**FEDERAL MINE SAFETYAND HEALTH REVIEW COMMISSION**

 

OFFICE OFADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

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

 

October 21, 2020
| SECRETARY  OF LABOR

 MINE  SAFETY AND HEALTH       

 ADMINISTRATION  (MSHA),

                Petitioner,

 

                        v.

 

CONSOL  PENNSYLVANIA COAL CO., LLC,

                Respondent.                                                            |   |   | CIVIL PENALTY PROCEEDING

 

     Docket No. PENN 2019-0100

     A.C. No. 36-07230-490127

 

 

 

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

 

**AMENDED DECISIONAND ORDER**[1]****

 

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

 

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

 

Before:                        JudgeLewis

** **

** **

**STATEMENTOF THE CASE**

This case arises under the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. § 801 et seq. (the “Act” or “Mine Act”). Ahearing was held in Pittsburgh, Pennsylvania. The parties subsequentlysubmitted briefs which have been fully considered in reaching the withindecision.

** **

**LAWAND REGULATIONS**

** **

****Section 314 (b)of the Act and Section 75.1403 of the Regulations provide: 

 

Othersafeguards adequate, in the judgment of an authorized representative of theSecretary to minimize hazards with respect to transportation of men andmaterials shall be provided.

 

Section 75.1434 **RetirementCriteria** provides:

 

Unlessdamage or deterioration is removed by cutoff, wire ropes shall be removed fromservice when any of the following conditions occurs:

(a)   The number ofbroken wires within a rope lay length, excluding filler wires, exceeds either—

(1)  Five percent ofthe total number of wires; or

(2)  Fifteen percentof the total number of wires within any strand;

(b)  On a regular layrope, more than one broken wire in the valley between strands in one rope laylength;

(c)   A loss of morethan one-third of the original diameter of the outer wires;

(d)  Ropedeterioration from corrosion;

(e)   Distortion ofthe rope structure;

(f)   Heat damage fromany source;

(g)  Diameterreduction due to wear that exceeds six percent of the baseline diametermeasurement; or

(h)  Loss of morethan ten percent of the rope strength as determined by non-destructive testing.

 

**FINDINGS OF FACT AND CONCLUSION OF LAW**

** **

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

 

**JOINTSTIPULATIONS**

** **

1.     The Bailey Mine(“Mine”) is subject to the jurisdiction of the Federal Mine Safety and HealthAct of 1977 (“Act”).

 

2.    TheMine is owned and operated by Respondent, Consol Pennsylvania Coal Company,LLC.

 

3.    Thepresiding Administrative Law Judge has jurisdiction over the above-captionedproceedings pursuant to Section 105 of the Act.

 

4.    Theparties stipulate to the authenticity of their exhibits, but not to therelevance or truth of the matters asserted therein.

 

5.    Thesubject citations and safeguards were served by a duly-authorizedrepresentative of the Secretary upon agents for Respondent on the dates andtimes and the placed stated therein.

 

6.    Respondentdemonstrated good faith in abating the alleged conditions after the issuance ofthe safeguards and citations.

 

7.    Thepenalties proposed on the Exhibit A attached to the Petition for Assessment forCitation Nos. 9076455 and 9076456 are incorrect. The Petitioner agreed toreduce the gravity of the citations to no likelihood, no lost workdays,non-S&S, and also the negligence to none at a pre-penalty settlementconference. The proposed penalties should have been $135 for each citation. Themine tonnage, controller tonnage and number of violations represented in theExhibit A attached to the Petition for Assessment are correct.

 

8.    Paymentof the total proposed penalty of $270 in this matter will not affectRespondent’s ability to continue in business.

 

T.4-6[2]

 

**SUMMARYOF TESTIMONY**

** **

**Witnesses**

** **

JosephA. Vargo

 

            Atthe time of hearing, Inspector Vargo had worked for MSHA for over 12 years. T.13. He initially worked as a coal mine inspector and later in 2012 had beenworking as an electrical specialist. Prior to working for MSHA, Vargo hadworked as a coal miner for approximately 30 years.[3] T. 14.

 

            InspectorVargo had issued a technical citation to Respondent arising from Vargo’sissuance of a safeguard (No. 9076448) in connection with unsafe conditionsobserved at the operator’s slope track and hoist on August 13, 2018. T. 15-18; *seealso*P-1.

 

*Interalia*, Vargo had noted a wear pad on the slope that had been worn downapproximately one and three quarters inches. T. 17.

            Thepurpose of the wear pads was to keep the hoist rope from coming into contactwith anything that could cause damage to the rope. T. 19. The slope hoist ropeshould not come into contact with any abrasive material such as gravel, rock, slate,or coal that would cause it damage. T. 20. Excessive wear of the wire ropecould lead to the potential of the rope breaking, sending anyone in the car tothe bottom at an excessive rate of speed. T. 21-22.

 

            Theregulations require that non-destructive testing of the rope—either throughmeasurements or x-rays—be performed every six months. T. 22. The concern isthat, during the six month interval, broken wires or metallic loss might not bedetected by visual examination. T. 23.

 

            Athearing, photographs were admitted into evidence, which depicted wear on theslope pads in August 2018, leading to the safeguard in question being issued.T. 23-28; P-5.

 

            Therewere approximately 100 wear pads on the slope track, which had a 14-degreegrade. T. 29, 44. Water could get into the valleys of the steel hoist rope,causing corrosion. T. 29. There were numerous escalation reports indicating therope was either kinked or damaged. T. 30; *see also* P-9. Photographs ofthe hoist rope, taken in August 2018, revealed what appeared to be broken wiresin the middle of the rope. T. 32; *see also* P-5. Photographs alsorevealed the rope being in contact with coal, and slate/rock mixture. T. 33;P-5. Materials on the tracks during the hoist lowering or raising could cause brakedamage and loss of control. T. 39-40. Someone not riding in a car could beexposed to a slip and fall hazard. T. 41.

 

            Oncross-examination, Inspector Vargo agreed that he had no experience working onhoists prior to coming to MSHA. T. 45. He also testified that he had neverworked on a hoist slope during his MSHA career. T. 45. His training regardinghoists came from a 1⁄2 day training at the mining academy and annual refreshertraining. T. 46.

 

            Vargohad not issued any safeguards between 2007 and August 2018. T. 27. Thesafeguards at issue were his first issuances. T. 47. 

 

            Inorder to issue a safeguard there must be an actual hazard with respect to thetransportation of men and materials and the hazard must not already be coveredby a mandatory safety standard. T. 47-48.

 

            Vargohad found the hazard associated with Safeguard No. 9076448 to involve damageand wear to the slope rope. T. 48. He testified that wear pads were cut throughor missing. T. 48. There was contact with steel grating, and trough rollerswere not turning. T. 48. There was metallic loss and distortion found in therope. T. 48.

 

            Vargofound that the hoist rope was compliant with the mandatory standards addressinghoist rope retirement criteria on August 7, 2018. T. 51.

 

            Ahoist rope, pursuant to § 75.1434, must be removed from service when the numberof broken wires within a rope lay length, excluding filler wires, exceeds 5% ofthe total number of wires, or 15% of the total number of wires within any string.T. 52. Also pursuant to § 75.1434, a rope must be retired or reterminated ifits diameter reduction exceeds 6% of the initial baseline. T. 53.

 

            Vargohad not issued a citation under § 75.1434 (h) because the standard specified aloss of more than 10% of rope strength and the rope strength loss was not as yetbeyond 10%. T. 55.

 

            Vargotestified that a hazard existed, even though the slope rope was still compliantwith the standard, because the rope “was right at the borderline.” T. 56. Onemore trip could have put it over the borderline. T. 56. Everything that therope was in contact with was abrasing the wire, the hoist rope. T. 56.

 

            AlthoughVargo had recommended that wear pads be replaced, he did not record such in hisnotes. T. 58.

 

            Wearpads were approximately 24” by 24” by 2” thick. T. 59. In his August 15, 2018citation, Vargo noted a wear pad worn down to 1 3⁄4”. T. 59; *see also* P-2.Vargo had not recorded in his notes that he had observed that 50-60 wear padswere worn or missing. T. 60. He had been told of such by a mine foreman. T. 60.Vargo himself had taken no measurements of the pads. T. 61. 

 

            Vargohad not inspected the slope on August 7, 2018. He had inspected the slopehoist, the brakeman car, the slope hoist building, and the remote hoistbuilding. T. 61-62. 

 

            MSHAhad not published any directives as to when wear pads should be replaced. T.64. A wear pad that was worn down one and three quarter inches would not be servingits function. T. 64. The photographs in Exhibit P-5 depicted the slope rope asit looked when it was not in operation. T. 65. 

 

            Vargoagreed that the slope rope would be exposed to rain and snow at times. T. 72.He believed that the two furthest trough rollers inby receive the most stress.T. 73. However, he conducted no further inquiry to determine whether this wasso. T. 73. He further had not determined how much, if any, the two staticrollers contributed to slope rope deterioration. T. 74. 

 

            Therewas no mention of the slope rope contacting concrete in the safeguard orVargo’s notes. T. 78.

 

            ExhibitP-8 contained reports of the slope hoist being down for more than 30 minutes.Vargo agreed that the March 9, 2018 report concerning braking system lock-uphad nothing to do with rope deterioration. T. 78-79. Another report indicatingthat the hoist had gone down also was not associated with slope rope issues. T.79; P-8, 3. Vargo further agreed that a kink in a hoist rope could happen to anew rope. T. 80.

 

            OnAugust 13, 2018, Vargo determined that the entire length of the rope contactedmaterial, rock, coal, slate, gravel, and water. T. 85. Vargo further statedthat this was not unusual for a slope rope. T. 86. 

 

            Asto Safeguard No. 9076449, Vargo had observed mine supplies along the slope. Hedid not know whether any of the material actually contactedthe slope car. T. 87; P-4. He had seen some materialin the middle of the track contacting the rope but had not noted such in thesafeguard. T. 87. Although he slipped on a roof plate while walking the slope,he had again not noted such in the safeguard. T. 88-89. Vargo agreed that noone regularly walked the slope. T. 89. He further agreed that, providedsupplies were against the rib and not contacting the slope car, they would notcreate a clearance issue or hazard. T. 89-90.

 

            Inreference to the summary of safeguards, Vargo agreed that there was no writtenexplanation as to what requirements were called for in order to have “properlymaintained” wear pads and rollers under Safeguard No 9076448. T. 91-92; R-18.The “above mentioned material” in the safeguard referred to slate, rock,gravel, mud, coal, and water. T. 92. Vargo again agreed that having suppliespushed against the rib in the slope, which did not contact the slope car wouldnot be a violation of Safeguard No. 9076449. T. 93. Vargo further agreed thatan individual walking up the slope belt would have a handrail to hold onto. T.95. 

 

            Onredirect Vargo further clarified that mine operators are provided with the fulltext of safeguards that have been issued and not just the summary of safeguardsas contained in R-18. T. 96.

 

            Slopewear pads are not doing their jobs if they don’t keep the hoist rope off theground and from contact with other materials. T. 97. 

 

            Atthe time of Vargo’s hoist rope inspection in August 2018, Bailey Mine’s next non-destructivetest (“NDT”) was scheduled for October 2018. T. 98. Vargo, however, agreed themine operator changed or reterminated portions of their ropes between the timesof the mandatory six month non-destructive tests. T. 99. He additionally agreedthat Baily Mine conducted daily visual rope exams that included the hoist rope.T. 99.

 

MichaelSnyder

 

            Atthe time of hearing, Michael Snyder had worked for MSHA for 33 years. T. 103.

 

            Hedescribed various photographs taken at Bailey Mine on August 17, 2018,contained in Exhibit P-5. T. 104. These included: the hoist rope (P-5, 1 and2); the rear of the brakeman car to which the hoist rope was attached (P-5, 3);the hoist rope running through debris (P-5, 4); the hoist rope drum (P-5, 5);wear pads covered with debris (P-5, 6); another photo of the rope from a longerperspective, running on top of the cross ties (P-5, 7); another view of therope cutting through the wear pads into the dirt (P-5, 8). T. 104-108.

 

            Therope was 1 5/8” in diameter and the wear pads about 2” thick. T. 108. Anon-destructive examination was taken of the rope at the worst section T. 108.The non-destructive test was “right at ten percent loss of metallic area.” T.108. Three physical diameter measurements were “right at approximately sixpercent.” T. 108. 

 

            Thehoist rope diameter measurements had been taken “at the worst spot” of 1.572,1.571 and 1.572—1.571 being the smallest diameter reading. T. 110; *see also*P-6. By dividing 1.71 by 1.67, there was found to be a 5.93% diameterreduction.[4]T. 110. Any reduction exceeding 6% met the regulation retirement criteria. T.110. While the diameter had not yet exceeded the regulation, “it was right atthe edge.” T. 110.

 

            Therehad been a non-destructive test performed on April 21, 2018—about one monthafter the rope had been installed. T. 111. Given that the next scheduled 6-monthexamination was set for October 21, 2018, and the inspection at-issue was onAugust 7, 2018, it would be 6 weeks before the hoist rope would have beenexamined again. T. 111.

 

            Lubricationallows the hoist rope wires to “move freely around.” T. 111. Exhibit P-5contained a photograph taken on August 7, 2018 of the spool showing a dry rope.T. 111-112. Areas having lubrication would appear darker. T. 113.

 

            ExhibitP-7 contained the memo sent to the district manager of the Mine Safety andHealth Administration Russell Riley by Snyder, detailing the August 7, 2018non-destructive test findings. T. 114. Based on his observations and testing,Snyder recommended that more frequent non-destructive examinations beconducted—every 4 months rather than 6-month intervals. T. 115. 

 

            Oncross-examination Snyder agreed that there were no violations or hazards foundin respect to the hoist rope on August 7, 2018. T. 119-120. 

 

            Indetermining whether there is diameter reduction exceeding six percent of thebaseline diameter measurement, pursuant to § 75.1434 (g), calipers could beused. T. 120-131. The hoist rope strength was “right at the limit” but“compliant” within the limits of § 75.1434 (h). T. 122. The hoist rope also didnot meet the broken wires retirement criteria contained in § 75.1434 (a). T.124. If a non-destructive test reveals more than a 10% loss of rope strength ora distortion of rope structure, the entire rope may not require changing out,but instead only require a retermination.[5]T. 125. 

 

            Snyderwas not aware that the operator reportedly conducted a daily examination of thehoist rope. T. 126-127. He agreed that approximately 350 feet of hoist rope wasreterminated on August 7, 2018. T. 129. The rope itself was approximately 3,000feet long. The rope (after the retermination) was not changed out in entirety.T. 130. Snyder had recommended wear blocks be installed to keep the hoist ropeoff the ground between the head shiv and the top of the slope. T. 131-132.Snyder was not aware of any criteria for determining whether a wear pad is wornout. T. 132. Nor was he aware of anything published by MSHA in reference tosuch. T. 132-133. The wear pads protect the rope by allowing the rope to cutthrough them. T. 133. Until the rope cuts the pad in two, the rope remains offthe ground and does not sustain additional abrasion which would accelerate itswear. T. 133.

 

            Whenthe slope rope is in actual operation, the tension in the rope would bedifferent. T. 135. As the conveyance travels down the slope, the rope tensionis going to increase by the weight of the rope that travels down the slope. T.136.

 

            Snyderdisagreed that the life of a slope rope depended upon factors that included itsfrequency of use. T. 137. If the rope hoist is properly maintained, “it lastslonger.” T. 137.

 

            Snyderwas not present at Bailey Mine on August 13, 2018, when Vargo conducted theinspection that resulted in the issuance of the August 15, 2018 safeguard. T.138.

 

            Whenthe hoist rope was reterminated, it was still in compliance but close to meetingthe retirement criteria. T. 139. Both old and new ropes can develop kinks,especially when they are abused or mishandled. T. 139-140. 

 

            Snyder’sdegree was in mine engineering, and he testified that he was neither astructural steel engineer nor a civil engineer. T. 141. Mine engineering didnot specifically teach students about wire rope. T. 141.

 

            Visualexamination of a rope hoist can reveal clusters of broken wires, inadequatelubrication, deformation to the rope. T. 142. Snyder noted no reported hazardsin the Respondent’s log book following the operator’s last 14-day examinationon March 29, 2018. T. 142-143.

 

            Snyderdid not have the authority to issue citations. T. 143. The multiple areas ofconcern regarding the hoist rope motivated Snyder to advise the operator toremove a portion of the rope. T. 144.

 

            Inreference to the safeguard at Exhibit P-2, Snyder observed some of the sameconditions on August 7, 2018. T. 144. Anything that adds friction to therope—as it is observed dragging through rock, gravel, slate, and coal—is goingto accelerate its wear. T. 145. Snyder did not believe that as the rope movesdown the slope, more tension would be created on the wear pads or rollers. T.146. The tension would be constant. T. 146. To perform the electromagnetictest, the rope would need to be in motion. T. 146.

 

            Priorto his August 7, 2018 inspection Snyder clarified that the last 14-day testwould not have been conducted as early as March. T. 147.

 

            Snyderhad visited Baily’s slope and other coal mine slopes in the past and hadobserved coal and rock going down the slopes. T. 147. He also agreed that theslope was exposed to outside elements, including rain and snow. T. 148. 

 

Craig Elson

 

            CraigElson worked for Consol Energy at the Crabapple Portal and had done so forapproximately 18 years. T. 152. At the time of hearing, he worked as assistant mastermechanic, overseeing underground and surface maintenance. T. 152.[6]

 

            Aslope hoist is used to haul material in and out of a coal mine. T. 155. In caseof an elevator malfunction, a hoist can also be used to transport individuals.T. 156. The slope hoist at the Crabapple Portal is operated by a hoistman. T.156. Different types of cars are loaded with supplies. T. 156. They will thenbe hoisted through the track switch, taken off the hoist car and delivered towhere needed throughout the coal mine. T. 156. The hoist rope is attached to abrakeman car; supply cars are coupled to the brakeman car.[7] T. 156.

 

            Thetotal length of rope at the Crabapple Portal is 3,000 feet. T. 157. From thepit mouth to slope bottom is approximately 1600 feet to 1800 feet.[8] T. 157. Theslope rope is attached to a drum; the drum winds or unwinds causing thesupplies to be dropped or raised.[9]T. 157-158. All the cars, including brakeman car and supply car, are on atrack. T. 157. 

 

            WhenElson worked as a surface electrician, he would line up hoist rope tests,including non-destructive tests, 30-day tests, 60-day tests conducted byFrontier-Kemper. T. 158. He was also involved with any of the examinationsinvolving the rope and hoist. He would address any breakdowns with the rope orcar, drum room electrical issues, verbal frequency driver operation, and anycommunication problems from the top to the bottom of the slope. T. 158. 

 

            Sensors(called “tags”) are placed at the pit mouth and near the bottom of the slopeand on top of the brakeman car so that the exact location of the car based upona mathematical footage calculation can be determined. T. 158-159.

 

            Thehoist operator has a computer in front of him containing the locationinformation. T. 159. There is another computer at the main hoist housecontaining the same information. T. 159.

            Elsondid not escort the inspector on the date the safeguard (P-2) was issued. T.160. Kevin Wilson, now retired, had done so. T. 160. Elson was working onAugust 7, 2018, when the hoist rope was examined by MSHA tech support. T. 160.A caliper is used to determine whether there is diameter loss exceeding 6% ofthe baseline. T. 161. Not every rope is identical in diameter size, there beinga few tenths of difference between various ropes. T. 162. 

 

            Thehoist rope, when examined on August 7, 2018, was not beyond the retirementcriteria. T. 163. MSHA did not issue any citations on August 7, 2018. T. 163.After the August 7, 2018 inspection Consol took out 350-foot of the rope thatwas approaching retirement criteria.[10]T. 163. The rope was earlier changed on December 14, 2017, and March 29, 2018.T. 163-165; *see also* R-1.

 

            Anon-destructive test was also performed in April 2018 by a subcontractor,Evergreen. T. 166; *see also* R-2. In conducting the NDTs, Evergreenutilizes a two-piece machine placed around the hoist rope. T. 167. The hoistcar is run at a set speed; the rope is x-rayed twice, once down and once back.T. 167.

 

            Areview of Evergreen’s certificates of inspection from April 23, 2016, throughApril 21, 2018, did not reveal that the Baily Crabapple slope rope had, at anypoint, met the retirement criteria. T. 168; R-2. The rope, however, wasreterminated or changed between the non-destructive test dates. T. 168-169.Rope changes would be required in order to maintain three wraps on the drum: a3,000 foot rope can be reterminated only so many times to stay within thosespecs to have the required number of wraps. T. 169. Some of the reasons forretermination or changing the ropes would be kinks, deformation andbroken strands. T. 169. 

 

            Inaddition to the 6 month NTDs, Consol conducts a visual examination of the hoistrope every 14 days during which the hoistman inspects the entire length of thecable for any kind of deformation or broken strand. T. 169. The hoistman alsovisually examines the hoist rope every 24 hours. T. 170-171; *see also*R-3.

 

            Additionally,there is a weekly permissibility examination performed, during which mechanicscheck all the safeties, connection points of the rope, anything electrical withthe brakeman car itself, including brakes, lights, and batteries. T. 171-172; *seealso* R-4.

 

            Duringthe examination of the slope car, “all the safeties” are checked. T. 172. Thebrakes are engaged to verify that they all set properly; batteries are checkedfor voltage; all lights and communications are checked. T. 172. The operatoralso checks for overspeed, mismatched speed, roll back.[11] T. 172; *seealso* R-4.

 

            Oncea shift before the hoist is operated, a hoistman also conducts an examination.T. 173-174; *see also* R-5. He checks the car brakes, the connection pointof the rope—“basically just making sure everything is in safe operatingcondition.” T. 174.

 

            Ifduring the daily slope car checklist a deficiency is found, the car would betaken out of service and MSHA would be notified of such by the shiftsupervisor. T. 175.

 

            Referringto Safeguard 9076448, wherein it was reported that the wear pad that the sloperope hoist rides on top of was worn down approximately 1 3⁄4”, Elson noted thatthe wear pads at Bailey Mine were sometimes 2” thick and sometimes 2 1⁄2” thick.T. 176. There are approximately 80 wear pads on the slope, which are designedto protect the rope. T. 176. Due to undulations in the mine floor, pads do notwear out at the same rate. T. 176-177. Rope tension also affected pad wear. T.177. A fully loaded train with seven cars caused a higher tension on the ropethan a brakeman car alone which could have sags in the rope. T. 177.

 

            Whena wear pad became worn through at Bailey Mine, it was either changed out orturned 90 degrees. T. 178. By turning the pads diagonally, double life could begotten out of one pad. T. 178. Elson estimated that during his approximate sixyears as electrical supervisor on the surface, there were at least sixoccasions when the pads were turned or changed out. T. 178. 

 

            Elsondiscussed the two trough rollers, approximately 40 feet inby the slope trackopening, that were reported to not be turning. *See also* Safeguard No.9076448. There were seven trough rollers at the pit mouth, a couple outside thepit mouth and a few more inby the mouth. T. 178-179. The trough rollers wereused to keep the rope over the knuckle. T. 179. The slope track wasapproximately 22 degrees. T. 179. The actual slope track on the surface beforegetting to the pit mouth opening was less. T. 179. During the transition overthe crest, the trough rollers held the rope up off the surface, “concretematerial or whatever.” T. 179. Rollers are made of steel and are exposed to theweather. T. 179. They are subject to “wash back”: water gets on the belt; coalis loaded onto the water; as it starts up the slope, the water will wash thecoal backwards and make a “mess.” T. 179-180.

 

            Elsonopined that the rollers at Crabapple Portal were not subject to the same wearor tension. T. 180. The third trough roller would take the most pressure orforce. T. 181. On August 13, 2018, this roller was turning. T. 181. The twoinby rollers, which were reported in the safeguard not to be turning, werenumbers six and seven out of seven total rollers. T. 181.

 

            Theslope hoist rope does sometimes come into contact with gravel, rock, slate,mud, coal, and water—as reported in the safeguard. T. 181. While the operatordoes its best to prevent such contact, there is approximately 300 feet of cableexposed to the weather at all times. T. 181. 

 

            Elsondisagreed with the assertion in the safeguard that the hoist rope had beenremoved from service “multiple times” for excessive wear. T. 181-182; *seealso* P-2. On two occasions a non-destructive test was conducted. T. 182.Although the rope was below the retirement age, it was decided to change itout. T. 182. This was not done because of excessive wear; the majority of timeit was “for kinks in the rope, distortion.” T. 182. 

 

            Inreference to Safeguard No. 9076449 noting various mine supplies on both sidesof the tracks (P-4), Elson did not know of any material contacting the slopecar as it dropped down. T. 182. Nobody normally walked the hoist slope. T.182-183. If for whatever reason, one were to walk out of the mine, one woulduse the slope belt rather than the slope track because of the high velocity ofair coming down the slope track—over 9,000 CFM. T. 183-184.

 

            Elsondisagreed that having mine supplies in the slope entry constituted a hazard. T.184.

            Inreference to the wear pads depicted in the final photograph in P-5, Elsonagreed that these pads were rectangular in shape and would have to be changedout—unlike the square wear pads on the slope. T. 185. Elson further agreed thata second rectangular wear pad depicted in the P-5 final photograph wouldrequire replacement. T. 186.

 

            Ifwear pads are covered with material and the rope is dragging through thematerial the wear pad is not serving its purpose. T. 186; *see also* P-5.The examination reports in R-1 disclosed the need to replace the hoist ropebefore six months had elapsed. T. 188. A non-turning roller would add morefrictional wear than a turning roller. T. 188-189.

 

            Thereare three LED lights that face the track and route which, in combination withcap lights, aid visibility at night. T. 192-193. However, Elson conceded thatthe nighttime darkness on midnight shift would affect visibility. T. 190; *seealso* R-3. The escalation reports, where problems were noted, all cameduring daylight hours rather than midnight hours. T. 191. 

 

            Elsondid not possess a hoistman card or a hoistman certification nor had he everphysically worked on wire ropes. T. 189. 

 

            Usageof the slope rope would affect its life. T. 192. The rope changes reported inR-1 were between NDTs, establishing the operator was not only changing the ropewhen a NDT was performed. T. 192. 

 

MichaelTennant

 

            MichaelTennant had worked for Respondent for approximately 20 years, being employed atBaily Mine for 18 years.[12]T. 194. Tennant had been working as a safety supervisor for Baily Mine inAugust 2018. T. 195.

 

            ExhibitP-1 was a technical violation issued in response to a letter submitted toDistrict Manager Russell Riley in connection with the safeguard issued onAugust 13, 2018. T. 196. Exhibit P-3 was a similar technical citation for adifferent safeguard issued on August 13, 2018. T. 197. 

 

            Tennantwas aware that Inspector Vargo intended to inspect the Crabapple slope, hoist,and rope on August 13, 2018. T. 197. He discussed Vargo’s issuance of thesafeguards and conveyed his disagreement with such. T. 198. 

 

            ExhibitR-7 was a list of dates that Tennant reported to MSHA that Crabapple hoist hadbeen down in 2016, 2017, and 2018. T. 200. Tennant had created the document torebut the safeguard assertion that the Crabapple hoist had been taken downmultiple times for wear on the rope.[13]T. 200. On none of the dates reported in 2016 had the hoist been taken out ofservice for excessive wear. T. 201. On October 22, 2016, the operator did takethe hoist out of service because it was “close enough to the non-destruct.” T.201.

 

            Inreference to R-8 (Request for Health and Safety Conference), Tennant hadrequested conferences on the safeguards issued. T. 203. 

 

            Asto Safeguard No. 9076448, Tennant disagreed that there was any specific hazardpresented. T. 206. The slope hoist rope was “in fine shape.” T. 2016. Nobody’slife was in danger; no equipment was in danger. T. 207.

 

            Asto Safeguard No. 9076449 (P-4) Tennant again did not believe any specifichazard was presented by mine supplies on the side of the slope tracks. T. 207.He was unaware of any car coming into contact with any of the cited material.T. 207. There was already a safeguard at the mine that required 24 inchesclearance. T. 207-209; *see also* R-10 Re slip and fall hazard.

 

            Ascompared to track haulage, the slope car only went to the bottom area of themine. T. 210. The slope car was moved by the hoist rope; track cars were pulledby a locomotive. T. 211; *see also* R-10, Safeguard No. 3670427.

 

            Tennantcontended that if the hazard presented was a “slip and trip” hazard, SafeguardNo. 3670427 already addressed such. T. 212; R-10. If the hazard was derailment,there had been nothing observed by Vargo of materials coming into contact withthe slope car. T. 212. 

 

            Suppliesin the slope entry or on the slope itself did not present a hazard unless theycame into contact with a car. T. 212-213. 

 

**CONTENTIONSOF THE PARTIES**

 

            Asto Safeguard No. 9076448 (P-2), the Secretary contends that the Respondentfailed to address various unsafe conditions involving the slope hoist rope atthe Crabapple Portal of Bailey Mine. These hazardous conditions included:multiple worn wear pads on the slope track; the hoist rope running into steelgrating for approximately six feet; two trough rollers that would not turn whenthe hoist rope was in contact with them; the hoist rope being dragged throughgravel, rock, slate, mud, coal, and water; excessive wear and damage to thehoist rope; the slope hoist rope’s removal from service multiple times forexcessive wear. 

 

            Asto Safeguard No. 9076449 (P-4), the Secretary contends that the Respondentimproperly allowed the accumulation of debris and supplies on both sides of theslope track. 

 

            Asto Safeguard No. 9076448, Respondent contends that the alleged transportationhazards associated with the Crabapple hoist rope were already covered bymandatory safety standards at 30 C.F.R. § 75.1430 through § 75.1438. As such,the safeguard was facially invalid because there was no actual mine specifictransportation hazard not (already) covered by a mandatory safety standard.Respondent alternatively contends that, even if the safeguard was faciallyvalid, there were no actual transportation hazards existent at any of thepertinent times within. The Respondent makes a similar argument with regards toSafeguard No. 9076449, arguing that it is invalid because there was no actualmine specific transportation hazard, and that the safeguard did not adequatelyarticulate the hazard or the conduct required of the operator to remedy suchhazard.

 

            Asto Safeguard No. 9076449, at hearing the Respondent contended that any allegedtransportation hazard associated with the track was already covered by anexisting mandatory safety standard (Safeguard No. 3670427) and that, in thealternative the Secretary failed to prove the existence of any actualtransportation hazard associated with the slope track. 

 

**ANALYSIS**

 

Issue I:      WasSafeguard No. 9076448 facially invalid in that the contemplated transportationhazard—hoist slope rope failure due to excessive wear and tear—was alreadycovered by existing mandatory safety standards at 30 C.F.R. §§ 75.1430 through75.1438?

 

Issue II:     AssumingSafeguard No. 9076448 was not facially invalid, did the Secretary carry hisburden of proving the existence of an actual transportation hazard?

 

Issue III:    Assumingthe Secretary carried his burden of proof, did he properly articulate theconduct required of the operator to remedy the hazard?

 

Issue IV:    WasSafeguard No. 9076449 facially invalid in that the contemplated safety hazardsassociated with the slope hoist track were already covered by prior SafeguardNo. 3670427?

 

Issue V:     AssumingSafeguard No. 9076449 was not facially invalid, did the Secretary carry hisburden of proving the existence of any actual transportation hazard?

 

Issue VI:    Assumingthe Secretary carried his burden of proof, did he properly articulate theconduct required of the operator to remedy the transportation hazard?

 

I.                SafeguardNo. 9076448 was facially invalid in that the contemplated transportationhazard—hoist rope failure due to wear and tear—was already covered by mandatorysafety standards found at 30 C.F.R. §§ 75.1430 through 75.1438.

 

At hearing andin his post hearing brief the Respondent contended that a safeguard may not beissued if there are already existing mandatory standards addressing thetransportation hazard alleged. *See also* RB 7-11. *Cyprus CumberlandResources Corp.*, 19 FMSHRC 1781, 1784– 85 (Nov. 1997), citing *SouthernOhio Coal Co.*, 14 FMSHRC 1, 8 (January 1992) (“*SOCCO II*”)) (“Inorder to issue such a safeguard, an inspector must determine that there existsan actual transportation hazard not covered by a mandatory standard and that asafeguard is necessary to correct the hazardous condition.”). 

 

The Secretarydid not dispute this proposition at hearing. Inspector Vargo respondedaffirmatively when asked at hearing, “would you also agree with me that toissue a safeguard, the actual hazard with respect to the transportation of menand materials you determined to have existed must also not be covered by amandatory standard?” T. 48. Rather, the Secretary cited to theapplicable sections of the Act and regulations establishing MSHA’s authority toissue mine-specific safeguards to minimize hazards with respect to thetransportation of men and materials and Commission case law in support of such.*See, inter alia*, SB 4-5, *citing* § 314 (b) of the Act, 30 C.F.R. §75.1403 of the regulations, and the Commission holding at *Pocahontas CoalCo. LLC*, 38 FMSHRC 157, at 157 (Feb. 2016).

 

            However,the general authority of MSHA inspectors to issue transportation safeguards ona mine-to-mine basis is not at issue.[14]Rather, Respondent has challenged Coal Mine Inspector Vargo’s issuance of thisparticular safeguard on the basis that mandatory safety standards in Part 75 of30 C.F.R. already address the alleged transportation hazard posed at BailyMine.

 

            Asto this threshold question, this Court finds that the existent safety standardsin Part 75 of 30 C.F.R. §§ 75.1430 through 75.1438 do address thetransportation hazard alleged to have existed at the operator’s CrabapplePortal.

 

            ThisCourt begins its analysis by considering what was the specific transportationhazard alleged.

 

            Thehazard as described in Safeguard No. 9076448 was “wear and damage (to) thehoist rope.” P-2, Section 8, Condition or Practice. At hearing, CLR Polkastated that the safeguard had been issued to protect miners from being exposedto the hazards of “the rope wearing out before it is expected and increasingthe likelihood of an accident related to (the) rope failure.” T.8. Similarly,Inspector Vargo testified that his “main concern” in issuing the safeguard wasdamage and wear to the slope rope. T. 48.

 

            Athearing there was much testimony directed toward various hoist slopeconditions, including worn or missing wear pads, static trough rollers; thehoist rope’s exposure to the elements; the hoist rope’s contact with steelgrating or concrete; and the hoist rope dragging through gravel, rock, slate,mud, coal, and water. *See* P-2, *see also* T. 17, 18, 20, 28, 33,41, 70, 73, 74. Such conditions may or may not constitute hazards in and of themselves.However, clearly the ultimate transportation hazard contemplated in SafeguardNo. 9076448 was *hoist rope failure due to excessive wear and tear*. Suchhazard is already covered in the cited regulations under *Wire Ropes* inTitle 30 of the regulations, §§ 75.1430 through 75.1438. Said sections addressin detail when damaged or deteriorated wire hoist ropes should be repaired orreplaced in order to avoid rope failure.

 

*Interalia*, these sections specifically provide that “wire ropes...used to hoist” (§75.1430) shall be subject to “minimum rope strength” values (§ 75.1431),“initial measurement” (§ 75.1432), “examinations,” including biweekly visualexamination and 6 month non-destructive testing (§ 75.1433), “retirementcriteria,” including rope diameter reduction and rope strength loss percentages(§ 75.1434), “end attachment retermination,” (§ 75.1437) and “end attachmentreplacement” (§ 75.1438). These regulatory standards go to the heart of whatconstitutes excessive hoist rope wear and tear and render the within safeguardas duplicative and preemptive. 

 

            Considering,therefore, the record *in toto* and Respondent’s persuasive arguments onpoint, this Court finds Safeguard No. 9076448 to be facially invalid. The ALJ,however, recognizes that this a close question.[15]Accordingly this Court will further consider whether the Secretary carried hisburden of proving that an actual transportation hazard existed when CMI Vargoissued the safeguard and whether MSHA had properly articulated the conductrequired of the operator to remedy such hazard with specificity. 

 

II.              TheSecretary failed to carry his burden of showing that an actual transportationhazard existed at the time in question.

 

Asdiscussed *intra*, neither of Secretary’s witnesses had testified that anyof the retirement criteria were met under § 75.1434 on the dates Snyderperformed his non-destructive test nor the dates Vargo conducted hisinspections or issued the safeguard. T. 51, T. 55, T. 85.

 

Vargoopined that an actual transportation hazard existed because the hoist rope was“right at the borderline.” T. 56. Similarly, Snyder testified the rope was“right at the limit.” T. 122. There is a speculative quality to these opinionswhich renders them problematic. According to Vargo’s and Snyder’s rationales,although the hoist rope was still compliant with all applicable wire roperegulations, a transportation hazard nonetheless presently existed because atsome looming time the rope would become non-compliant and fail. Such reasoningimplicates fundamental norms of due process. The reasoning also improperlyimports the Commission’s assumption of continued mining operations indetermining reasonable likelihood, to the analysis of whether a violationexisted. *See**Black Beauty Coal Co.*, 34 FMSHRC 1733, 1740 (Aug.2012), *aff'd sub nom. Peabody Midwest Mining, LLC v. FMSHRC*,762 F.3d 611 (7th Cir. 2014).[16]

Inconsidering whether the Secretary carried its burden of proving an actual hoistrope transportation hazard existed, this Court has considered the weight to beaccorded Vargo and Snyder’s testimony. The Secretary cites Vargo’s 30 years ofmining experience and urges that “great weight’ be given their testimony “dueto their specific experience and training regarding the issues in this case...”SB 4.

 

ThisCourt notes, however, that while Inspector Vargo had decades of experience inmining, he had little direct experience working on hoist slopes. Oncross-examination, Vargo conceded he had never worked on slope hoists or withhoist ropes prior to joining MSHA in 2007. T. 45. He had no hoist-relatedcertifications. T. 45-46. He had not performed actual work on slopes while atMSHA. T. 45. He had received “probably half a day” training on slopes at theMine Academy. T. 46. He had never issued a safeguard prior to the issuance ofthe within safeguards. T. 47. 

 

Vargowas unable to corroborate some of his testimony with his contemporaneous notes.T. 58-61; *see also* P-2. He had failed to take photographs on the date(s)of his observations, documenting such. T. 61. He also had failed to take actualmeasurements as to the depth of the grooves on the wear pads. T. 61. He wasuncertain as to actual number of trough rollers that were located on the hoist.T. 72. Although he believed that the two inby rollers cited in the safeguardbore the most pressure, he had not inquired to confirm such. T. 72.

 

InspectorVargo was also unable to determine how much—if any—contributory effectnon-turning trough rollers would have on overall hoist rope erosion.[17] T. 72;P-2. He was unaware that Respondent had contracted wire rope specialists toperform work on the hoist rope days before he had issued the safeguard.

 

InspectorSnyder’s mining engineering discipline did not involve any education in wire**ropes. T. 141. Like Mr. Vargo, Michael Snyder had found no violations ofthe hoist rope on August 7, 2018. T. 51, 55, 110-120. He found the rope to be“right at the limit” but compliant. T. 122. He conceded that rope strength lossof 10% could be remedied by reterminating the affected section rather thanchanging out the entire rope. T. 125-126. He was unaware that the operator wasalso conducting daily examinations of the hoist rope. T. 127. He further agreedthat, prior to the issuance of the safeguard, 350 feet of the hoist rope hadbeen reterminated on August 7, 2018. T. 129-130. Snyder had not considered atthe time the rope had been reterminated, whether it was safe to operate despitethe worn wear pads.[18]T. 132.

 

Onthe other hand, Craig Elson, the operator’s assistant master mechanic, had jobexperience with hoist operations. T. 157-158. He testified that the hoist ropehad been reterminated on August 7, 2018, days prior to the August 15, 2018issuance of the within safeguard. T. 163, 165. Elson further gave unrebuttedtestimony that, as long as there were three remaining wraps on a drum [see also§ 75.1436 (b)], portions of the rope could be cut out, still allowing it toremain compliant and not thereby requiring the entire hoist rope to bereplaced. T. 125-126. He also noted that there were daily visual examinationsof the hoist, as well as the 14-day examinations. T. 170; *see also* R-3.Elson noted that wear pads wore out at different rates due to undulations inthe floor. T. 177. He further testified that the third trough roller (which wasturning during Vargo’s inspections) would be sustaining the most pressure orforce—not the two inby static trough rollers described by Mr. Vargo in thesafeguard. T. 180-181. Unlike Vargo, Elson knew the exact number of trough rollerslocated on the slope hoist. T. 181.

 

Asto Vargo’s assertion in Safeguard No. 9076448 that the slope rope had beenremoved from service multiple times for excessive wear, Mr. Elson testifiedthat this was inaccurate. T. 182. The majority of times that the rope wasremoved was for kinks or distortions—not wear or tear.[19]*See*R-7.

 

TheOperator’s safety supervisor, Michael Tennant, also disagreed with Vargo’scharacterization, submitting a written summary detailing the dates that theCrabapple hoist was reported “down” to MSHA. T. 199-201; R-7. The hoist hadbeen reported down only two timesin 2018, priorto Vargo’s August 7, 2018 inspection, one of which was for car brake issues andone for kinks, neither time for wire rope wear and tear. R-7.

 

Neitherof the Secretary’s witnesses gave persuasive testimony as to the nature or rateof wear/tear to the hoist rope caused by the various alleged hazardousconditions that they described. 

 

ThisCourt concludes that the Respondent’s witnesses knew as much as or more thanSecretary’s witnesses regarding the actual operation of the slope hoist and wasultimately left uncertain as to the accuracy of the Secretary’s contentionsthat actual transportation hazards existed.

 

Astrier-of-fact and trier-of-law, this Court was unable to find that the Secretaryproved his case by the preponderance of the evidence. 

 

III.            TheSecretary failed to articulate the hazard and conduct required of the operatorto remedy the contemplated hoist rope hazard with specificity.

 

Evenif the Secretary had carried his burden of establishing the existence of anactual transportation hazard, this Court is also persuaded by Respondent’sargument that the Secretary failed to articulate the hazard and conductrequired of the operator with specificity. *See*RB, pp. 14-16.

At hearing, the Secretary’s witnessesacknowledged that many of the conditions cited at the slope hoist—exposure tothe elements, the presence of gravel, rock, slate, mud and water—were commonlyfound at mines throughout the country. T. 86.

 

This Court was not enlightened bySecretary’s hearing presentation as to how such conditions could bespecifically remedied.[20]

 

At hearing legitimate questions werealso raised as to the effect of tension on the rope when the hoist was inoperation and whether during operation the rope actually came into contact withdebris. *See, inter alia*, T. 132-135.

 

CMI Vargo noted in his safeguard that“all wear pads that the hoist rope travels over be properly maintained.” P-2.However, Vargo gave vague and inconsistent testimony as to what constituted "propermaintenance” T. 62-64, T. 91.[21]MSHA has not published any specific guidelines as to wear pad maintenance orreplacement. T. 64, T. 132-133.

 

At hearing and in the safeguard, Vargohad noted that a wear pad had been worn down approximately 1 3⁄4 inches. P-2.This was an estimate as Vargo had failed to take actual measurements of thegroove or, indeed, the actual thickness of the wear pad in question. At hearingit was indicated that wear pads wore out at different rates, that wear padswere of different shapes, including square and rectangular shapes, and thatthey were of varying thickness. *See, inter alia*, T. 176-178. Given allthese variables this Court concludes that the operator was given insufficientnotice as to when a particular pad or group of pads actually needed to bereplaced.

 

This Court does not have the authority orinclination to dictate what specific guidelines should have been placed inMSHA’s safeguard regulating hoist ropes at Baily Mine. However this Courtsuggests that the remedies for repair or replacement of such items as wear padsor trough rollers should have some specificity. For example, a wear padmeasuring 2 1⁄2 inches in thickness should be replaced or rearranged when it isworn down to 1⁄4 inch thickness.[22]Similarly, notice of specific criteria as to when the number and position ofstatic rollers pose a transportation hazard should be afforded to the mineoperator.[23]As to the condition of hoist rope removal from service “multiple times,” theALJ suggests that a specific number of times within a specific time period fora specific cause be clearly set forth in the safeguard.

 

In summary this Court further finds thatthe safeguard was fatally deficient in articulating the hazard and conduct ofthe operator to remedy such hazard with specificity. For the foregoing reasons,Safeguard No. 9076448 violation should be vacated. 

 

IV.           SafeguardNo. 9076449 does not address transportation hazards covered by a previoussafeguard issued at Baily Mine.

 

Unlike Safeguard No. 9076448, this Courtconcludes that Safeguard No. 9076449 is facially valid in that the specifictransportation hazards which Inspector Vargo sought to prevent were not alreadycovered by an existing mandatory safety standard.

 

In reaching the within conclusion, thisCourt was persuaded by the arguments raised in Secretary’s brief as to thediffering hazards contemplated in Safeguard Nos. 3070427 and 9076449. *Seealso* SB, 8-10.

 

Respondent has contended that SafeguardNo. 3670427, issued at Baily Mine in March 2001, already addressed the safety hazardscontemplated in the MSHA inspector Safeguard No. 9076449, issued in August2018. T. 210-211.

 

This Court does not agree. TheSecretary’s arguments against such preemption are persuasive. *See also* SB,8-10.

 

At hearing Baily Mine’s safetysupervisor, Michael Tennant, agreed that Safeguard No. 3670427 dealtspecifically with track haulage. T. 210. On cross-examination, he conceded thatthe safeguard did not address such hazards as hoist car derailment.

 

Considering also that Safeguard No.9076449 dealt with a different area of the mine, the slope hoist area, asopposed to track haulage areas, that track cars are moved by locomotives andslope cars by a hoist rope, and given the different transportation described *infra*,this Court finds Safeguard No. 9076449 to be facially valid.

 

V.             TheSecretary failed to carry its burden of proving that an actual transportationhazard contemplated in Safeguard No. 9076449 existed at the time of MSHA’sinspection(s).

 

Safeguard No. 9076449 indicated thatvarious mining supplies and discarded items were seen on both sides of theslope tracks. P-4, Section 8. The Secretary contends that these conditionscreated various hazards. *See also* SB, 9-10. There would be a slip andtrip hazard presented to miners traveling on foot such as examiners, trackcleaners, and miners using the track slope as an emergency route. T. 38-39, 44,183. Debris could fall into the hoist car’s brake clamps and track, preventingthe cars from stopping, creating a struck-by hazard for miners in the hoistcars, including examiners and miners working in the slope track or working atthe bottom of the slope track. T. 40-41. There being no seat belts, minersmight be thrown out of the hoist cars. T. 39. Debris could come into contactwith the rail and the hoist car wheels and could cause a derailment. T. 39-43.The hoist rope could abrade against debris in the slope track and createadditional excessive wear. T. 39-41. A struck-by hazard would be created forminers working in or at the base of the slope track or for miners riding inhoist cars. T. 30-41. 

At hearing, however, Mr. Vargo offeredlittle evidence that the supplies and debris described in the safeguard wereactually in contact with the slope track, brakes or slope cars, or slope hoist.[24] Oncross-examination, Vargo admitted that he did not know whether any material wasactually contacting the slope car. T. 87.

 

As to many of the alleged hazards, Vargooffered little in the way of corroborative support. He had failed to takemeasurements to determine how close material was to the track. T. 87. Whiletestifying that there was material in some areas contacting the slope rope, nosuch observations were recorded in the safeguard or his contemporaneous notes. T.87; *see also* P-4.

 

Similarly, as to whether materialpresented a slip and trip hazard, Vargo again failed to note such in thesafeguard or his notes.[25]T. 88. This led to Vargo having to split hairs in his testimony. Hisexplanation that he hadn’t said “slipped” or “tripped”, but only that heslipped was somewhat confusing. T. 89. This Court found it an open question asto whether Vargo and his escort had slipped because of the steepness of gradeor because of material in the space between the track and supplies. Given thatit is Secretary’s burden to establish each operative fact, this Courtspecifically finds that the Secretary failed to carry such burden as to theexistence of an actual slip and trip or slip and fall hazard.

 

This Court finds the Respondent’sarguments as to the absence of actual transportation hazards to be persuasiveand holds that it is correct. *See also* SB at 17-18.

 

VI.           Assumingthe Secretary did carry his burden of proof, the Secretary failed to properlyarticulate the conduct required of the operator to remedy the contemplatedtransportation hazards.

 

This Court agrees with Respondent’sargument that Safeguard No. 9076449 is invalid because it contains vague andnon-specific remedies that do not adequately address or provide adequate noticeof the conditions and how the operator is to remedy the contemplatedtransportation hazard. *See* RB, p. 18.

 

The safeguard directs that the slopetrack be “kept free of these mine supplies and other supplies that are hoistedin and out of the mine.” T. 93; P-4. Given that supplies are hoisted in and outof the mine, the safeguard provides insufficient direction as to how the slopetrack should be kept free of such. Considering Vargo’s testimony that suppliesor materials located in the slope which do not contact the slope car are nothazardous, the safeguard provides insufficient notice as to what remediesshould be undertaken to avoid the contemplated transportation hazards.[26]

For the foregoing reasons, Safeguard No.9076449 violation should be vacated. 

 

**ORDER**

 

            Itis the **ORDER** of this Court that Citation Nos. 9076455 and 9076456 and respectiveassociated Safeguard Nos. 9076448 and 9076449 are hereby **VACATED** and **DISMISSED**.

 

 

 

 

 

/s/John Kent Lewis

John Kent Lewis

Administrative Law Judge

 

 

Distribution:

 

JohnStrawn, Esq., Office of the Solicitor, U.S. Dep. of Labor, The Curtis Center,170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306 strawn.john@dol.gov

 

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

 

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

 

/mzm

----

[1]This order has been amended to include the technical citation numbersassociated with the safeguards at issue herein. 

[2] “T” refersto the hearing transcript. “P” refers to the Secretary’s exhibits. “R” refersto Respondent’s exhibits. “SB” refers to Secretary’s post hearing brief and“RB” refers to Respondent’s post hearing brief.

[3]*See*T. 13-15 for detailed description of Vargo’s mining experience and specializedcertifications. 

[4] TheTranscript erroneously states the diameter reduction as 1.71 in one instance,where it should read 1.571. T. 110

[5] Aretermination was described as when one takes a portion of the rope and installsa new portion to the existing rope with zinc oxide. T. 125.

[6]*See*TT 152-155 for other mining positions held and certifications received.

[7] A brakemancar is used to hoist individuals. T. 156.

[8] Pit mouth“is the opening in the earth where you go from surface to underground in thebeginning of the tunnel on your 22 degree decline into the coal mine.” T. 157.

[9]The drum is also called a “drum room.” Tr. 157-158.

[10] KetchumConstruction, a subcontractor, actually performed the work. T. 163.

[11] Forexample, if the hoist rope would break, the car would go into overspeed. Thebrakes would be locked to the rail, avoiding a runaway car. T. 172-173.

[12]*See*TT 194-195 for full resume. 

[13] The fulltitle of the document, which was partially obscured, read “reportable CrabappleHoist Car.” T. 200. “Reportable” meant anytime the elevator was inoperable formore than 30 minutes in which case MSHA had to be notified. T. 200.

[14] Likewise,the question is not, as Secretary seems to imply, whether a safeguard isinvalid because it addresses hazards that exist at other mines. *See* SB5, *Citing Oak Groves Res., LLC*, 35 FMSHRC at 2013.

[15] Arguably,the MSHA inspector may have been properly exercising his statutory and regulatoryauthority under Section 314 (b) of the Act and Section 75.1403 of theregulations notwithstanding the Part 75 *Wire Ropes* standards discussedwithin. This is not an instance where the overreach of authority is manifestedwith refulgent clarity such as, for example, Martin Luther’s accusation of PopeLeo X’s usurpation of jurisdiction over Purgatory. 

[16] The followinganalogy may not be on all fours. However, this Court wonders if the Secretary’switnesses would accept—with equal equanimity—the finding of a Highway PatrolOfficer that they were guilty of speeding because they were traveling at 64miles per hour in a 65 MPH zone and would be presumably going over the speedlimit shortly. 

[17] As noted *infra*Elson maintained that the two non-turning trough rollers would not be bearingthe most pressure exerted by the hoist rope—rather the third roller, which wasturning, would. 

[18] Thoughfinding Snyder to be an honest individual, this Court also found Snyder to bepurposely unresponsive to some of Respondent’s counsel’s questions.

[19] Kinks maybe found in even new wire ropes. T. 80, 139. 

[20]*Seealso* Respondent’s arguments on point at RB, pp. 15-16.

[21] In itsbrief the Respondent persuasively reviewed Vargo’s contradictory testimony. RB,at pp. 15-17.

[22] At hearingSecretary’s witness, Mr. Snyder, implied that a wear pad could serve itsfunction until it was actually cut in half. T. 132-133.

[23] In hisbrief Respondent persuasively argues that neither the safeguard nor Mr. Vargodetailed what it meant for rollers to be “properly maintained” or to “turnfreely” or how operator was to achieve the mandate. RB, p. 16.

[24] The issueof slope rope damage has already been discussed above.

[25] This Courtalso notes there may be an issue as to whether a slip and fall hazardconstitutes a hazard with respect to transportation under § 75.1403.

[26]For example should there be a certain clearance distance maintained between thehaulage track and any supplies, materials, debris along the track?