Tr. 42:7–16,81:11–12.) CONSOL’s witnesses did not dispute Inspector Detrick’s testimony thatsuch injuries could include damage to limbs. (Tr. 42:1–4, 20–25.) I determinethat the injuries expected to result from contacting the drive roller arereasonably likely to be of a reasonably serious nature, thus satisfying thefourth *Mathies*element. For the same reasons, I affirm the Inspector’s gravitydetermination as reasonably likely to result in lost workdays or restrictedduty.

 

Accordingly,the Secretary has satisfied all four elements of the *Mathies* test. Iconclude that Citation No. 9203483 was appropriately designated as S&S.

 

**C.        Negligence**

 

Inspector Detrick assignedlow negligence to Citation No. 9203483. (Ex. GX–1.) In support, the Secretaryasserts that the preshift examiner should have anticipated the 5B tailgate beltwould resume operation and thus needed to have the guarding reinstalled. (Tr. 79:9–17.)CONSOL argues for no negligence because the 5B tailgate belt line lay idle whenthe preshift examiner on the midnight shift examined the area. (Resp’t Post-hr’gBr. at 13–14; Tr. 120:15–16.)

 

Therecord indicates that CONSOL trained the 5B tailgate conveyer belt during the midnightshift, whereby the belt would be allowed to run. (Tr. 97:18–21; Exs. GX–1-3, R–3at 013.)The parties agree that adding new splices and training the 5B belt would occurin the tailpiece area near the face where active mining takes place—this is theopposite end of the belt line from the 5B head roller where the guarding wasmissing. (Tr. 107:17–108:8, 111:13–112:3, 112:24–113:7.) Though CONSOL could removeguarding in the tailpiece area to train the 5B belt under the maintenanceexception, 30 C.F.R. §75.1725(c), the guarding in front of the 5B beltdrive roller on the opposite end of the belt line would not be removed to trainthe belt. (Tr. 74:18–25.) Thus, while miners may need to remove a differentpiece of guarding in a different area of the mine to train the 5B belt, minerswould not do this in the area around the 5B drive roller. Therefore, I am unpersuadedthat this evidence lowers the negligence. 

** **

No evidencesuggests that CONSOL was aware of the missing guarding while the belt operated andwillfully ignored the violation. Still, CONSOL should have known of theviolative condition since one of its employees or contractors removed theguarding. (Tr.53:6–54:25; Ex. GX–1-3.) Moreover, Inspector Detrick observed that a reasonablepreshift examiner on the midnight shift would expect the belt line to run againsoon after the completion of repairs to the torn conveyer belt, and thereforeshould have noticed and reinstalled the missing guarding. (Ex. GX–1-3; Tr. 79:9–17.);*see* 30 C.F.R. § 75.360(b)(11)(v) (guarding moving machine parts). 

 

I determine thatCONSOL should have known of the violative condition, but there were mitigating circumstances. Therefore, I concludelow negligence is appropriate.

 

**D.        Penalty**

#  

# The Secretary hasproposed a penalty of $298.00. The Commission is notbound by the Secretary’s proposal and reviews penalty assessments *de novo*.*Mach Mining, LLC v. Sec’y of Labor*, 809 F.3d 1259, 1263–64 (D.C. Cir.2016). Under section 110(i) of the Mine Act, I must consider six criteria inassessing a civil penalty: (1) the operator’s history of previous violations;(2) the appropriateness of the penalty relative to the size of the operator’sbusiness; (3) the operator’s negligence; (4) the penalty’s effect on theoperator’s ability to continue in business; (5) the violation’s gravity; and(6) the demonstrated good faith of the operator in attempting to achieve rapidcompliance after notification of a violation. 30 U.S.C. § 820(i).

#  

CONSOL is a largeoperator with a low to moderate violation history. In the fifteen monthspreceding the issuance of this citation, MSHA issued to CONSOL’s Harvey Mine threeviolations of section 75.1722(a) that became final orders of the Commission. (Exs.GX–1-1, GX–9-1, GX–9-6.) I determined CONSOL’s negligence to be low. *See*discussion *supra* Part V.C. CONSOL has not alleged that the proposedpenalties would adversely affect its ability to continue in business. I also determinedthe gravity of the violation to be S&S, the number of persons affected tobe one, the likelihood of injury as reasonably likely, and the expected severityas lost workdays or restricted duty. *See* discussion *supra* Part V.B.Finally, CONSOL demonstrated good faith by quickly installing the missing guardto comply with the cited standard. (Tr. 75:16–22.) In considering the criteriaset forth in section 110(i) of the Mine Act and all the relevant facts, Ihereby assess a penalty of $298.00. 

** **

**VI. ORDER**

 

In light of theforegoing, it is hereby **ORDERED**that Citation No. 9203483is **AFFIRMED**.

            RespondentCONSOLPennsylvania Coal Company, LLC is hereby **ORDERED**to **PAY** a penalty of $298.00within 40 days of this decision.[7]

 

 

 

/s/Alan G. Paez

Alan G. Paez

AdministrativeLaw Judge

 

 

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

 

Matthew R. Epstein, Esq., Office of the Regional Solicitor, U.S.Department of Labor, 

1835Market Street, Mailstop SOL/22, Philadelphia, PA 19103-2968 (epstein.matthew.r@dol.gov)

 

PatrickW. Dennison, Esq., Fisher & Phillips LLP, 6 PPG Place, Suite 830,Pittsburgh, PA 15222-5425 

(pdennison@fisherphillips.com)

 

/gw

----

[1] In this decision,the hearing transcript, the Secretary’s exhibits, and Respondent’s exhibits areabbreviated as “Tr.,” “Ex. GX–#,” and “Ex. R–#,”respectively.

 

[2]Upon receiving the Secretary’s motion for a partialsettlement, I issued a Decision Approving Partial Settlement on September 16,2021, resolving three of the six citations contained in consolidated DocketNos. PENN 2021-0047 and PENN 2021-0058. Thereafter, at the hearing the partiesentered a settlement on the record for two section 104(a) citations, one ofwhich disposed of the sole remaining citation in Docket No. PENN 2021-0058. I issued my Decision Approving Second Partial Settlementfor the two citations on November 24, 2021, resulting in the full dispositionof Docket No. PENN 2021-0058.

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

[4] Section75.1722(a) provides: “Gears; sprockets; chains; drive, head, tail, and takeuppulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similarexposed moving machine parts which may be contacted by persons, and which maycause injury to persons shall be guarded.” 30 C.F.R. § 75.1722(a).

 

[5]The citationonly considers the violation of the missing guarding around the 5B belt driveroller. (Ex. GX–1-1.) Therefore, I do not consider the possibility of directinjury from contact with the overhead belt in my S&S analysis. Nevertheless,*Mathies* requires an analysis of the circumstances as the inspector foundthem at the time of the violation. *Peabody*, 42 FMSHRC at 382.

 

[6] CONSOL wiselyrequires its miners to lock-out and tag-out the belt, or turn off the machineand render it inoperable, before proceeding under the belt. (Tr. 99:22–25.) Whilea prudent miner should lock-out and tag-out the belt line before walking underthe belt, “[t]he Court cannot assume that miners would exercise caution.” *CONSOLPa. Coal Co.*, 43 FMSHRC 145, 148 (Apr. 2021). Inspector Detrick notes“there [are] accidents that happen every day because people weren’t prudent intheir personal safety,” as well as “numerous fatalities” in the mining industry,that lead him to believe that miners would traverse under a belt without turningoff, locking out, and tagging out the belt. (Tr. 62:21–23, 63:4–10); *see**Sec’yof Labor v. Ohio Valley Coal Co.*, 359 F.3d 531 (D.C. Cir. 2004) (notingminer’s failure to turn off machine when assessing for maintenance led tosevering of his arm and subsequent fatality). Here, however, CONSOL’s lock-outand tag-out policy is a redundant safety measure and is therefore irrelevant tothe S&S analysis. *Sec’y of Labor v. Consolidation Coal Co.*, 895 F.3d113, 116, 118 (D.C. Cir. 2018) (holding safety measures, including companypolicy not to access area of unsupported roof, are irrelevant to S&Sanalysis).

 

[7]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.