**FEDERA****LMINESAFETYANDHEALTHREVIEWCOMMISSION**

OFFICEOFADMINISTRATIVELAWJUDGES

1331PENNSYLVANIAAVENUE,NW,SUITE520N

WASHINGTON,DC20004-1710

TELEPHONE:202-434-9900/FAX:202-434-9954

 

March 27, 2020

 

SECRETARYOFLABOR                                   :                 CIVILPENALTY PROCEEDINGS

MINE SAFETY ANDHEALTH                       :     

ADMINISTRATION(MSHA),                         :                 Docket No. PENN 2018-0243

Petitioner                                      :                 A.C.No. 36-07230-467980

                                                      :

v.                                                   :                 DocketNo. PENN 2018-0255

                                                                  :                 A.C.No. 36-07230-470217

CONSOLPENNSYLVANIA COAL CO., LLC,  :                 

Respondent                                   :                 BaileyMine

**DECISION**

 

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

 

James McHugh,Esq., Hardy Pence PLLC, Charleston, West Virginia, for Respondent.

 

Before:                        JudgeBulluck

 

Thesecases are before me upon Petitions for 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”),pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977(“Mine Act”), 30 U.S.C. § 815(d). The Secretary seeks a total penalty of $11,067.00for ten violations of his mandatory safety standards.[1]

 

Ahearing was held in Pittsburgh, Pennsylvania. The following issues are beforeme: (1) whether the violations were attributable to the level of gravityalleged; (2) whether the violations were attributable to the degree ofnegligence alleged; and (3) the appropriate penalty. The parties’ Post-hearingBriefs and Consol’s Reply Brief are of record. 

 

Forthe reasons set forth below, I **AFFIRM**two citations, as issued, and threecitations, as modified; and assess penalties against Respondent.

 

 

 

**I.    JointStipulations**

 

            Theparties have stipulated as follows:

 

1.    Respondentis an operator, as defined in section 3(d) of the Mine Act, at the mine wherethe citations were issued.

 

2.    BaileyMine is a mine, as defined in section 3(h) of the Mine Act.

 

3.    Theoperations of Respondent at Bailey 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 MineAct sections 105 and 113.

 

5.    BaileyMine is owned by Respondent.

 

6.    Paymentof the proposed penalties will not affect Respondent’s ability to remain inbusiness.

 

7.    Theindividual whose name appears in Block 22 of each citation in contest wasacting in an official capacity and as an authorized representative of theSecretary of Labor when the citations were issued.

 

8.    Thecitations were properly issued and served by a duly authorized representativeof the Secretary upon an agent of Respondent at the date, time, and placestated in each citation, as required by the Act.

 

9.    ExhibitA to each of the above-captioned dockets contains authentic copies of thecitations at issue.

 

10. Respondentstipulates to the authenticity and admissibility of the R–17 certified minehistory forms (P–9).

 

Tr.14-16.

 

**II. Factual Background**

 

Consolowns and operates the Bailey Mine, an underground coal mine in Wind Ridge,Greene County, Pennsylvania. On May 17, 2018, Walter Young, an MSHA inspectorand ventilation specialist, conducted an E02 methane spot inspection of themine, accompanied by his supervisor Jeremy Williams, Consol respirable dustcoordinator John Opfar, and Consol safety inspector Cody Rogers. Tr. 270-72. Youngcited Consol for two worn high pressure shield hoses on the 6-J longwallworking section; and wet accumulations of combustible materials at the 6-J workingsection conveyor belt storage unit. Exs. P–5, P–6. 

 

OnJune 28, 2018, Inspectors Young and Williams returned to the mine for anothermethane spot inspection, accompanied by Consol safety inspectors James Jonesand Matt Cunningham. Tr. 58-60. Young observed several conditions for which hecited Consol: an inadequately ventilated charging battery in the No. 3 crosscut,between the No. 3 belt and No. 2 track entries; an energized ISE box on the pumpcar in the No. 2 track entry with the outby door ajar and disconnected externalcontrol levers; and an unsupported area of mine roof between the last longwallshield and the 5-L tailgate travelway. Exs. P–2, P–3, P–4.

 

**III.Findings of Fact and Conclusions of Law**

 

**1.       ****CitationNo. 9077362**

** **

**A.   ****Fact of Violation**

** **

InspectorYoung issued 104(a) Citation No. 9077362 on May 17, 2018, alleging an “S&S”violation of section 75.1725(a) that was “reasonably likely” to causean injury that could reasonably be expected to result in “lost workdays orrestricted duty,” and was caused by Consol’s “moderate” negligence.[2] The“Condition or Practice” is described as follows:

 

The MineOperator failed to maintain the high pressure shield to shield hoses on the 6-JLongwall Working Section (039-0 MMU), inby the number 10.5 crosscut in safeoperating condition at the following locations:

 

1.     Between thenumbers 62 and 63 shields. The outer jacket of the hose was worn off for anarea measuring 2 inches long by 3 inches wide exposing the inner wire braidingto damage. The inner braiding was rusted and deteriorating from oxidation andrubbing on the pontoons of the shields when they were advanced.

 

2.     Between thenumbers 64 and 65 shields. The outer jacket of the hose was worn off for anarea measuring 24 inches long by 3 inches wide exposing the inner wire braidingto damage. Broken strands were present. The inner braiding was rusted anddeteriorating from oxidation and rubbing on the pontoons of the shields whenthey were advanced. The Operator immediately removed the shields from serviceuntil the condition could be corrected. Both outer protective hose sleeves weredamaged at the cited locations.

 

Standard75.1725(a) was cited 16 times in two years at mine 3607230 (16 to the operator,0 to a contractor).

 

Ex.P–5. The citation was terminated on May 17, when both damaged high pressurehoses were replaced. Ex. P–5. Consol has conceded the violation, but contests theS&S designation and the degree of negligence ascribed to the violation. Resp’tBr. at 18.

 

**B.   ****Gravity**

** **

In *Mathies Coal Co.*, the Commissionset forth four criteria that the Secretary must establish in order to provethat a violation is S&S under *National Gypsum*: 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. 6 FMSHRC 1, 3-4 (Jan. 1984); *seealso Buck Creek Coal, Inc. v. FMSHRC*, 52 F.3d 133, 135 (7th Cir.1995); *Austin Power, Inc. v. Sec’y of Labor*, 861 F.2d 99, 103-04(5th Cir. 1988) (approving *Mathies* criteria), *aff’g* 9FMSHRC 2015, 2021 (Dec. 1987). Resolution of whether a violation is S&Smust be based “on the particular facts surrounding that violation.” *Texasgulf,Inc.*, 10 FMSHRC 498, 501 (Apr. 1988); *Youghiogheny & Ohio CoalCo.*, 9 FMSHRC 2007, 2011-12 (Dec. 1987). 

 

The Commission has explained that thesecond *Mathies* criterion requires the judge to define thehazard to which the violation contributes, and then determine “whether, basedupon the particular facts surrounding the violation, there exists a reasonablelikelihood of the occurrence of the hazard against which the mandatory safetystandard is directed.” *Newtown Energy, Inc.*, 38 FMSHRC 2033, 2038 (Aug.2016); *see ICG Illinois*,*LLC*, 38 FMSHRC 2473, 2475-76 (Oct.2016). When evaluating the third *Mathies* criterion, the judgeis to assume that the hazard identified in step two has been realized, and thenconsider whether the hazard would be reasonably likely to result in injury inthe context of “continued normal mining operations.”  *Newtown Energy*, 38 FMSHRC at 2045(citing *Knox Creek Coal Corp.*, 811 F.3d 148, 161-62 (4th Cir. 2016); *PeabodyMidwest Mining*,*LLC*, 762 F.3d 611, 616 (7th Cir. 2014); *BuckCreek*, 52 F.3d at 135)); *U.S. Steel Mining Co.*, 6 FMSHRC 1573,1574 (July 1984). The Secretary need not prove a reasonable likelihood that theviolation, itself, will cause injury. *Musser Eng’g, Inc.*, 32 FMSHRC1257, 1280-81 (Oct. 2010). 

 

TheSecretary maintains that the violation was S&S because the damaged hoses createda risk of highly pressurized fluid leaks and, because the hoses were facing thepan line, they “could break loose entirely and whip through the air” in an areawhere miners travel. Sec’y Br. at 6-7. Additionally, the Secretary argues thatthe pressure tests on the damaged hoses offered by Consol should be discountedbecause they do not account for continued degradation and repeatedpressurization during the normal course of mining. Sec’y Br. at 5-7. Consolmakes the counter argument that despite the damage, the pressure testing performedat Fairmont Supply Company (“Fairmont”) demonstrated that the hoses could withstandpressure far exceeding that to which they were subjected during normal mining. Resp’tBr. at 18-21. Consol also contends that if one or both hoses were to fail, itwould be highly unlikely for a miner to be in close proximity to either becauseof Consol’s automated system for moving the longwall shields. Resp’t Br. at19-20.

 

InspectorYoung testified that he identified damaged high pressure hoses between thenumbers 62 and 63, and 64 and 65 shields, with braiding visible through theouter jackets and oxidation on the exposed steel braiding. Tr. 273, 289, 299-300,334. Young explained that the hoses use hydraulic fluid to pressurize theshield system, and that the cited hoses carry 2,500 psi of static pressure and approximately5,000 psi of operating pressure when the shields are advancing. Tr. 274-75,293, 304. He noted that there was slack in the hoses, which caused rubbing onthe longwall pontoons. Tr. 292-93, 307. He testified that high pressure leaksat 4,000 psi can pierce human flesh and that if a “hose blows off” and swings,it could kill miners traveling or working along the pan line. Tr. 299. Youngexplained that the longwall shields are moved manually when there are bad roof conditions,and that miners can override the computer program ensuring that they are twoshields away from an advancing shield. Tr. 310-14, 321-323. Additionally, Youngacknowledged that, under some circumstances, oxidation can occur quickly, that itusually turns steel a dark color, and that the outer jacket of the cited hosesis black.     Tr. 309, 334, 340. Finally, he stated that the only way todetermine the extent of damage to a hose is to send it out for testing, and thatMSHA did not test the cited hoses. Tr. 308, 334. 

 

Consolrespirable dust coordinator John Opfar explained that the longwall operation issupported by over 200 shields, each equipped with three hoses. Tr. 545-46, 591.He testified that, typically, the longwall shields are advanced automatically, andthat they only begin to advance once the shearer has passed and isapproximately 10 shields further along the working face. Tr. 588-90. Additionally,he explained that when conditions require that shields be moved manually,miners can only advance a shield using a computer program that operates twoshields away from the advancing shield; this keeps miners approximately 11 feetfrom the advancing shield and the highly pressurized hoses. Tr. 588-90. Opfaracknowledged that when the longwall shields advance, the hoses can pull and rub,and he identified the location of the deterioration as facing the shields. Tr. 587.

 

Consolconference officer Robert Gross testified that the cited hoses carried approximately5,000 psi when pressurized to advance the longwall shields. Tr. 625, 642, 654,666. He stated that Consol had the hoses proof and burst pressure tested at Fairmont’sfacility.[3]   Tr. 633, 644-45. He also stated that both hoses passed the proof pressure test,that neither hose burst, and that the burst test established that one couldwithstand 19,000 psi without leakage, while the other began to leak at 17,000psi. Tr. 645-47, 652-55. Finally, Gross explained that, despite the damage tothe outer jackets, both hoses had internal layers of intact braiding.      Tr.649-50.

 

ToddClyde, the distribution center manager at Fairmont, testified that the companyassembled and sold the cited hoses to Consol. Tr. 672-73, 685. He also statedthat Consol had the hoses tested at Fairmont, and that the testing methods atits facility are accepted by hose manufacturers. Tr. 672, 682. 

 

Thefact of violation has been conceded. Regarding the second *Mathies* criterion,continued operation of the damaged hoses contributed to their failure, i.e., highlypressurized fluid leakage and uncontrollable detachment from the shields.

 

TheSecretary seeks to discredit Consol’s pressure testing, contending that it doesnot take into account wear and tear from continued friction and pressurechanges occurring during the normal course of mining. Sec’y Br. at 6-7. TheCommission has explained that, in evaluating the contribution of a violation tothe cause and effect of a hazard, “it is assumed that normal mining operationswill continue.” *Mach Mining, LLC*, 40 FMSHRC 1, 4 (Jan. 2018) (citing*U.S. Steel*, 6 FMSHRC at 1574-75); *see also **U.S**. **SteelMining Co.*, 7 FMSHRC 1125, 1130 (Aug. 1985). Accordingly, continued stresson the hoses and highly pressurized fluid leakage must be considered whenevaluating the risk of hose failure, alongside evidence of their condition atthe time that they were cited by Young. While the record establishes that manylayers of braiding remained intact and that the hoses could withstand pressurefar greater than that utilized to move the shields, continued operationssubjected them to rubbing the pontoons as the longwall advanced. While the testresults indicated the unlikelihood of the hoses failing at the time that Young observedthe damage, given the extent of exposed braiding and oxidation, along with wearand tear in the context of continued mining, I find it reasonably likely thatthese hoses would fail. Accordingly, the second step of *Mathies* is met. 

 

Regardingthe third step of *Mathies*, Consol argues that miners would not have beenexposed to the hazard arising from the damaged hoses. The record indicates thatshield hoses are only pressurized to 5,000 psi when the longwall advances and, undernormal circumstances, automated longwall advances do not require miners to belocated in the immediate area. However, under adverse roof conditions, whenConsol elects to advance the longwall manually, it utilizes a computer programthat precludes advancement unless miners are 11 feet away from the pressurized hosesthat are advancing the shield. Other than the Secretary’s bare contention thatminers can override the manual system, the Secretary does not rebut or reckon withthis evidence in any meaningful way. Moreover, the Secretary has not identifiedany scenario in which a miner would be exposed to the hazard created by thefailed highly pressurized hoses. Accordingly, the Secretary has failed to establisha reasonable likelihood of injury and, therefore, this violation was not S&S.[4]

** **

**C.   ****Negligence**

** **

TheSecretary contends that Consol was moderately negligent in committing theviolation. Sec’y Br. at 7. Consol argues that its negligence should be lowbecause there were hundreds of hoses used to operate the longwall, and thecondition was difficult to identify. Resp’t Br. at 21. The evidence establishesthat the damage was on the non-visible back side of the hoses facing the shields,and that the oxidation on the inner steel braiding and the hoses’ outer jacketswere similar in color; therefore, their cited condition was not readilyobservable from the travelway. Additionally, only two out of approximately 600hoses were cited. Finally, the Secretary did not establish how long thecondition had existed. I find these factors mitigating and, accordingly, that Consol’snegligence was low in violating this standard.

** **

**2.       ****CitationNo. 9077364**

 

**A.   ****Fact ofViolation**

** **

InspectorYoung issued 104(a) Citation No. 9077364 on May 17, 2018, alleging an “S&S”violation of section 75.400 that was “reasonably likely” to cause an injurythat could reasonably be expected to result in “lost workdays or restrictedduty,” and was caused by Consol’s “moderate” negligence.[5] The“Condition or Practice” is described as follows:

 

Damp to wetaccumulations of combustible materials consisting of loose coal, coal fines andcoal dust, black in color, were permitted to accumulate under the rear of the 6-JWorking Section Conveyor Belt Storage Unit and 0.5 crosscut. Theseaccumulations measured 13 feet long by 6 feet wide by 2 to mostly 12 inches indepth. These accumulations were in contact with the return side of the bottomconveyor belt and the stationary roller (outby roller). These accumulationswere packed and worn smooth from the conveyor belt being operated overtop ofthem. The accumulations were built up to the point were [sic] the conveyor beltwas almost rubbing the tight side of the take-ups [sic] frame. 

 

The Operatorremoved the Conveyor Belt from service immediately after the issuance of thiscitation until the condition could be corrected.

 

Standard 75.400was cited 109 times in two years at mine 3607230 (109 to the operator, 0 to acontactor). 

 

Ex.P–6. The citation was terminated on May 17, after the operator removed theaccumulations from the area. Ex. P–6. Consol has conceded the violation, butcontests the S&S designation and the degree of negligence ascribed to theviolation. Resp’t Br. at 22.

** **

**B.   ****Gravity**

** **

TheSecretary argues that the citation was S&S, and that the hazard is a “minefire from the combination of heat from the belt and combustible coal.” Sec’yBr. at 8. Consol maintains that an ignition was unlikely to occur because ofthe wet conditions in the area, the mixed nature of the accumulations, and thepresence of water sprays, an overhead fire suppression system, a CO monitor, a fireresistant belt, and a nearby attendant. Resp’t Br. at 22-23. 

 

### Inspector Young testified that heobserved accumulations underneath the 6-J working section conveyor belt storageunit that extended 6 feet in width, 2 to 12 inches in depth, and 12 feet inlength. Tr. 347. He stated that the accumulations were in contact with the beltand rollers in several places, noting that multiple rollers were under pressure,that accumulations were underneath the take-up structure, and that the belt hadpolished the accumulations. Tr. 347, 353, 374. He also noted that none of the rollerswere damaged, and that the belt was not in contact with the take-up structure. Tr.347, 353, 373-74. Young testified that he observed chunks of coal within the wetmixture of dirt, rocks, and other debris, and that the accumulations were notrock dusted. Tr. 347, 350, 364-65, 385. In his opinion, the quantity indicatedthat the accumulations had existed for two to three shifts, and that it wouldhave taken time for the belt to have polished them. Tr. 347, 351-52. He notedthat the outside guarding was clean, which he believed to be another indicationthat a spill had not occurred recently. Tr. 393-94. In Young’s opinion, continuedmining operations could dry out the accumulations and cause a fire, and theaccumulations had almost built up enough to cause the belt to rub against theframe of the take-up structure. Tr. 350-51, 374-75. Finally, Young explainedthat the mine was subject to a five-day spot inspection cycle for methane, and thathe did not cite Consol for elevated levels of methane that day. Tr. 58-59, 258.

 

Consolrespirable dust coordinator John Opfar testified that the belt was in contactwith the accumulations, that the belt was functioning at least intermittentlyat the time that the accumulations were cited, and that there was coal in theaccumulations. Tr. 561-62, 564-65. He explained that spillage can occur whenthe belt is turned off and on. Tr. 564. He noted that the accumulations werewet and contained a mixture of materials. Tr. 561. He also testified about thefire prevention equipment employed by the mine, which includes an overhead firesuppression system, a CO monitor, fire resistant belts, and sprinklers. Tr. 553-54,561-67. Opfar also noted that an attendant was stationed near the accumulations,and that he could have addressed any smoldering or fire. Tr. 561-62, 565-567.  

 

Thefact of violation has been conceded. Regarding the second *Mathies* criterion,the discrete safety hazard against which section 75.400 is directed is fireor explosion contributed to by accumulations of combustible materials. 

 

Incases involving combustible accumulations, the Commission has clarified that whenconsidering the second and third steps of the *Mathies*analysis, “thelikelihood of an injury resulting depends on the existence of a ‘confluence offactors’ that could trigger the ignition or explosion.” *Mach Mining*, 40FMSHRC at 3-4 (citing *McCoy Elkhorn Coal Corp.*, 36 FMSHRC 1987, 1992 (Aug.2014)). “Factors include any potential ignition sources, the presence orpotential for presence of methane, float coal dust accumulations, loose coal orother ignitable substance, and the types of equipment operating in the area.” *Id.*at 4; *seealso Utah Power & Light Co., Mining Div.*, 12 FMSHRC 965, 971 (May1990); *Texasgulf*, 10 FMSHRC at 501-03. Belt rollers contactingaccumulations can be potential ignition sources even if the belt is not rubbingagainst any structure and there are no broken rollers. *See**id.*at4-6; *see also Knox Creek Coal Corp.*, 36 FMSHRC 1128, 1139-42 (May 2014).Additionally, equipment operating in coal accumulations constitutes an ignitionsource for S&S purposes, even absent any defects in the equipment. *See BuckCreek*,* *52 F.3d at 135. Finally, it is well established that afire in an underground coal mine poses a significant risk of injury to miners. *Id.*at 135-36; *Black Diamond Coal Mining Co.*, 7 FMSHRC 1117, 1120 (Aug.1985). 

 

Consolargues that the wetness of the accumulations made it unlikely for a fire to occur.Resp’t Br. at 22-23. However, the Commission has long explained that “wet coal accumulationspose a significant danger in underground coal mines” because they can dry out throughfrictional contact with the belt or rollers, and propagate a fire or explosion.*Mach Mining*, 40 FMSHRC at 4-6 (citing *Consolidation Coal Co.*, 35FMSHRC 2326, 2329-30 (Aug. 2013); *Black Diamond*, 7 FMSHRC at 1120-21).

 

### Consol next contends that thepresence of an overhead fire suppression system, a CO monitor, sprinklers, andfire resistant belts reduce the likelihood of the hazard causing an injury. Resp’tBr. at 22-23. However, it is well settled that these safety measures are notvalid considerations in determining whether a violation is S&S. *BuckCreek*, 52 F.3d at 135-36 (the court rejected the operator's contention thatother fire prevention safety measures mitigated the S&S nature of anaccumulation); *see also Sec’y of Labor v. ConsolidationCoal Co.*, 895 F.3d 113, 118 (D.C. Cir. 2018); *Knox Creek*, 811 F.3dat 162; *Cumberland Coal Res., LP*, 717 F.3d 1020, 1028-29 (D.C.Cir. 2013), *aff’g* 33 FMSHRC 2357 (Oct. 2011);*Brody Mining, LLC*, 37FMSHRC 1687, 1691 (Aug. 2015). Furthermore, asthe Commission has recognized, adopting the position that redundant safetymeasures provide a defense to an S&S finding “would lead to the anomalousresult that every protection would have to be nonfunctional before a[n] S&Sfinding could be made.” *Cumberland Coal Res., LP*, 33 FMSHRC 2357, 2369(Oct. 2011).

###  

### Consol also maintains that a firewas unlikely because the accumulations were a mixture of combustible andnoncombustible materials. Resp’t Br. at 22. On this point, I credit Young’stestimony, based on his experience and observation of the coal in theaccumulations, that there was sufficient coal to provide a fuel source.

###  

Finally,Consol advances the argument that the nearby attendant could prevent an ignitionfrom occurring or clean up any accumulations. Resp’t Reply Br. at 5. However, theCommission requires that an S&S determination be made at the time that acitation is issued, “without any assumptions as to abatement,” and in thecontext of “continued normal mining operations.” *Paramont Coal Co.*, 37FMSHRC 981, 985 (May 2015); *U.S. Steel*, 6 FMSHRC at 1574. In thepresent case, the evidence establishes that the accumulations had accrued overa few shifts because of the quantity, that they had been polished by the belt, andthat there was no spillage on the guarding; in that timespan, no one, includingthe attendant, had addressed them. It follows, therefore, that the attendanthad no effect on the likelihood of a fire or explosion occurring. 

 

Thecases cited by Consol in support of a non-S&S designation are premised uponfacts that are distinguishable from the facts at hand. *See*Resp’t Br. at22-23. In *Brody Mining, LLC*, the judge found a non-S&S violationwhere the accumulations were loose and not compacted, they were wet with waterrather than hydraulic oil, there was no evidence of heat coming from the belt, andredundant safety measures made ignition unlikely. 33 FMSHRC 1329, 1382, 1384-85(May 2011) (ALJ). Here, the accumulations were packed and polished by the beltto the point that they had become smooth, indicating that there had beensignificant contact and friction with the belt. In *Mach Mining, LLC*, thejudge found that the accumulations could have accrued in a relatively shorttime, that approximately half of the material was noncombustible rock, and thatthe roller contacting the accumulations was no longer in use. 33 FMSHRC 763,773 (Mar. 2011) (ALJ).[6]In this case, by contrast, the cited accumulations were present significantlylonger than a shift, the mixture was black and contained chunks of coal, andthe accumulations were in contact with functioning rollers. 

 

Theevidence establishes that there were numerous points of contact between theaccumulations and the belt, and there were multiple rollers under pressure, allof which created points of friction.[7]Moreover, there were chunks of coal in the accumulations, and the belt hadpolished them. Furthermore, despite no evidence of excessive methane levels on thesection at the time that Young cited the accumulations, the fact that Bailey issubject to a five-day spot inspection cycle for methane heightened the potentialfor an ignition in the context of continued normal mining.[8] Finally, atleast one miner, the attendant, would have been in close proximity to a fire. Basedon these facts, I find that the coal accumulations contributed to thereasonable likelihood of a fire, a hazard that would be reasonably likely toresult in an injury. Accordingly, the second and third *Mathies* criteria havebeen satisfied.

 

Asthe Seventh Circuit expressed in *Buck Creek**, a finding that*“a fire burning in anunderground coal mine would present a serious risk of smoke and gas inhalation”is a common sense conclusion. 52 F.3d at 135-36; *see also Black Diamond*,7 FMSHRC at 1120 (recognizing that “ignitions and explosions are major causesof death and injury to miners”). Based on the facts in this case and therelevant precedent, I find a reasonable likelihood that any injury arising from a mine firewould be of a reasonably serious nature, satisfying the fourth *Mathies*criterion.Accordingly, I find that this violation was S&S.

** **

**C.   ****Negligence**

** **

TheSecretary asserts that Consol was moderately negligent in committing theviolation because the accumulations were not caused by spillage, and had beenbuilding up for two to three shifts. Sec’y Br. at 8. Consol argues that itsnegligence should be low because the accumulations were hard to identify, theycould have accrued between examinations, and they could have been caused by thebelt being turned off and on. Resp’t Br. at 23. The evidence establishes thatthe accumulations had existed for at least two shifts and had not been caused bya sudden event, and that no action had been taken to remove them. Based onthese facts, I find that Consol was moderately negligent in violating thestandard.

** **

**3.       ****CitationNo. 9077374**

** **

**A.   ****Fact ofViolation**

** **

InspectorYoung issued 104(a) Citation No. 9077374 on June 28, 2018, alleging an “S&S”violation of section 75.340(a)(1)(i) that was “reasonably likely” to causean injury that could reasonably be expected to result in “lost workdays orrestricted duty,” and was caused by Consol’s “moderate” negligence.[9] The“Condition or Practice” is described as follows:

 

The batteryscoop charging station located in the 5-L Longwall Working Section (008-0 MMU)between the numbers 1 and 2 entries at the number 3 crosscut was ventilatedwith intake air that was not coursed into a return air course or to the surfaceand was being used to ventilate working places. When smoked with a chemicalsmoke tube the air being used to ventilate the scoop batteries was beingcoursed inby to the 5-L Longwall Working Section’s last open crosscut (4crosscut). This smoke tube reading was taken at the track entry side of thebattery being charged, 18 feet inby the ribline of the track entry (number 2entry). 

 

Standard75.340(a)(1)(i) was cited 11 times in two years at mine 3607230 (11 to theoperator, 0 to a contractor).

 

Ex.P–2. The citation was terminated on June 28, when the ventilation was correctedby hanging a piece of line brattice across the opening to the crosscut andenlarging the hole in the stopping. Ex. P–2. Consol has conceded the violation,but contests the S&S designation, the number of persons affected, and thedegree of negligence ascribed to the violation. Resp’t Br. at 7, 23.

**B.   ****Gravity**

** **

TheSecretary contends that this violation was S&S because the improperventilation would expose miners to toxic fumes and smoke from the batterycharging station, and urges the assumption of an emergency, i.e., a battery fire,in the *Mathies*analysis. Sec’y Br. at 9-10 (citing *Cumberland Coal*,717 F.3d at 1028-29). Alternatively, the Secretary asserts that, even if a firewere not assumed, the conditions in the mine on the day in question wouldrender the ventilation dangerous to miners. Sec’y Br. at 10. 

 

Consolmaintains that it would be inappropriate to assume an emergency in the *Mathies*analysis**because section 75.340(a)(1)(i) is not an emergency standard. Resp’tReply Br. at 5-6 (citing *Cumberland Coal*, 717 F.3d at 1028-29; *ICGIllinois*, 38 FMSHRC at 2473). Moreover, Consol contends that determining whethera fire was likely to occur is an essential part of the S&S analysis andthat, given the good condition of the cited battery, a fire was unlikely.   Resp’tBr. at 7-9. Additionally, Consol explains that, even if a fire were to occur, miners’exposure would be limited because intake air coming from the primary escapeway woulddilute any smoke or contamination coming from the No. 2 track entry before itreached the working face. Resp’t Br. at 8, 23-24.

 

InspectorYoung testified that he encountered a noticeable increase in temperature near theNo. 3 crosscut, and found that the heat was coming from a battery charging in thecrosscut and the connected charger. Tr. 60-61, 70-71. He testified that thebattery was located near the stopping in the crosscut, that there was no ventilationcurtain at the charging station, and that there was a disconnected charger alsositting in the crosscut. Tr. 60-61, 64, 82-83, 90, 94, 130. The battery in theNo. 3 crosscut was connected to a charger mounted on the train in the No. 2track entry, and Young explained that MSHA does not cite chargers that are mountedon trains. Tr. 65, 70, 91-92. He opined that charging batteries are dangerous becauseif they catch fire, they can create toxic smoke and carbon monoxide. Tr. 64,141. Young stated that he released multiple smoke tubes 13, 15, and 18 feet fromthe ribline of the track entry to determine whether the area was properlyventilated. Tr. 63-64, 68, 125, 127. He explained that when he took a smoketest at the 18 foot mark at the front edge of the battery, some smoke went throughthe stopping in the crosscut to the return belt entry and some went toward theribline, continuing up the track entry toward the face. Tr. 116, 122, 124-25, 127,130. When he released smoke at the 15 foot mark, he observed the smoke swirling;at the 13 foot mark, he observed the smoke traveling toward the face. Tr. 127. Youngthen explained that, in the event of contamination coming from the battery, onceintake air from the No. 1 primary escapeway met the contaminated air in the No.2 track entry, some of the combined air would be siphoned off at the last open crosscutinto the return belt entry, but there would be no way to quantify the amount ofcontamination ventilating the face. Tr. 76, 80-81, 116. He noted that inassessing the gravity of the violation, he took into account other ventilation inthe mine and the potential for dilution of any contaminated air, and he acknowledgedthat Consol employs a fire suppression system, CO monitors, and a fireresistant curtain over the battery. Tr. 117-18, 131, 154. 

 

Consolsafety inspector Justin Jones testified that he observed Young perform the smoketest over the battery, and that the smoke remained stagnant; however, he also statedthat the smoke split and some traveled toward the face when Young performedsmoke tests closer to the ribline. Tr. 417-19, 430. He explained that any airtraveling toward the face would get diluted by intake air coming from theprimary escapeway, that some of the contaminated air would get siphoned off,and that there was no damage to the charger or the battery at the time ofinspection. Tr. 418, 422-23, 425. Finally, he noted that miners are equippedwith self-contained self-rescue devices (“SCSR”), and that Consol utilizes firesuppression systems, CO monitors, and a fire resistant curtain over the battery.Tr. 418-19.

 

Thefact of violation has been conceded. Regarding the second *Mathies* criterion,the discrete safety hazard that section 75.340(a)(1)(i) is intended to preventis “delivery of smoke or other products of combustion to the working place bythe intake air current.” 57 Fed. Reg. 20868-01, 20888 (May 15, 1992). 

 

Addressingthe Secretary’s position as to the second *Mathies* criterion, theCommission and the D.C. Circuit have applied *Cumberland Coal* to standardsthat only become relevant in emergency situations, such as lifelines, escapeways,and refuge chambers. *See e.g., Cumberland Coal*, 717 F.3d at 1026-28; *ICGIllinois*, 38 FMSHRC at 2476; *Small Mine Dev*., 37 FMSHRC 1892,1900-01 (Sept. 2015); *Black Beauty Coal Co.*, 36 FMSHRC 1121, 1123 (May2014); *Spartan Mining Co.*, 35 FMSHRC 3505, 3508-09 (Dec. 2013). Thestandard at issue, section 75.340(a)(1)(i), is not within the ambit of thesituations that would render it an emergency standard. Therefore, at thisjuncture, the particular facts attendant this violation are analyzed todetermine the reasonable likelihood of smoke and other products of combustionreaching the working face, irrespective of any emergency. 

 

Insupport of its contention that the charging battery posed no risk of firebecause it was not found to be defective, Consol cites several cases for theproposition that the S&S designation is primarily premised upon thelikelihood of a battery fire occurring. Resp’t Br. at 8 (citing *Rebco Coal,Inc.*, 36 FMSHRC 181, 186 (Jan. 2014) (ALJ); *Roxcoal, Inc.*, 33 FMSHRC2303, 2313 (Sept. 2011) (ALJ); *Zeigler Coal Co.*, 14 FMSHRC 203, 219(Jan. 1992) (ALJ); *Mathies Coal Co.*, 4 FMSHRC 2222, 2234-35 (Dec. 1982) (ALJ)).These cases, involving similar violations but different facts, are of limitedvalue. In *Roxcoal*, in finding that a battery fire was unlikely and thatthe violation was non-S&S, the judge noted that any contaminated air in thetravelway would be coursed quickly to the return. 33 FMSHRC at 2313. There isno such indication in the present case. In *Zeigler Coal*and *RebcoCoal*, the inspectors did not designate the violations S&S, and thejudges did not make findings on S&S. *See*14 FMSHRC at 219; 36 FMSHRCat 186. In *Mathies Coal*, the cited battery charging equipment was not inuse, whereas here, the battery was being charged. *See*4 FMSHRC at2234-35. 

 

Additionally,MSHA has explained that section 75.340 requirements are designed “to protectminers if a fire originates at underground transformer stations, *batterycharging stations*, substations, rectifiers and water pumps.” 57 Fed. Reg.at 20888 (emphasis added).****MSHAhas also explained that the requirements are “necessary to safely operate [battery]chargers, regardless of the location” because charging batteries liberatehydrogen, and “[t]here is a demonstrated history of fires caused by batterychargers.” 61 Fed. Reg. 9764-01, 9786 (Mar. 11, 1996).[10]

~~ ~~

Inthe present case, the evidence establishes that the air at the charging batteryin the No. 3 crosscut split, some ventilating through the stopping into thereturn belt entry, and some migrating inby the track entry and mixing withintake air from the primary escapeway before coursing the working face. Accordingly,the second *Mathies* requirement has been satisfied.

 

Regardingthe third *Mathies* criterion, Consol’s contention, that its overhead firesuppression system, CO monitors, fire resistant curtain, and SCSRs for itsminers would reduce the likelihood of injury, is clearly contrary to long heldprecedent. The Commission and Federal Courts of Appeals have explained thatredundant safety measures are not valid considerations in determining whetheran injury is reasonably likely to occur. *See e.g., *Knox Creek**,811 F.3d at 162; *Cumberland Coal*, 717 F.3d at 1029; *BrodyMining*, 37 FMSHRC at 1691.

### ~~ ~~

### While the evidence establishes thatcontaminated air originating in the No. 3 crosscut and traveling inby the trackentry was diluted by intake air from the primary escapeway, and that some ofthe combined air was siphoned off at the last open crosscut and ventilated intothe return belt entry, an unknown quantity of residual contaminants reached theworking face and, in the event of a fire at the charging battery, smoke and otherproducts of combustion would be reasonably likely to reach the entire crew,resulting in serious respiratory and other injuries. Accordingly, I find that thethird and fourth *Mathies*criteria have been satisfied, and that this violationwas S&S. 

 

**C.   ****Negligence**

** **

TheSecretary contends that Consol was moderately negligent in violating thestandard because the heat emanating from the battery and charger was obvious. Sec’yBr. at 10. Consol argues that its negligence was low because there were nodefects found on the battery or the charger, and the Secretary did notestablish how long the condition had existed. Resp’t Br. at 11. The evidenceestablishes that the charging battery and charger were generating noticeableheat. Additionally, the hole in the stopping was insufficient for adequateventilation of the charging battery into the return belt entry, and there wasno other ventilation control at that location. Based on these facts, I findthat the Consol was moderately negligent in violating the standard.

** **

**4.       ****CitationNo. 9077375**

** **

**A.   ****Fact ofViolation**

** **

InspectorYoung issued 104(a) Citation No. 9077375 on June 28, 2018, alleging an“S&S” violation of section 75.512 that was “reasonably likely” to cause aninjury that could reasonably be expected to be “fatal,” and was caused byConsol’s “moderate” negligence.[11]The “Condition or Practice” is described as follows:

 

The energized480 A.C. Volt control panel containing the VFD#1 and VBD#2 breakers on the ISEPump Car located in the number 2 entry, just outby 3 crosscut, in the 5-LLongwall Working Section (008-0 MMU) was not frequently examined, tested, andproperly maintained by a qualified person to assure safe operating condition.When inspected the outby door was not closed and after further investigationneither of the breaker control levers on the outside of this panel were not[sic] operational. The metal extensions that fit between the actual machinebreaker and the exterior breaker control reset handles were not connected. Dueto this condition, a person would have to reset these breakers manually byinserting the bare metal square stock and using a tool to turn/reset thebreakers, exposing them to contacting the energized components inside thecontrol box. 

 

Ex.P–3. The citation was terminated on June 28, after the breaker control leverswere properly reinstalled and the control panel door was closed securely. Ex.P–3. Consol has conceded the violation, but contests the S&S designationand the reasonably expected injury, and the degree of negligence ascribed tothe violation. Resp’t Br. at 12, 24.

 

**B.   ****Gravity**

** **

TheSecretary maintains that the violation was S&S because the open door on theISE pump circuit breaker (“ISE box”) exposed miners to 480 volts of electricityas they passed through the area. Sec’y Br. at 10. Furthermore, the Secretary contendsthat miners and electricians could have been electrocuted if they had attemptedtroubleshooting at the ISE box. Sec’y Br. at 10-12. 

 

Consolargues that the alleged hazard was not reasonably likely to occur becauseminers did not travel on the tight side of the track entry where the ISE boxwas accessed. Resp’t Br. at 12. Additionally, Consol contends that unqualified minerswould be unlikely to operate the breakers because such behavior is contrary to theirtraining, mechanics and electricians are   on-site to perform electrical tasks,the conditions requiring resetting the breakers were not present at the time inquestion and, were de-energizing the panel necessary, qualified miners could doso at the load center rather than the control panel. Resp’t Br. at 14-15. Finally, Consol maintainsthat the reasonably expected injury should be reduced from “fatal” to “lostworkdays or restricted duty” because only electricians wearing protectivegloves would be expected to encounter the hazard while troubleshooting, thepower could be turned off prior to troubleshooting, and the Secretary “failedto produce any evidence demonstrating the relationship between volts and amps[,]and the number of amps required to make 480 volts lethal.” Resp’t Br. at24-25. 

 

InspectorYoung testified that he observed the outby door open approximately three incheson the ISE box, and that the breaker control levers were disconnected; he found oneof the control lever connector rods lying on the bottom of the box, six inchesfrom the energized components, and the other lying a couple of feet away fromthe ISE box in another car. Tr. 166-67, 174, 190-91, 194. He opined that vibrations fromthe pump could have opened the door, but that at least one of the disconnectedcontrol rods had been removed intentionally. Tr. 204-05. He explained that contactwith the live components would cause fatal injuries because the ISE box is energizedby 480 volts of electricity from the load center, which is used, in part, topower the ISE pump, thatthe pump was most likely plugged into a 600 or 800 amp breaker inside the box,and thatcontacting even 480 volts at half an amp would be fatal. Tr. 168-69,185-86, 201-02. Youngasserted that the ISE box was in a “high traffic area,” that miners traveled onboth sides of the equipment, and that they could accidentally contact the live controlpanel by tripping. Tr. 167-68, 188, 192. According to him, despite minertraining and availability of qualified mechanics and electricians, unqualified miners could haveattempted troubleshooting at the box which, without the control rods, wouldexpose them to the energized components.    Tr. 167-68, 173-74, 183, 194-95,197-203. Healso acknowledged that only electricians, wearing protective gloves, arepermitted to troubleshoot at the ISE box when energized, that the power to the boxcould have been shut down at the load center, and that there wereno conditions on the day in question that required resetting the breakers. Tr. 167-69, 175,194-96.

 

Consolsafety inspector Justin Jones testified that one of the control panel doors wasopen only a few inches, and that miners do not travel on the tight side of the trackentry where the ISE box was located because the hydraulic lines running alongthat side make travel “inconvenient.” Tr. 469, 473-74, 483-84. However, he testifiedthat even if a miner were to fall where the box was located, it would likely closethe door to the box. Tr. 483. Jones explained that in the event that thebreakers required resetting, a mechanic or electrician with protective gear couldaccess the ISE box control panel or turn off the power to the box at the loadcenter for the longwall train, and that miners are trained not to troubleshoot electricalequipment. Tr. 474, 477, 490-92.

 

Thefact of violation has been conceded. Regarding the second *Mathies* criterion,the discrete safety hazard against which section 75.512 is directed is seriouselectric shock or electrocution. 

 

Thecases relied upon by the Secretary to establish that the violation was S&S aredistinguishable. In *Big Ridge*, the judge affirmed an S&S findingwhere a 480-volt power cable was damaged in three places, and there wassubstantial evidence that miners were active in the area. *See*Sec’y Br.at 12 (citing *Big Ridge, Inc.*, 36 FMSHRC 999, 1021-24 (Apr. 2014) (ALJ)).In the instant matter, by contrast, the door on the ISE box was open threeinches at best, and the box was located in an infrequently traveled area, significantlyreducing the likelihood of accidental contact with the energized components. In*McElroy Coal*, the judge affirmed an S&S finding where a power centercould have electrocuted miners not in direct contact with the live components, becausethe electricity could “track” to objects, such as steel-toed boots, in closeproximity to the exposed power source, and there was evidence that clothing,lunch pails, and other items were stored on top of the power center. *See*Sec’yBr. at 12 (citing *McElroy Coal Corp.*, 30 FMSHRC 45, 57-58 (Jan. 2008)(ALJ)). Here, the evidence indicates that the danger was confined to theenergized components inside the ISE box. 

 

Consolcites to *Zapata Coal*, in which the judge found a non-S&S violation where covers on threeelectrified 480-volt breaker boxes were open two to three inches and notproperly secured, because exposure to the hazard was minimal and injury wasunlikely. *See*Resp’tBr. at 12 (citing *Zapata Coal**Corp.*, 6 FMSHRC 2639, 2646-47 (Nov.1984) (ALJ)). This case presents similar facts. It is uncontested that one ofthe doors accessing the energized control panel inside the ISE box was open afew inches, that the box was located on the tight side of the track, and that travelon that side was inconvenient. The Secretary has failed to establish that unqualifiedminers wouldbe traveling the tight side with any frequency, or that they would reset thebreakers in the box. Moreover, the Secretary has not rebutted evidence that qualifiedmechanics and electricians troubleshoot electrical equipment, or that qualifiedminers could shut down power to the ISE box at the load center. Consequently, Ifind that accidental contact with the energized components was unlikely. Therefore,the Secretary has failed to establish the second *Mathies*criterion, and thisviolation was not S&S.

 

Regardingthe injury that would reasonably be expected, Consol contends that by failingto demonstrate the relationship between voltage and amperage, the Secretary hasnot established that 480 volts of electricity would be lethal. Consol does notchallenge that the ISE box was energized with 480 volts from the load center,or that the power for the ISE pump ran through the box. Furthermore, Consoldoes not rebut that, in all likelihood, the pump was connected to a 600 or 800amp breaker, or that contacting 480 volts at even half an amp would be fatal. Consequently,the only evidence on this point stands. Therefore, in the unlikelyevent that an unqualified miner were to contact the energized components, thereasonably expected injury would be fatal.

** **

**C.   ****Negligence**

** **

TheSecretary argues that Consol was moderately negligent in committing theviolation because weekly examinations were required, the condition was obvious,and the state of the control rods indicated improper handling of the equipment.Sec’y Br. at 12. Consol contends that low negligence is appropriate because thelatches on the door could have come loose inadvertently, the box was located ina non-obvious location, there was no evidence that the door was open at thetime of the last examination and it was not reported, and Consol was not cited foran inadequate examination. Resp’t Br. at 15. Balancing the evidence that the doorwas only ajar rather than wide open, and that the condition was not readily observableand of unknown duration, against the evidence of equipment mishandlingindicated by one of the disconnected breaker control levers being found inanother car, I find that Consol was moderately negligent in violating thestandard. 

 

 

**5.       ****CitationNo. 9077376**

** **

**A.   ****Fact ofViolation**

** **

InspectorYoung issued 104(a) Citation No. 9077376 on June 28, 2018, alleging an“S&S” violation of section 75.202(a) that was “reasonably likely” to causean injury that could reasonably be expected to result in “lost workdays orrestricted duty,” and was caused by Consol’s “moderate” negligence.[12] The“Condition or Practice” is described as follows:

 

The mine roof inareas where persons work or travel was not adequately supported or otherwisecontrolled to protect persons from hazards related to falls of the mine roof,between the last tailgate shield (#273 at spad number 11+11) and the 5-LTailgate Travel way on the 5-L Longwall Working Section. The unsupported areameasured 5.5 feet wide by 18.5 feet long and would not allow face personnel tosafely access the tailgate travelway in the event of an emergency. 

 

Standard75.202(a) was cited 13 times in two years at mine 3607230 (13 to the operator,0 to a contractor).

 

Ex.P–4. The citation was terminated on June 28, after the mine roof was supportedwith posts, making the tailgate safely accessible. Ex. P–4. Consol has concededthe violation, but contests the S&S designation and the degree ofnegligence ascribed to the violation. Resp’t Br. at 15-17.

** **

**B.   ****Gravity**

** **

TheSecretary, arguing that the violation was “almost *per se*” reasonablylikely to cause an injury, contends that the violation was S&S because“there were signs of pressure in the roof and actual material falling off theroof.” Sec’y Br. at 12-13. He contends that the foreman would be exposed to thehazard because he is required to pass through the cited area to take airreadings every four hours. Sec’y Br. at 12-13. The Secretary also asserts that someminers might travel to the face through the tailgate, and that an emergencymight force the entire crew to evacuate through the tailgate. Sec’y Br. at 12-13.On the other hand, Consol argues that it would be unlikely for a miner to be inthe cited area at the precise time of a rock fall and that, outside ofemergency situations, only a foreman would travel in the area. Resp’t Br. at 16-17.

 

InspectorYoung testified that the area of unsupported roof was roughly 5.5 feet wide and18.5 feet long between the end of the longwall and the tailgate, and that thecondition likely arose from the longwall getting “off sights.” Tr. 212-13, 234.He stated that he observed unconsolidated pieces hanging and large chunks ofmaterial falling from the roof in that area.  Tr. 210. Young opined that minerscould travel through the cited area to reach the working face, or could berequired to escape through the tailgate in an emergency. Tr. 215-16, 257. Heexplained that because the mine has two escapeways located on the headgateside, the mine is required to maintain a passable travelway to the tailgate andthat, under normal conditions, the section foreman would cross from thelongwall into the tailgate to take air readings. Tr. 235, 259-61. He alsotestified that it takes two hours for the longwall to complete a round trip, andhe was of the opinion that whether the longwall advancing would terminate thecondition is speculative; he admitted, however, that the cited condition can ariseunexpectedly, and come and go as longwalls advance. Tr. 246, 249, 253-54, 256. 

 

Consolsafety inspector Justin Jones testified that the foreman would take an airreading in the area between the end of the longwall and the tailgate every fourhours. Tr. 406, 514-15. He explained that the advancing longwall would haveresolved the roof condition within the hour because, when the longwall shearer completedits next pass, it would have “knocked out” the cited area and the shields wouldhave advanced. Tr. 515. He testified that under normal circumstances, minerswould not travel to and from the longwall face through the tailgate, but acknowledgedthat in the case of an emergency, escape through the tailgate might benecessary. Tr. 514, 520. He noted that there had not been an emergencyrequiring usage of the tailgate as an escapeway during his six years working atthe mine. Tr. 520. In his opinion, the roof appeared “in fine condition to passunder.” Tr. 530. Additionally, he noted that miners had been setting posts inthe tailgate earlier in the shift. Tr. 510-11; Ex. R–20.

 

Thefact of violation has been conceded. Considering the second step of *Mathies*,the roof was unsupported and fairly large chunks were already falling when theinspector came upon the area. The discrete safety hazard contemplated by thisstandard is roof falls in areas where persons work or travel. Accordingly, thesecond *Mathies* step is met. 

 

Consolidentifies cases in which judges made non-S&S findings based upon considerationsof the likelihood of hazards occurring, i.e., roof falls, in conjunction with theunlikelihood of miners being at those precise locations when the hazardsoccurred, in concluding that injuries were unlikely. Resp’t Br. at 16; Resp’t ReplyBr. at 9 (citing *Peabody Midwest Mining LLC*, 35 FMSHRC 2419 (Aug. 2013)(ALJ); *Freedom Energy, Mining Co.*, 32 FMSHRC 1809, 1829 (Dec. 2010)(ALJ); *Ohio Cty. Coal Co.*, 31 FMSHRC 1486, 1489 (Dec. 2009) (ALJ)). However,the Commission has indicated that when considering the likelihood of injury underthe third *Mathies* criterion, the hazard is assumed to have occurred. *NewtownEnergy*, 38 FMSHRC at 2038.

 

TheSecretary does not refute Consol’s contention that the hazard would have beenresolved within the hour. The evidence establishes that it would have taken roughlyan hour for the longwall shearer to compete the second half of its roundtrip atthe time in question, and that the cited condition can arise unexpectedly andis not unusual; it can come and go. Accordingly, I find that the longwall’sadvance would have cut away and corrected the unsupported roof by 12:30 thatafternoon.

 

            TheSecretary’s assertion that miners could travel through the tailgate to reachthe working face is contradicted by evidence that miners would only travelthrough the tailgate if there were an emergency that rendered the primaryescapeways unusable. Moreover, the Secretary has failed to establish any emergencyconditions present during the longwall cycle that was underway. Additionally, whileminers setting timbers in the tailgate earlier in the shift were nearby, theSecretary has not shown that they worked in the unsupported area between theend of the longwall and the tailgate, or that they traveled through it whilethe condition existed. Ex.  R–20; Tr. 510-11. The evidence establishes that theassistant foreman took a methane reading in the tailgate at 9:20 in the morning.See Ex. R–5 at 4; Ex. P–4. It follows thatthe next reading would have occurred sometime around 1:20 that afternoon, wellafter the hazard would have been cut away and the longwall advanced. Despite theevidence of falling rock from the unsupported roof at the time of inspection, Ifind that the Secretary has failed to establish that anyone would have beenexposed to the hazard between the longwall and the tailgate during its duration.Consequently, Ifind that the hazard was unlikely to result in an injury. Therefore, theSecretary has failed to establish the third *Mathies* criterion, and thisviolation was not S&S. 

 

**C.   ****Negligence**

** **

TheSecretary contends that Consol was moderately negligent in violating thestandard because miners were working in the area and failed to address the condition.Sec’y Br. at 13. Consol contends that its negligence was low because thiscondition can arise in the ordinary course of longwall mining, and the conditionwas not reported. Resp’t Br. at 17. There is no evidence that miners wereworking or traveling directly under the unsupported roof, or that Consol wasaware of the hazard before the inspector identified it. Moreover, the evidenceestablishes that unstable roof conditions can arise unexpectedly as thelongwall operates. I find that these factors mitigate the negligence and,therefore, that Consol’s negligence was low in violating this standard.

 

**IV.Penalties**

** **

Whilethe Secretary has proposed a total civil penalty of $11,067.00, the judge mustindependently determine the appropriate assessment by proper consideration ofthe six penalty criteria set forth in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i). *See Sellersburg Co.*, 5 FMSHRC 287, 291-92 (Mar. 1983), *aff’d*736 F.2d 1147 (7th Cir. 1984). 

 

Applyingthe penalty criteria, and based on a review of MSHA’s online records, I findthat Consol is a large operator. The record also indicates that Consoldemonstrated good faith in achieving rapid compliance after notice of theviolations, and consideration of its history of violations, from the AssessedViolation History Reports, follows for each citation. Consol has stipulatedthat imposition of the proposed penalties will not adversely affect its abilityto remain in business. Jt. Stip. 6. 

 

Theremaining criteria involve consideration of the gravity of the violations and Consol’snegligence in committing them. These factors have already been discussed fully.Therefore, considering my findings as to the six penalty criteria, thepenalties are set forth below.

** **

**1.    ****Citation No.9077362**

** **

Ithas been established that this violation was unlikely to cause an injury and non-S&S,and that Consol’s negligence was low. In the fifteen-month period precedingissuance of this citation for damaged shield hoses, 10 violations of section 75.1725(a) became finalorders of the Commission. Ex. P­–9 at 1-2. Given that section 75.1725(a) is ageneral equipment maintenance standard, and that the record is lacking as tothe specific nature of those violations, I find Consol’s violation history neithera mitigating nor aggravating factor in assessing the appropriate penalty. TheSecretary has proposed a penalty of $749.00. Applying the civil penaltycriteria, I find that a penalty of $200.00 is appropriate.

 

**2.    ****Citation No.9077364**

** **

Ithas been established that this S&S violation was reasonably likely to causean injury that could reasonably be expected to result in lost workdays orrestricted duty, and that Consol was moderately negligent. In the fifteen-monthperiod preceding issuance of this citation for combustible accumulations, 67violations of section 75.400 became final orders of the Commission. Ex. P­–9 at8-10. Given the volume of coal produced at Bailey, I find Consol’s violation historysignificant, but not an aggravating factor in assessing the appropriatepenalty. Applying the civil penalty criteria, I find that a penalty of $1,211.00,as proposed by the Secretary, is appropriate.

** **

**3.    ****Citation No.9077374**

** **

Ithas been established that this S&S violation was reasonably likely to causean injury that could reasonably be expected to result in lost workdays orrestricted duty, that six persons would be exposed to the hazard, and thatConsol was moderately negligent. In the fifteen-month period preceding issuanceof this citation for inadequate ventilation of a charging battery, 10violations of section 75.340(a)(1)(i) became finalorders of the Commission. Ex. P­–9 at 11-12. Given that section 75.340(a)(1)(i)is a general standard relating to ventilation of underground electricalinstillations, and the record is lacking as to the specific nature of thoseviolations, I find Consol’s violation history neither a mitigating nor aggravatingfactor in assessing the appropriate penalty. Applying the civil penaltycriteria, I find that a penalty of $1,539.00, as proposed by the Secretary, isappropriate.

** **

**4.    ****Citation No.9077375**

** **

Ithas been established that this violation was unlikely to cause a fatality andnon-S&S, and that Consol was moderately negligent. In the fifteen-monthperiod preceding issuance of this citation for inadequate ISE box maintenance,33 violations of section 75.512 became finalorders of the Commission. Ex. P­–9 at 5-6. Given that section 75.512 is ageneral standard relating to maintenance of electrical equipment, and that therecord is lacking as to the specific nature of those violations, I find Consol’sviolation history neither a mitigating nor aggravating factor in assessing theappropriate penalty. The Secretary has proposed a penalty of $3,161.00. Applyingthe civil penalty criteria, I find that a penalty of $1,000.00 is appropriate.

** **

**5.    ****Citation No.9077376**

** **

Ithas been established that this violation was unlikely to cause an injury andnon-S&S, and that Consol’s negligence was low. In the fifteen-month period precedingissuance of this citation for inadequate roof support, 9 violations of section 75.202 became finalorders of the Commission, and I find Consol’s violation history neither a mitigatingnor aggravating factor in assessing the appropriate penalty. Ex. P­–9 at 3-4. TheSecretary has proposed a penalty of $749.00. Applying the civil penaltycriteria, I find that a penalty of $200.00 is appropriate.

** **

**IV.Approval of Settlement**

** **

TheSecretary has filed Motions to Approve Partial Settlement respecting five ofthe ten citations involved in these dockets. A reduction in penalty from$3,658.00 to $2,005.00 is proposed. The citations, initial assessments, andproposed settlement amounts are as follows:

** **

| Docket No.     | Citation No.     | Initial Assessment | Proposed Settlement |
|----------------|------------------|--------------------|---------------------|
|           |             |               |                |
| PENN 2018-0243 | 9076103          | $336.00            | $184.00             |
|           | 9079127          | $1,118.00          | $559.00             |
|           | 9076446          | $502.00            | $326.00             |
|           | 9074941          | $953.00            | $524.00             |
|           | **TOTAL:**       | **$2,909.00**      | **$1,593.00**       |
|           |             |               |                |
| PENN 2018-0255 | 9077570          | $749.00            | $412.00             |
|           | **TOTAL:**       | **$749.00**        | **$412.00**         |
|           | ** **       | ** **         | ** **          |
| ** **     | **GRAND TOTAL:** | **$3,658.00**      | **$2,005.00**       |

** **

Ihave considered the representations and documentation submitted in thesematters under section 110(k) of the Act, and I conclude that the profferedsettlement is appropriate under section 110(i) of the Act, and is in the publicinterest. Specifically, regarding Citation No. 9076103, the Secretary has foundthe gravity to be less than originally assessed based upon Respondent’scontentions that no copper wire was exposed, and that the area was notregularly traveled. Regarding Citation No. 9079127, the Secretary has found thegravity and negligence to be less than originally assessed based uponRespondent’s contentions that three jacks would continue to stabilize the bucketif the pin failed, and that the condition could have arisen at any time. RegardingCitation No. 9076446, the Secretary has found the gravity to be less than originallyassessed based upon Respondent’s contentions that there were no problems withthe ventilation or permissibility, and that the area was adequately rock dusted.Regarding Citation No. 9074941, the Secretary has found the gravity to be lessthan originally assessed based upon Respondent’s contention that the hose hadbeen pressure tested and could withstand five times the operating pressure. RegardingCitation No. 9077570, the parties believe that the violation was issued underthe incorrect standard, and the Secretary has found the gravity to be less thanoriginally assessed based upon Respondent’s contentions that the shuttle carwas not in operation at the time of inspection, that it was not energized, and thata pre-operational exam had not been performed. 

 

**ORDER**

** **

**WHEREFORE**,it is **ORDERED** that Citation Nos. 9077364 and 9077374 are **AFFIRMED**,as issued; and that Citation Nos. 9077362, 9077375 and 9077376 are **AFFIRMED**,as modified.

 

**WHEREFORE**, the Secretary’sMotions to Approve Partial Settlement are **GRANTED**, and it is further **ORDERED**that the Secretary **MODIFY**Citation Nos. 9076103 and 9074941 toreduce the level of gravity to “unlikely” and remove the “significant andsubstantial” designation; Citation No. 9079127 to reduce the level of gravityto “unlikely” and remove the “significant and substantial” designation, andreduce the degree of negligence to “low;” Citation No. 9076446 to reduce the levelof gravity to “2 persons affected;” and Citation No. 9077570 to allege a violationof 30 C.F.R. § 75.517, and reduce the level of gravity to “unlikely” and removethe “significant and substantial” designation. 

 

**WHEREFORE**,it is further **ORDERED** that Consol Pennsylvania Coal Company, LLC, **PAY**a civil penalty of $6,155.00 within 30 days of the date of this Decision.[13]**ACCORDINGLY**,these cases are **DISMISSED**. 

 

 

 

 

/s/Jacqueline R. Bulluck

JacquelineR. Bulluck

                                                            AdministrativeLaw Judge

 

 

 

Distribution:

 

MatthewEpstein, Esq., U.S. Department of Labor, Office of the Solicitor, The CurtisCenter

170S. Independence Mall West, Ste. 630E, Philadelphia, Pennsylvania   19106 epstein.matthew.r@dol.gov

 

JamesMcHugh, Esq., Hardy Pence, PLLC, 500 Lee Street, Suite 701, Charleston, WestVirginia   25301 

jmchugh@hardypence.com

 

KennethJ. Polka, Conference & Litigation Representative, U.S. Department of Labor,MSHA, 631 Excel Drive, Suite 100, Mt. Pleasant, Pennsylvania   15666  

polka.kenneth@dol.gov

 

CraigAaron, CONSOL Energy Inc., 1000 CONSOL Energy Drive, Suite 100, Canonsburg, Pennsylvania  15317

craigaaron@consolenergy.com

 

 

 

 

----

[1] The parties reacheda settlement on five of the ten contested citations. The total civil penaltyproposed for the remaining five citations adjudicated in this proceeding is$7,409.00. 

[2] 30 C.F.R. §75.1725(a) provides that “[m]obile 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.”

[3] Gross and Fairmontemployee Todd Clyde explained that the proof pressure testing procedure doublesthe maximum pressure determined by the manufacturer for 30 seconds to ensurethat hoses are in safe operating condition; burst pressure testing pressurizes hosesto four times the pressure that they would undergo during normal miningconditions. Tr. 643, 674.  

[4] The Secretary’scite to *Mountain Coal*, in support of his contention that the violationwas reasonably likely to result in an injury, cuts the other way. *See* Sec’yBr. at 5-7 (citing *Mountain Coal Co., LLC*, 31 FMSHRC 1220, 1238 (Oct.2009) (ALJ) (the judge’s non-S&S finding was based, in part, on the citedhoses being located behind the shields where miners did not regularly travel)).Similarly, the non-S&S finding in this matter is premised upon theSecretary’s failure to place miners in close proximity to the pressurized hosesunder either computer program, automated or manual.

[5] 30 CFR § 75.400provides that “[c]oal dust, including float coal dust deposited on rock-dustedsurfaces, loose coal, and other combustible materials, shall be cleaned up and notbe permitted to accumulate in active workings, or on diesel-powered andelectric equipment therein.”

[6] In both cases,the judges’ reliance on redundant safety measures was misplaced and, to theextent that their non-S&S findings were based on the wetness of theaccumulations, such reasoning has been rejected by the Commission. *SeeCumberland Coal*, 717 F.3d at 1028-29; *Mach Mining*, 40 FMSHRC at 4. 

 

[7] I also notethat, had this condition continued unabated, there was a heightened likelihoodof the belt coming into contact with the take-up structure, creating anothersource of friction and increasing the potential for an ignition.

 

[8] The Commissionhas recognized that methane liberation can compound the likelihood of ignitionin accumulation cases. *Mach Mining*, 40 FMSHRC at 4.

[9] 30 C.F.R. §75.340(a)(1)(i) provides, in relevant part that “battery charging stations . . . shallbe housed in noncombustible structures . . . . When a noncombustible structureor area is used, these installations shall be . . . [v]entilated with intakeair that is coursed into a return air course or to the surface and that is notused to ventilate working places.”

[10] Consol acknowledgesthat charging batteries liberate hydrogen. Resp’t Reply Br. at 6 (citing *LionMining Co.*, 16 FMSHRC 921, 923-24 (Apr. 1994) (ALJ); *Nats Creek MiningCo.*, 17 FMSHRC 115, 129-30 (Feb. 1995) (ALJ); *Bethenergy Mines, Inc.*,11 FMSHRC 1999, 2002-06 (Oct. 1989) (ALJ)).

[11] 30 C.F.R. §75.512 provides, in relevant part, that “[a]ll electric equipment shall befrequently examined, tested, and properly maintained by a qualified person toassure safe operating conditions. When a potentially dangerous condition isfound on electric equipment, such equipment shall be removed from service untilsuch condition is corrected.”

[12] 30 C.F.R. §75.202(a) provides that “[t]he roof, face and ribs of areas where persons workor travel shall be supported or otherwise controlled to protect persons fromhazards related to falls of the roof, face or ribs and coal or rock bursts.”

[13]Paymentshould be made 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.