FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 10, 2022

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

 :

v. : Docket No. PENN 2019-0008

:

CONSOL PENNSYLVANIA COAL : 

COMPANY, LLC :

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

DECISION

BY: Commissioner Rajkovich1

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act” or “Act”) and concerns a citation issued by the Secretary of Labor’s 

Mine Safety and Health Administration (“MSHA”) to Consol Pennsylvania Coal Company, 

LLC (“Consol”). The citation alleges a violation of the mandatory safety standard at 30 C.F.R. 

§ 75.517, which requires that “[p]ower wires and cables . . . shall be insulated adequately and 

fully protected.” The inspector designated the citation as significant and substantial (“S&S”),

2

and MSHA charged Consol with a moderate degree of negligence.

Consol contested the citation and the proposed civil penalty. The case proceeded to a 

hearing before a Commission Administrative Law Judge. On December 30, 2019, the Judge 

issued a decision affirming the citation and finding moderate negligence and an S&S violation. 

The Judge assessed a $2,487 penalty. 41 FMSHRC 803 (Dec. 2019) (ALJ). Consol filed a 

petition for discretionary review, contending that the record evidence does not support findings 

in the Judge’s decision and that the decision contains errors of law. The Commission granted the 

petition for review. 

The Commission affirms the findings of a violation and moderate negligence; however, 

we reverse and vacate the S&S designation. Finally, in the interest of judicial economy, the 

1 A majority of Commissioners joins in each section of Commissioner Rajkovich's 

opinion in result, and therefore it constitutes the Commission's decision in this case.

2

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 

814(d)(1), which distinguishes as more serious any violation that “could significantly and 

substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
2

Commission assesses a penalty of $1,000. Chair Traynor writes a separate opinion in which he 

dissents from the majority’s conclusion that the S&S designation should be reversed and from 

the majority’s assessment of a $1,000 penalty. In addition, Commissioner Althen includes a 

separate opinion in which he sets forth an alternative reason for concluding that the S&S 

designation should be overturned.

I.

Factual and Procedural Background

On August 26, 2018, MSHA inspector Bryan Yates arrived at Consol’s Enlow Fork coal 

mine in Pennsylvania to conduct an inspection. Yates proceeded underground, accompanied by 

Daniel Colby, Consol’s safety representative.

During the inspection, Yates and Colby walked along an entry in the No. 13 feeder 

location. As Yates walked along the entry, he observed the feeder cable hanging down from

hooks secured to the roof or rib. Tr. 142, 144. The cable was energized during Yates’ 

inspection, but the section was not working. Consol had conducted an electrical inspection of 

the cable the previous day and had not reported any deficiencies in the cable. The inspector did 

not issue any citations in connection with that inspection.

Yates did not take any photographs of the cable hanging on the hooks in the citation 

location. However, he did take two pictures of the cable hanging in a different area where 

testimony established the roof was lower than in the citation area. 

Yates had testified that the cable was hung from a hook that he called a “J hook.” Colby,

at one point, also used the term “J hook.” However, Colby then explained that the term “J hook” 

was incorrect and that the hooks upon which the cable hung were properly referred to as “cable 

hooks” or “locked hooks.” Tr. 228-30. Colby illustrated the difference using two photographs 

taken by Yates, which show the subject cable further along the entry. Sec’y Ex. 13 (third and 

fourth photographs), Tr. 148. 

Looking at the third picture (the word “pinch” appears”), Colby pointed out that the cable 

hung on a locked hook that was completely closed and attached to the rib of the entry. He 

referred to the hook as a “cable hook” or “locked hook” attached to the rib. To show the 

difference between J-hooks and the cable hook upon which the cable hung, Colby circled a small 

open hook that he identified as a “J hook” at the edge of the picture. This small hook contrasted 

with the larger locked hooks supporting the cable.

Colby explained that, due to the way the cable was hung on the locked hooks, the only 

way for the cable to fall to the floor was to destroy the insulated and locked hooks. Tr. 227. 

Thus, according to Colby, the cable could not simply fall from the roof but could be dislodged 

only if some event destroyed the entire closed and attached hook.

Yates testified that, in looking at the cable, he thought he saw possible damage. Tr. 143. 

His belief was that coal would strike the cable as it passed underneath. Tr. 143. He did not 

provide details about the scope or location of damage at this stage—i.e., the bottom, side, or top 
3

of the cable. Colby testified that he could not see any damage to the cable at that time. Tr. 203. 

Thus, neither Yates nor Colby identified specific damage to the cable at that point. Tr. 171, 203,

217. Yates had the cable de-energized and locked-and-tagged out of service so that he could take 

it down to examine it hand-over-hand.

Yates and Colby varied somewhat on their estimate of the height of the entry. However, 

they agreed its removal required a team effort in which they reached above their heads, and 

Colby used a walking stick to grasp the cable to remove it from the hooks. Yates also said, “it was 

pretty hard” to get the hooks “out of those plates,” which enhanced the difficulty in removing the cable. 

Tr. 174-175. Colby explained that the purpose of the height of the cable was to allow materials to 

pass under the cable freely. 

After Yates and Colby took the cable down, Yates proceeded with his hand-over-hand 

inspection. Colby testified that Yates said he felt a “couple [of] bumps,” which he showed to 

Colby. Tr. 204. Colby was standing four to five feet from Yates at the time. Yates did not 

identify the location of these bumps on the cable – top, bottom, or side. He also did not testify to 

the location in relation to the entry– right side, middle, left side, etc.

Colby testified that before Yates showed him any damage at this stage, Yates then picked at the 

area with a screwdriver to clean that area of the cable. Tr. 204. Yates initially denied such action. 

Later, however, he testified that he did carry a screwdriver and did use it to clean out cuts. When 

questioned whether he used it in this instance, Yates replied, “I don’t remember.” Tr. 165. Colby 

further testified that Yates twisted the cable, applying a strong torque. Tr. 219. Yates conceded that he 

twisted the cable. Tr. 173. Yates also stated that he tapped or hit the cable, though he could not 

remember what he used to hit it. Tr. 165. 

Yates testified that he found two cuts in the cable. He described the first cut as threequarters of an inch. He did not take a picture of this cut or describe it, but he did testify that the 

cut did not expose any energized wires. The parties presented no additional evidence regarding 

this cut. 

Yates’s testimony focused on the second cut, three feet from the first cut along the cable. 

Yates described it as one and three-quarters inches long; he did not estimate a width. However, 

he said he could see the white lead and exposed copper. Colby also testified that he could see the 

lead and further testified that he had then agreed with Yates that the opening was a violation. Tr. 

208, 220, 222.

After handling the cable as described above, Yates took pictures of the cut. Sec’y Ex. 13 

(first two photographs). In taking the pictures, Yates used a zoom feature which greatly enlarged 

the depiction of the cut. When asked whether using the zoom feature would distort the 

appearance of the cuts, Yates replied, “I’m sure it would.” Tr. 186. 

Consol’s General Maintenance Foreman Travis Stout testified that ground fault 

protection of 300 milliamps, 25 times more sensitive than the law requires, protected the cable. 

Consequently, if a lead wire were bare or compromised, it would trip the breaker. Tr. 242. In 

short, if the lead were damaged, the electricity would go to ground, and the cable would 
4

immediately de-energize. Stout testified that Yates’ photos showed damage to the outer jacket 

and what might be damage to the inner conductor but that he could not see any damage to a lead. 

Tr. 238. Stout agreed that it would be possible that the electricity might go to ground by striking 

the person holding the cable. Tr. 244

Yates issued a section 104(a) citation citing moderate negligence and a significant and 

substantial violation. Regarding negligence, he opined that Consol should have found the cut. 

As the basis for the S&S designation, Yates believed the cable could be easily knocked off the 

locked hooks and fall to the floor. He assumed miners then would grasp an energized cable to 

reattach it to the hooks near the roof. 

II.

The Judge’s Decision

Consol’s argument centered upon Yates’ actions before he identified a violative cut. 

Consol argued there was not substantial evidence of the status of the cable before Yates’ action 

picking, hitting, and twisting. In turn, according to Consol, without such evidence, there could 

not be substantial evidence of a violation, negligence, or an S&S violation because Yates’

actions may have created the condition he cited.

The Judge found that:

This Court further recognizes that Yates’ vigorous 

manipulations may have embellished the cable’s opening. (see

Colby’s comments regarding such at R-D). However, this Court 

does not find that Yates’ examination techniques, however 

unorthodox or embellishing, created the cited cable’s inner damage. 

The undersigned has practiced law for over 40 years and is 

not naive regarding the regrettable truth that witnesses sometimes 

lie on the stand. This Court further understands that Yates’ 

personality and zealotry have raised antipathy and suspicion on the 

part of the Respondent. However, having considered all the 

evidence presented by the Secretary and Respondent, in toto this 

Court ultimately rejects Respondent’s arguments, express or 

implied, that Yates had deliberately or recklessly damaged the 

cable so as to have self-created the violation and then had given 

perjured testimony in support of such.

41 FMSHRC at 818-19 (footnote omitted).

The Judge, therefore, concluded that the Secretary demonstrated that Consol violated the 

safety standard and was moderately negligent. He affirmed the S&S designation concluding that 

there was a reasonable likelihood of a miner grasping an inadequately insulated power conductor 

knocked from a hook and receiving a serious or fatal injury. 
5

III.

Disposition

A. Substantial Evidence Supports the Judge’s Finding of a Violation. 

The record evidence supports the Judge’s determination that Consol violated section 

75.517.

3

 The Judge credited Yates’ testimony that he observed possible damage to the cable 

when hanging in the entry, performed a hand-over-hand inspection, and identified two cuts. 

Tr. 143-45, 166-68; 41 FMSHRC at 819.

Colby did not get a close look at the cable until after Yates’ manipulations. After those 

manipulations, he observed damage to the outer jacket and the inner conductor; he acknowledged 

that the cable did not meet the requirements of the standard. Tr. 208, 217-18, 222, R. Ex. D. 

General Maintenance Foreman Travis Stout agreed that the photograph in the record depicted 

damage to the outer jacket and perhaps showed the inner conductor. Tr. 238; Sec’y Ex. 13.

On review, Consol argues that it should not be held liable for the violation, because the 

inspector engaged in a series of manipulations on the cable, such as hitting it, picking at it with a 

screwdriver, and vigorously manipulating it. The Judge determined that Yates’ manipulations 

embellished damage to the cable but did not create damage.4 41 FMSHRC 818-19. The record 

is sufficient to sustain the Judge’s finding of cuts in the cable so that it was not fully protected 

when Yates conducted his initial hand-over-hand inspection. Accordingly, we affirm the finding 

of a violation. 

B. Substantial Evidence Supports the Judge’s Negligence Determination. 

The Judge found that the operator knew or should have known of the violative condition 

and affirmed the citation’s moderate negligence designation. 41 FMSHRC at 823. We conclude 

that the record supports a determination of moderate negligence. 

As noted in the Judge’s decision, Yates had concerns that the cable could be damaged 

from coal passing beneath it. 41 FMSHRC at 815-17. That caused him to take it down for a 

closer look and conduct a hand-over-hand inspection, which ultimately disclosed damage on the 

3

 When reviewing a Judge’s factual determinations, the Commission is bound by the 

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

“Substantial evidence” means “‘such relevant evidence as a reasonable mind might accept as 

adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

4 Commissioner Althen notes that there is an important difference between creating a 

violation and embellishing a violation thereby worsening the condition of a cited area making it 

amenable to an S&S finding. Based upon Yates’ established embellishments of the violation and 

the absence of evidence of the condition of a cut before the embellishment, Commissioner 

Althen finds substantial evidence does not support the Judge’s S&S finding based upon the 

condition of the cable after Yates picked at, hit, and twisted the cable. 
6

outer covering. We do not find any basis to reverse the Judge's determination that Consol's 

failure to detect the problem and take corrective action before Yates’ identification constitutes 

moderate negligence.

C. Substantial Evidence Does Not Support the Judge’s Significant and Substantial 

Designation. 

A violation is deemed to be S&S if, based on the particular facts surrounding the 

violation, there is a reasonable likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. See Cement Div., National Gypsum Co., 3 FMSHRC 822, 

825 (Apr. 1981). The Commission has refined the standard into four steps:

In order to establish that a violation of a mandatory safety standard 

is significant and substantial, the Secretary of Labor 

under National Gypsum must prove: (1) the underlying violation of 

a mandatory safety standard; (2) the violation was reasonably 

likely to cause the occurrence of the discrete safety hazard against 

which the standard is directed; (3) the occurrence of that hazard 

would be reasonably likely to cause an injury; and (4) there would 

be a reasonable likelihood that the injury in question would be of a 

reasonably serious nature.

Peabody Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020), citing Newtown Energy, 

Inc., 38 FMSHRC 2033, 2037-38 (Aug. 2016). 

The hazard from a violation of section 75.517 is that it may cause an electrical shock to a 

miner resulting from contact with an inadequately insulated or not fully protected power cable.5 

Thus, the Newtown Energy Step 2 issue is whether the violation was reasonably likely to expose 

a miner to an electrical current. The allegation of an S&S violation fails at this step. 

Yates identified one reason for issuing the citation as S&S regarding the cable affixed to 

the mine roof. He opined that the cable might get hit or otherwise dislodged from the insulated 

hooks, causing it to fall to the mine floor. He believed miners might then grasp the cable and 

attempt to rehang it above their heads. The relevant testimony by Yates is:

Q. And why did you evaluate it [hazard of touching]as reasonably likely?

A. We take several things into consideration there. Exposure is definitely 

one big part of it, and it's reasonably likely that if a miner -- when a miner 

grabs that cable to hang it back up, after becoming knocked down with the

shuttle car or a ram car, or scoop, that where it was at in that location, it's 

5 Colby testified that Yates said he found a “couple bumps” when doing the hand-overhand inspection. Tr. 204. A finding of mere “bumps” would not support the existence of a 

hazard. However, from the testimony, cuts did exist. As set forth above, we affirm the Judge’s 

decision that the cuts constituted a violation.
7

reasonably likely that they would grab it in that area and become

seriously injured or fatal.

Tr. 150 (emphasis added).

The Judge accepted this basis for finding a likelihood that a miner would come into 

contact with the damaged portion of the cable. 41 FMSHRC at 820. The difficulty with that 

reasoning is that there is no evidence that the cable could be easily knocked to the floor. To the 

contrary, the evidence demonstrates that it would be very unlikely for the cable to be dislodged 

unintentionally. 

Yates stated that he believed the cable could be knocked down because he had seen 

cables knocked off J-hooks before. Tr. 150. However, he also testified that it was “pretty hard” 

to take down this particular cable, requiring the efforts of both Yates and Colby. Tr. 174-75. 

More importantly, Colby testified that the cable at issue was held in place by cable hooks 

with locking mechanisms, not open J-hooks.6 Tr. 226-30. Yates’ own photographs of the 

subject cable in a nearby area support the locked attachment. 7 Sec’y Ex. 13 (third and fourth 

photographs). These photographs show a cable locked in place with a closed loop, rather than an 

open J-hook. The third photograph provides a useful comparison between the two types of 

hooks discussed: a circled J-hook can be found at the edge of the picture, while the photographed 

cable is hung on a nearby locked hook. This locked hook is completely closed and attached to 

the rib of the entry. Colby testified that for a cable secured in this fashion to fall to the floor, 

“you would have to destroy [the] hooks.” Tr. 226-27. The Secretary presented no evidence, 

through Yates’ testimony or otherwise, to suggest any likelihood of the cable being dislodged 

from locked cable hooks or of such hooks being destroyed. 

We review a Judge’s factual determinations under the substantial evidence test. 30 

U.S.C. § 823(d)(2)(A)(ii)(I). A determination as to the substantiality of evidence supporting a 

challenged finding “must take into account whatever in the record fairly detracts from its 

weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (quoted in Midwest 

Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997). Here, the weight of testimony and exhibits 

does not show a likelihood of the cable being knocked to the floor by passing equipment, thus 

exposing miners to the theorized hazard of electric shock when attempting to replace the 

dislodged cable. Given the absence of evidence supporting Yates’ theory and the weight of 

6

 Colby does at one point state that the cable was hung from J-hooks (Tr. 202), however 

he explained that this was a misstatement (Tr. 228-30) and otherwise refers to them as cable 

hooks or insulated hooks. Colby notes that the cable at issue could not even fit inside a J-hook, 

as shown by Yates’ photographs. Tr. 228-30; Sec’y Ex. 13 (third photograph). 

7

 There is no testimony to suggest that the photographed portion of the cable was unusual 

with respect to the type of hooks used. Yates introduced these photographs in the context of 

discussing the cited damage. Tr. 147-48. Presumably, they would not have been introduced as 

evidence if they could not properly be considered relevant and comparable to the portion of the 

cable at issue. 
8

evidence that detracts from it, we find that substantial evidence does not support the Judge’s 

S&S determination under Yates’ theory of the hazard. 

The Judge’s decision also suggests two other possible sources of exposure to the hazard. 

First, the Judge noted that a miner “could” reach overhead and grasp the cable. 41 FMSHRC at 

821. However, there is no testimony as to why (or whether) a miner would be likely to do so. 

The Judge also noted that miners “might” be exposed to the hazard while handling the energized 

cable during feeder moves. Id. at 822. The testimony regarding feeder moves is extremely brief. 

See Tr. 161-62, 245. For example, the Secretary provided no information as to when the cable is 

energized and de-energized during this process or how miners would handle the cables, factors 

which affect likelihood of exposure to the shock hazard. As the Judge’s own language indicates 

(“could” and “might”), the Secretary failed to present substantial evidence to support an S&S 

determination under either of these theories. 

For the above reasons, substantial evidence does not support a likelihood of miners 

coming into contact with the cable (and thus being exposed to electric shock) under any of the 

theories presented above. The determination is reversed and vacated. 8

D. The Penalty Assessment is Reduced to a Penalty of $1,000. 

MSHA applied its penalty point system to the violation and assessed a penalty of $2,487. 

The Judge accepted the MSHA assessed penalty and imposed a penalty of $2,487. A significant 

portion of the penalty assessed by MSHA resulted from the gravity finding accompanying the

S&S designation – a reasonable likelihood of the hazard occurring. The Judge's assessment, 

likewise, turned substantially on the gravity designation. 41 FMSHRC at 823. 

The Commission considers six factors in assessing monetary penalties, namely: the 

operator’s history of previous violations, the appropriateness of the penalty to the size of the 

operator, whether the operator was negligent, the effect on the operator’s ability to continue in 

business, the gravity of the violation, and efforts toward good faith compliance. 30 U.S.C. § 

820(i). Our decision vacates the S&S designation and, effectively, finds it unlikely that the 

hazard upon which the inspector based the S&S designation could occur. Thus, the gravity of 

the violation is reduced. The Judge’s findings concerning the other factors remain unchanged. 

See 41 FMSHRC at 823-24. 

Given the relatively small penalty assessed by the Judge and in the interest of judicial 

economy, we deem it appropriate to conserve resources and complete this proceeding at this 

juncture by setting a penalty directly. See, e.g., Spartan Mining Co., 30 FMSHRC 699, 724 

(Aug. 2008); Capitol Cement Corp., 21 FMSHRC 883, 896 (Aug. 1999). Taking our findings of 

moderate negligence and the unlikeliness of exposure to electrical current into account, we assess 

a final penalty of $1,000.

8 Because we find the absence of a likelihood of the occurrence of the hazard, we do not 

need to discuss the operator's argument regarding the issue of redundant safety measures.
9

IV.

Conclusion

Based upon the preceding analyses, the violation and finding of moderate negligence is 

affirmed. The significant and substantial designation is reversed and vacated. Finally, the 

Commission assesses a penalty of $1,000.

_________________________________

Marco M. Rajkovich, Jr., Commissioner
10

Commissioner Althen, concurring,

I join my colleague, Commissioner Rajkovich without qualification to form a majority 

decision that substantial evidence does not support a finding that the cable was reasonably likely 

to result in a reasonably serious injury to a miner. I also find that a penalty assessment of $1,000 

against Consol Pennsylvania Coal Company, LLC is appropriate. Commissioner Rajkovich 

clearly explains the error regarding the absence of any reasonable likelihood of a miner touching 

a live wire. I write separately only to explain an additional rationale as to why the Judge erred in 

finding the violation to be significant and substantial (“S&S”). 

Commissioner Rajkovich explains the undisputed elements of a significant and 

substantial violation. Thus, there is no need to recite those elements here. Indeed, the S&S 

standard is not an issue in this case. 1 Moreover, we need not discuss the established S&S 

standard because this case should turn on the Inspector’s mishandling of the cable before 

examining the interior of the cable.

I would reverse the S&S finding because the Judge accepted deeply flawed and 

mishandled evidence as a basis for his decision. The Judge found the actions by Bryan Yates, an 

inspector with the Department of Labor’s Mine Safety and Health Administration (“MSHA”),

wrongful and that such actions embellished the damage. Nonetheless, he discounted the 

inspector’s action. That was error. Having found the inspector’s actions improper and affecting 

the evidence and his testimony overstated, the Judge should have dismissed the S&S claim. The 

inspector’s interactions with the cable before finding a tiny area of exposed wire in the interior 

irremediably tainted the evidence. Accordingly, I would find the inspector’s inspection 

technique in this specific case prevents a finding of an S&S violation. 2 

1 Chair Traynor’s errant discourse on the S&S test is odd. The proper standard for an 

S&S violation is not at issue in this case. Commissioner Rajkovich identifies the standard that 

has been applied for forty years. Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 

(Apr. 1981). The core issue in the accepted standard is whether the Secretary preponderates in 

proving a reasonable likelihood of a reasonably serious injury due to a hazard caused by the 

violation. The Secretary does not challenge that standard here. My additional objection does not 

involve the S&S standard but rather turns on the inspector’s inability to provide any meaningful 

testimony regarding the status of interior of the cable prior to his admitted mishandling of the 

cable. That failure vitiates the testimony of the condition of the inner area of the cable. No one 

can know whether any insulation was broken before the inspector’s picking at the cut, hitting it, 

and severely twisting it. 

2

I agree with the finding of a violation because there apparently was a small cut in the 

cable that had not been addressed. The Commission has not opined and most likely would find it 

impossible to opine on a specific degree of “damage” necessary for a cable to fall within the 

scope of 30 C.F.R. § 75.517. Because of the environment in underground mining and the 

thickness of cable jackets, it is certain that cables incur many nicks, scratches, bruises, or bumps 

that do not compromise the adequacy of insulation or protection. This case does not provide 

sufficient evidence in depth, specificity, or expertise to permit a definitive ruling on the quantum 
11

The Secretary must prove the S&S elements of a violation by a preponderance of the 

evidence. Here, that determination depends upon whether substantial evidence supports a 

finding that the cable was S&S when found by Yates—that is before he admittedly inflicted 

additional damage to the cable.3

Yates did not identify any meaningful damage to the cable before he took several actions 

that, as the Judge found, certainly affected the condition of the cable. The evidence is that he 

first saw a small slit in the cable. Testimony regarding Yates’ actions in probing, striking, and 

twisting the cable undercut a finding of substantial evidence because the testimony compels a 

finding that Yates’ actions likely, or at least may well have, created the hazard of exposure to a 

live wire.

The Judge essentially found the inspector altered (“embellished”) the adverse condition of 

the cable. 41 FMSHRC 803, 818 (Dec. 2019) (ALJ). In turn, Yates based the S&S designation 

upon observations after those embellishments. 

Yates testified his hand-over-hand examination disclosed two bumps on the surface of the 

jacket. He found or at least testified to nothing more at that point. Daniel Colby, Consol’s safety 

representative, testified that he did not see any damage at that point. Thus, the inspector did not 

testify to the exposure of any inner level of the cable beyond a surface bump. Colby’s notes 

refer to a “nick” in the cable. Tr. 216. Certainly, a “nick” does not portend access to a live wire 

underneath the thick jacket.

Such testimony does not constitute substantial evidence that there was damage to the 

inside of the cable, creating a hazard that a miner might contact a live wire at that point. Yates 

did not say he saw any damage to the interior of the cable while it was hanging or even after his 

hand-over-hand inspection. Tr. 171. Had he not taken the destructive actions but simply found a 

violation and required standard taping, there would not be any S&S question. However, Yates 

did not stop with his visual and manual cable inspection. He took three distinct actions 

intentionally designed to “open” the cable.

First, Yates used a screwdriver assertively to affect the bump on the cable. Colby 

testified that he saw Yates use the screwdriver to “dig” into the bump. Tr. 225. He characterized 

Yates’ conduct with the screwdriver to “pry” at the bump. Id. Yates initially denied such action. 

Later, however, he testified that he did carry a screwdriver and did use it most of the time. When 

of damage that must exist for the insulation to be inadequate on a cable or for the cable to be not 

fully protected for purposes of section 75.517. I accept Commissioner Rajkovich’s reasoning on 

this issue. 

3

I do not suggest that the inspector intended to create an S&S violation. Indisputably, 

however, his actions were intended to affect the condition of the cable. It is this effect of the 

picking, hitting, and twisting upon the inside of the cable that is important.
12

questioned whether he used it in this instance, Yates replied, “I don’t remember.” Tr. 165.4

Thus, there is positive testimony that Yates dug into the cable jacket with a screwdriver, and 

Yates testified to a lack of memory but that he does normally use a screwdriver.5

Second, Yates affirmatively testified that he struck the bump with his screwdriver or 

walking stick. Tr. 165. Certainly, the purpose was to affect the area of the bump. Yates testified 

he was “cleaning” it. However, obviously, hitting a bump or cut on a cable jacket with a stick 

will tend to crack it or widen any existing crack and cause additional damage.

Finally, Yates twisted the cable and applied a strong torque to the bump area. Yates 

initially denied twisting the cable; however, during cross-examination, he recanted and conceded 

he twisted the cable so he could open it. Tr. 173.

Colby testified that he had never seen an inspector engage in such conduct in his time as 

a safety representative. Colby’s testimony was:

Q. When you say you have never seen an inspector do that

before, what do you mean by that?

A. I never saw one that actually rotated the cable and started

really getting into it and torquing it to try to inspect it. I never

saw that.

4 Yates testified:

[M]ost of the time, . . . I peck it with a small screwdriver. So,

when the cable is damaged, I can move the outer jacket out to

see if the inner conductors are exposed. That’s why they keep

going to my screwdriver because I do pack a small screwdriver.

Tr. 165.

5 Chair Traynor fails to appreciate the difference between credibility issues and facts on 

the record. Therefore, he asserts the type of hook from which the cable was hanging is a matter 

for credibility even though indisputable evidence in the record shows it was hanging from a 

locked hook attached to the sidewall. Sec’y Ex. 13 (third and fourth photographs); Tr. 148-49. 

He asserts that the majority does not recognize the cable was hanging over an entry. Of course, 

he is incorrect. Commissioner Rajkovich’s opinion explains the position of the cable and that the 

inspector and Colby had to struggle with it above their heads (even using a walking stick) to 

unhook it from the locked hooks. Further, evidence showed that the cable was lengthy. The 

Secretary did not introduce any evidence to demonstrate any likelihood of a miner touching a 

cable in a place far removed from the feeder in moving the cable. We do not even know whether 

the nick was on the top, bottom, or side of the cable. The evidence establishes that the cable 

could not be knocked from the locked, secured hooks without a virtually catastrophic contact. 

The Secretary did not provide any evidence that a miner would have any reason, advertently or 

inadvertently, to grasp the cable at any location even in the vicinity of where the inspector found 

the nick during a move of the cable to meet the test of S&S. 
13

Q. What about with the screwdriver and digging into the hole,

did you ever see that?

A. Never.

Tr. 205.

The Judge did not discredit Colby’s testimony. Rather, he found Yates manipulative 

actions “unorthodox or embellishing.” 41 FMSHRC at 819. Strangely, the Judge faulted Consol 

for not providing testimony about proper inspection techniques. Id. Thus, the Judge affirmed an 

S&S designation even while acknowledging the Inspector embellished or exacerbated the 

condition to an unknown extent through prying, striking, and physically manipulating the cable 

and requiring the operator to explain proper investigation techniques. He placed a duty on the 

operator to explain the obvious: picking at, hitting, and twisting a cable is unsuitable and may 

cause further damage.6 

Finally, Yates’ intended for his photographs to magnify the image of damage. A small 

crack is magnified many times over and, even then, does not show any metal. Whatever damage 

is discernible to an inner cable clearly may have resulted from opening a slit and then vigorously 

twisting the cable. 7

In summary, there is no evidence of any hazard created by the cable condition before 

Yates’ actions. The Judge made no effort to determine the extent to which Yates’ activities, 

which the Judge found exacerbating or embellishing, affected the condition of the cable. Thus, 

6

In faulting Consol for not having provided evidence of proper investigation techniques 

the Judge stated, “Respondent presented little or no evidence as to what should be the proper or

preferred techniques for examining and photographing damaged cables.” 41 FMSHRC at 819. 

This analysis turns the Secretary’s burden of proof on its head. It is MSHA’s obligation to act in 

a demonstrably proper way. It is not incumbent upon a respondent to “prove” that proper 

inspection techniques do not include prying into a cable with a screwdriver, striking it with a 

walking stick or screwdriver, and vigorously twisting it thereby causing or opening any cut that 

may exist or may have been created by a probing screwdriver. One need not be an expert to 

understand that an intrusion into or initial widening of a slit would make the cable amenable to 

further widening by additional interaction with the cable such as a strong twist. Colby did not 

see any damage until after the manipulations. If the operator’s and/or the miners’ safety 

representatives are present, these representatives must be given an opportunity to see the alleged 

violation before an MSHA Inspector takes potentially damaging and prejudicial actions. 

7 The Secretary introduced two pictures Inspector Yates took of the cable after his 

manipulations. In taking the pictures, Yates he used a zoom setting knowing that it could distort 

the image to make the cut appear larger. Tr. 186. Pictures magnifying a scene naturally may 

have a dramatic impact upon the perception of a viewer. Magnification may cause a small cut to 

appear as a gash with the predictable psychological results. The extent of magnification in 

Yates’ pictures may be seen by comparing the opening to a small “0” on adjacent black tape. As 

a result, the photographs depict the cut as significantly lengthier and wider than the reality. 
14

the record lacks substantial evidence regarding the hazard of an exposed live wire existing before 

Yates’ manipulations that had an indeterminate effect upon the cable. 

I must and do tread carefully when a violation alleges the danger of an electrical shock. 

However, in this case, we have: (1) no evidence of the condition of the cable before Yates’

intervention, (2) multiple severe manipulations of the cable, (3) the use of locked, insulated cable 

hooks virtually immune from accidental dislodgement, and (4) the absence of evidence of actions 

during a move affecting the condition of the cable. Substantial evidence does not support a 

likelihood that the condition of the cable before the Inspector’s mishandling caused any hazard 

of touching a live wire or an adverse effect upon any miner.

__________________________

William I. Althen, Commissioner
15

Chair Traynor concurring in result, in part, and dissenting,

I concur, in result, with the majority’s decision to affirm the Judge’s finding of a 

violation and a moderate level of negligence. I cannot, however, join their erroneous decision to 

vacate the Judge’s decision that the violation below was “significant and substantial” (“S&S”) –

that is, of a nature that could significantly and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard. 30 U.S.C. § 814(d)(1). Unfortunately, my dissent 

will illustrate that my fellow Commissioners have taken an approach in this case that departs 

from basic norms of honest and principled appellate review. 

The Judge concluded that the Secretary demonstrated it was reasonably likely that a 

miner would contact an inadequately insulated cable that provided power to a trammable coal 

feeder. 41 FMSHRC 803, 820 (Dec. 2019) (ALJ). He relied upon evidence that, considered

cumulatively, demonstrates that the feeder’s trailing cable was accessible and would be contacted 

by miners during continued normal mining operations. Specifically, the Judge relied on: (1) the 

position of the cable at the time of inspection – hanging off a hook on the ceiling and into the 

entry, (2) the potential for the cable to be knocked to the floor by a passing vehicle, (3) the 

frequency with which miners traveled through the entry, and (3) undisputed evidence of the 

miners’ routine handling of the cable during moves of the trammable feeder. Id. at 820-822. 

Notably, the record below included the uncontroverted testimony of a witness from each party –

the Secretary of Labor’s inspector and the respondent company’s master mechanic – that miners 

regularly handled the damaged cable while it carried 480 volts of electricity necessary to move 

the large machine. 

The majority badly mischaracterizes the Judge’s S&S decision by focusing exclusively 

on the likelihood of miners contacting the damaged cable after it is knocked from the hook by a 

passing vehicle. Slip op. at 4. But undisputed record evidence offered by both parties

establishes that miners handled the energized cable regularly during powered moves of the 

feeder. To reverse the S&S determination, the majority ignores this critical evidence in favor of 

a de novo record, built by discarding credibility determinations without discussion. 

In Part I of my dissent, I identify the majority’s errors with more specificity. In Part II, I 

demonstrate that the Judge’s S&S decision is supported by substantial evidence in the record.1

PART I

A. The Majority Errs in Ignoring the Judge’s Credibility Determinations

Inspector Bryan Yates was joined by Consol safety representative Daniel Colby during 

the inspection of the entry. Each testified as a witness at the hearing and although portions of 

their recollections were consistent, in certain instances their testimony materially differed. The 

Judge ultimately resolved the conflicts by crediting the testimony of Yates over Colby. 41 

FMSHRC at 819 (finding “the inspector’s testimony to be credible and reliable.”); id. at 820 

1

Included within Part II are my thoughts upon the growing confusion in the 

Commission’s S&S caselaw. 
16

(rejecting “many of the Respondent’s suggested finding of fact in favor of those argued by the 

Secretary.”).2 The majority’s fact section does not acknowledge the Judge’s credibility 

determination. Accordingly, they err. See Consol Pennsylvania Coal Co., 43 FMSHRC 145, 

151 (Apr. 2021) (citation omitted) (holding that a Judge’s credibility determination is entitled to 

great weight and may not be overturned lightly.).

Instead, my colleagues inappropriately recite the record evidence de novo. See Donovan 

on behalf of Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (finding that it was 

error for the Commission to “substitute a competing view of the facts for the view the ALJ 

reasonably reached”); see also Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 

1998) (“We see no basis for overturning the judge’s crediting of the first-hand observations of 

[the inspector] over the testimony of Harlan’s safety director.”).

It is well established that the Commission reviews a Judge's credibility determinations 

under an abuse of discretion standard. See Jim Walter Res., Inc., 37 FMSHRC 1868, 1871 (Sept. 

2015). There must be “compelling reasons” to take the “extraordinary step” of reversing a 

Judge's credibility determination. See Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 

1516 (Sept. 1997) (quoting Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (Nov. 1986))

(internal quotations omitted).

In proceedings under the Mine Act, the Judge is the fact finder, empowered to make

credibility determinations to resolve conflicting evidence. See, e.g., Jim Walter Res., Inc., 37 

FMSHRC at 1871; see also Commission Procedural Rule 69(a), 29 C.F.R. § 2700.69(a). We 

have consistently held that:

[The Commission is] not a supervening fact-finding panel and may 

not reverse a Judge's decision merely because evidence in the record 

could have supported a contrary outcome. [ ] If the Judge's decision 

is one a reasonable fact finder could reach based upon the evidence, 

we must accept the Judge's determination even though, were we the 

fact finder, we might have reached a different outcome.

Consolidation Coal Co., 39 FMSHRC 1737, 1743 (Sept. 2017). 

The majority irresponsibly fails to offer even the barest explanation as to why they do not 

apply these well-settled standards requiring our deference to our Judges’ resolution of conflicting 

evidence. In their pursuit of a preferred outcome, they have abandoned their duty to deal 

squarely with the record. Below, I discuss two key facts the Judge found to support his S&S 

determination that were improperly disregarded by the majority. These two examples will 

2 Despite the Judge’s decision to credit the testimony of Yates over Colby in instances 

where their testimonies contradict, Commissioner Althen makes the plainly false statement that 

“the Judge did not discredit Colby’s testimony.” Slip op. at 13. And even though I note this for 

his attention in this dissent, he insists on maintaining this assertion. Commissioners can have a 

wide variety of differing views on questions of law and policy, but quality of the Commission’s 

decisions and the integrity of the Commission as an institution are diminished by deliberately 

dishonest statements. 
17

illustrate how the majority has authored a statement of facts that, remarkably: (1) omits material 

findings of fact and (2) cites testimony that the Judge rejected without even passing reference to 

the standards that direct them to defer to our Judges’ credibility determinations.

1. The cable was suspended from a J-hook.

The Judge found that the cable was suspended from the ceiling of the entry on a J-hook. 

41 FMSHRC at 816 (citing Tr. 150, 153). The Judge specifically relied upon this factual finding 

when he determined that a passing ram car loaded high with coal might knock the cable to the 

floor. Id. at 821 (citing Tr. 152, 221 and Summary of Testimony supra.) 

The majority does not mention that the Judge found that the cable hung from a J-hook. 

Instead, they cite conflicting testimony regarding the subject hook, including Colby’s initial 

testimony that the cable was hanging from a J-hook and his later testimony that it was hanging 

from “cable hooks” or “locked hooks.”3 Slip op. at 2. My colleagues state that:

Colby explained that, due to the way the cable was hung on the 

locked hooks, the only way for the cable to fall to the floor was to 

destroy the insulated and locked hooks. Thus, according to Colby, 

the cable could not simply fall from the roof but could be dislodged 

only if some event destroyed the entire closed and attached hook.

Slip op. at 2.4

Of course, the Judge resolved the conflict in the evidence in favor of the Secretary; the 

Judge credited Yates’ consistent testimony and discredited Colby’s inconsistent testimony. The 

Judge’s resolution of the conflict in favor of Yates was material because it informed his 

subsequent conclusion that the cable could be knocked loose from the J-hook on the ceiling by a 

passing vehicle. 

The majority errs in citing and relying upon Colby’s inconsistent testimony that the Judge 

discredited. 

3 Colby testified that the cable was “hung along what we call insulated hooks, or Jhooks” (Tr. 202), before later testifying that his reference to “insulated hooks” in his notes (R. 

Ex. D) actually referred to a locking hook. Tr. 229-30.

4 My colleagues rely on Colby’s testimony regarding a photograph that was taken in a

different area of the mine, noting that Colby identified that in the photograph of this different 

place the cable hung from a locked hook. Slip op. at 2 (citing Sec’y Ex. 13 (third and fourth 

photographs)). As Commissioner Rajkovich acknowledges “Yates did not take any photographs 

of the cable hanging on the hooks in the cited location. However, he did take two pictures of the 

cable hanging in a different area . . . .” Slip op. at 2 (emphasis added). Photographs of different

hooks in a different location do not contradict the Judge’s decision to credit Inspector Yates’ 

testimony regarding the cited location in the entry. 
18

2. The cable was hanging off its hooks, down into the entry and in the path 

of miners and their vehicles. 

The Judge found that at the time of inspection the cable was hanging into the entry, 

within the grasp of miners working or traveling in the area. 41 FMSRHC at 820-21; Tr. 160, 

188. The Judge credited Yates’ testimony that the cable was easy to reach, hanging

approximately six feet or less from the ground.

5

Instead, the majority states that “Yates and Colby varied somewhat in their estimate in 

the height of the entry. However, they agreed [the cables] removal required a team effort in 

which they reached about their heads.”6 Slip op. at 3. “Colby explained that the purpose of the 

height of the cable was to allow materials to pass under the cable freely.” Id. at 3. 

Of course, it is undisputed that the hook attached to the ceiling was above their heads. 

Instead, the height of the hanging cable was in dispute. The Judge resolved the dispute. He 

credited Yates, finding that the cable was in the path of miners. My colleagues refuse to 

acknowledge this credibility determination.

Presenting the evidentiary record without the context of the Judge’s credibility 

determinations is an underhanded way to silently overturn those determinations. My colleagues 

are attempting to avoid providing the deference commonly afforded to a Judge’s factual findings 

in order to reach their preferred result. See Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 

1541 (Sept. 1992) (A Judge’s decision to credit the testimony of a witness is entitled to great 

weight and may not be overturned lightly.).

5 Specifically, Yates testified “in the area where [the cable] was hanging down, I could 

easily reach up and grab it.” Tr. 160. Yates also testified:

Q: With the cable hanging on the J-hooks, could you easily reach 

the cable? 

A: Where it was down in the entry, yes.

. . .

Q: The area of the cable that you cited, you could physically reach 

that cable? 

A: Yes. 

Q: So it's not a matter of being able to take the cable down or put 

it back up, but you could reach the cable and touch it? 

A: Yes. 

Tr. 188 (emphasis added). 

6 Colby assisted Yates by retrieving the cable because inspectors are not permitted to 

conduct “work” in a mine. Tr. 188-89.
19

B. The Majority Further Errs in Dismissing Uncontroverted Testimony from Both 

Parties’ Witnesses as Insufficient. 

In other instances, in their analysis reversing the Judge, the majority at time dismisses the 

record evidence as somehow insufficient. Specifically, the majority dismisses the parties’ 

witnesses’ agreement that the cable would be contacted by miners during the move of the feeder 

as well as evidence that a miner would move the cable from a vehicle’s path.

1. The trailing cable is energized and handled by miners during feeder 

moves. 

Both Inspector Yates and Consol’s Master Mechanic Travis Stout confirmed that the 

cable is energized and handled by miners during a move. Tr. 161, 244-45. The cable is hung 

upon hooks in the entry between moves. It is taken down again for the next move. It remains 

powered during normal operation of the feeder. The Judge concluded that these moves 

contributed to the likelihood of electrocution. 

However, the majority finds that this conclusion lacks the support of substantial evidence 

because they erroneously conclude the Secretary provided no information as to when the cable is 

energized or de-energized. The majority is incorrect; both Inspector Yates and the operator’s 

witness master mechanic Travis Stout confirmed that the cable is energized and handled by 

miners regularly during a powered move.

Q. So when they go to do a power move and move this feeder, will 

men be handling this cable?

[Yates] They can, yes.

Q. Would they be handling this cable with power on?

[Yates] You would have to, yes.

Tr. 161. No witness for the operator testified to the contrary. Stout confirmed Inspector Yates’ 

testimony:

Q. What is the feeder cable -- how does the feeder cable exist in an 

underground coal mine?

...

[Scott] Feeder cable, it's highly insulated hangers all the way to the 

machine. Any slack would be put on top of the machine, but the 

only time it's really handled is during a power move, which in this 

case, it would probably be once a week or once every two weeks.

Q. And what voltage is this cable?

[Scott] It's 480 volts.
20

Tr. 245. Of course, the fact that no testimony was elicited by the Secretary’s counsel as to when, 

if ever, the cable is de-energized does not detract from the parties’ witnesses’ agreement that the

cable is powered and handled during moves. What more than consistent testimony from both 

parties would the Commissioners in the majority need the Secretary to produce to satisfy their 

apparently arbitrary application of the substantial evidence rule?

The majority also states that the Secretary provided no information as to how miners 

would handle the cable. The majority is again incorrect. Yates testified that miners grasp the 

feeder cable as it trails behind the feeder. Tr. 161-62. Colby conceded that miners do not wear 

electrocution-protective gloves. Tr. 209-210. Yates also testified that miners are typically 

“hard[] on” cables during machine moves and will “bow” the trailing cable as it moves. Tr. 162. 

The cable is 480 volts and the surrounding area is wet. Tr. 151-53. Electricity can track through 

a pinhole. Tr. 191. Accordingly, there is ample evidence as to how miners handle the cable 

during moves. 

Finally, the majority states that the Judge’s use of the term “might” in finding that the 

move was an occasion when the miners “might be exposed to electrocution” indicates that the 

Judge was conveying that the probability of electrocution was below the threshold of “reasonable 

likelihood.” Slip op. at 8 (emphasis added). The majority cites no precedent in support of this 

novel theory. Rather, their overly semantic focus is inconsistent with the Commission’s 

guidance in Newtown Energy, Inc., 38 FMSHRC 2033, 2039 (Aug. 2016) (“We recognize that 

‘reasonable likelihood’ is not an exact standard. Obviously, a Judge cannot calculate the degree 

of risk of the occurrence of the hazard in precise percentage terms.”). Here, obviously, the 

Judge’s decision to cite the feeder move as one of the four factors in support of his Step 2 

conclusion indicates that the Judge believed that the evidence was sufficient.

2. The low height of the cable increased the potential for contact. 

As previously stated, the Judge found that the cable was hanging low and into the entry at 

the time of inspection. Yates observed the energized feeder cable hanging down into the entry, 

six feet from the floor; he could easily reach up and touch it. Tr. 150-52, 160, 188. 

The majority states that the Judge’s conclusion that it was likely that miners would come 

into contact with the low-hanging cable is not supported by substantial evidence. Slip op. at 7-8. 

More specifically, the majority states that there is no testimony regarding why a miner would 

touch the cable when it was hanging down into the entry. Slip op. at 7. 

Again, the majority mischaracterizes the record. Inspector Yates testified that cars were 

loaded high with coal and he was concerned that the coal was coming into contact with the cable. 

Tr. 152. Miners travel the entry in vehicles. Inspector Yates expected that a miner would move 

the cable to prevent it from becoming further damaged. Tr. 153-54.
21

C. My Colleagues Err by Ignoring the Mine Act’s Penalty Criteria. 

Section 110(i) of the Mine Act provides that:

The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the 

Commission shall consider the operator’s history of previous 

violations, the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in

business, the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation

30 U.S.C. § 820(i). Under our case law and procedural rules, if the Commission reverses a 

Judge’s decision affirming a S&S designation, the Commission should remand the case to the 

Judge to reassess a new civil penalty. See, e.g., Peabody Midwest Mining, 42 FMSHRC 379, 

389 (June 2020) (“vacat[ing] the S&S designation for the violation . . . [and] remand[ing] the 

case so that the Judge may reassess the penalty . . . .”); 29 C.F.R. § 2700.30(a) (“In assessing a 

penalty the Judge shall determine the amount of penalty in accordance with the six statutory 

criteria contained in section 110(i) of the Act, 30 U.S.C. 820(i), and incorporate such 

determination in a written decision. The decision shall contain findings of fact and conclusions 

of law on each of the statutory criteria and an order requiring that the penalty be paid.”) 

(emphasis added). 

My colleagues ignore section 110(i) of the Mine Act, Commission case law and our 

Procedural Rules to independently assesses a penalty of $1,000 without fully considering the 

statutory penalty criteria and in disregard for the appropriate division of roles between us –

termed political appointees on the Commission tasked with reviewing the Judge’s application of 

the section 110(i) factors for errors of fact or law – and our long-tenured Judges tasked with 

applying the factors to assess a penalty. Unfortunately, my colleagues do not respect this 

boundary between the trial and appellate function, even though they did acknowledge its 

existence as recently as our decision in Solar Sources Mining, LLC, 43 FMSHRC 367, 372 (Aug. 

2021). 

In Solar Sources, I noted in dissent that my fellow Commissioners took the unusual step 

of re-assessing the penalty themselves in their majority decision rather than remanding to the 

Judge with instructions for him to reassess the penalty. My colleagues, in response, 

acknowledged that the “Commission typically leaves such determinations in the hands of our 

Judges” but explained the unique circumstances of that case compelled their departure from 

ordinary practice. Id. Not persuaded, I warned that their decision threatened to “usurp the 

discretionary role of our Judges in the assessment process, arrogating to themselves the power to 

set a penalty.” Id. at 381. Here, they attempt to do it again – usurping the Judge's penalty setting 

role – this time, without even a fig leaf claim of unique circumstances. If they are going to 

transgress long-standing boundaries between our trial and appellate functions, they should at 

least do so squarely, transparently and with reasoned explanation. See NBCUniversal Media, 
22

LLC v. N.L.R.B., 815 F.3d 821, 823 (D.C. Cir. 2016) (“When an agency's decision lacks 

adequate justification because . . . it fails to offer a coherent explanation of agency precedent, 

the judgment under review is wanting for lack of reasoned decision-making.”)

PART II

A. The Commission’s “Significant and Substantial” Standard

A violation is S&S (30 U.S.C. § 814(b)), if based on the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to by the violation will 

result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the 

Commission further explained:

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard -- that is, a measure of 

danger to safety -- contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies

criteria).

The Commission’s Mathies standard had been used regularly in both Commission and 

federal court proceedings in its original form until it was altered by the Commission in Newtown, 

38 FMSHRC at 2037-38. 

In Newtown, the Commission added an additional burden to Step 2, requiring that instead 

of merely proving that the violation “contributed” to a hazard, the Secretary must prove a 

“reasonable likelihood of the occurrence of the hazard.” Id. The Commission’s Newtown

decision was a reaction to the Fourth Circuit’s decision in Knox Creek Coal Corp. v. Sec’y of 

Labor, 811 F3d 148, 162 (4th Cir. 2016), in which the court stated that “for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat likely to result in harm.” 

Accordingly, in Newtown the Commission raised the Secretary’s Step 2 burden of proof. 

In Peabody Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020)7a different 

Commission majority again changed the S&S standard. According to Peabody under Step 2, the 

Secretary must now prove that “the violation was reasonably likely to cause the occurrence” of 

the hazard. Compared to the original requirement in Mathies that the Secretary must merely 

7 This decision is not yet final, as the operator’s appeal of the Judge’s remand decision is 

currently pending before the Commission. 
23

demonstrate that the violation “contributed” to the hazard, the new Peabody standard represents 

a major change in the law. The Secretary now faces a much higher burden of proof to 

demonstrate that a violation is S&S. 8 

Additionally, in Peabody, the Commission for the first time added the term “cause” to 

step 3 of the test as well. The Commission’s shifting interpretations of the term “significant and 

substantial” in section 104(d)(1) of the Mine Act demonstrates an institutional confusion at the 

Commission. Notably, my colleagues write separately on S&S, without a consensus opinion.

The institutional confusion is the result of statutory ambiguity. The Secretary of Labor would be 

well-served to aid the Commission in resolving this confusion by proffering an authoritative 

interpretation of section 104(d)(1) of the Mine Act.9 

B. The Judge’s Decision to Affirm the “Significant and Substantial” Designation is 

Supported by Substantial Evidence in the Record.10 

When reviewing a Judge’s decision, the Commission is bound by the terms of the Mine 

Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial 

evidence” means “such relevant evidence as a reasonable mind might accept as adequate to 

support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

(Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The “substantial evidence” standard is highly deferential. See Cumberland Coal Res., 

717 F.3d 1020, 1028 (D.C. Cir. 2013) (“we may not reject reasonable findings and conclusions, 

even if we would have weighed the evidence differently.”) (citing Sec'y of Labor v. Keystone 

Coal Mining Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998)); Consol Pennsylvania, 43 FMSHRC 

at 155 (citations omitted). Under the substantial evidence test, the “possibility of drawing two 

inconsistent conclusions from the evidence does not prevent an administrative agency's finding 

from being supported by substantial evidence.” Sec'y on behalf of Wamsley v. Mutual Min., Inc., 

80 F.3d 110, 113 (4th Cir. 1996).

8

 Turning back to the case at hand, the majority appears to be confused as to how to 

analyze the concept of a “hazard” in Step 2 as compared to the likelihood of injury in Step 3. 

For example, in their analysis section, the majority conflates Step 2 and Step 3 and finds that the 

Secretary failed to fulfill his Step 2 burden because a miner is not reasonably likely to be injured. 

Slip op. at 6 (“The hazard from a violation of section 75.517 is that it may cause an electrical 

shock to a miner resulting from contact with an inadequately insulated or not fully protected 

power cable. Thus, the Newtown Energy Step 2 issue is whether the violation was reasonably 

likely to expose a miner to an electrical current). 

9 Of course, among the options available to the Secretary is to simply ask the 

Commission to defer to an interpretation of section 104(d)(1) which resembles the original 

Mathies test.

10

 The substantial evidence analysis is at times redundant of the discussion of the errors 

within my colleagues’ joint fact section, but I present it again in the context of a full affirmative 

case in support of the Judge’s decision. 
24

The Judge found that the Secretary demonstrated it was reasonably likely that a miner 

would contact an inadequately insulated power conductor. 41 FMSHRC at 820-21 (undertaking 

a “step 2” analysis). The cable was accessible to miners because: (1) it was hanging off the 

hooks into the entry, (2) it could be knocked to the floor, (3) it is handled by miners during the 

feeder move and (4) because the area is frequently traveled.11 41 FMSHRC at 821-22. He also 

concluded that the occurrence of an electrical shock from the feeder cable was reasonably likely 

to result in a serious or fatal injury. Id. at 822 (undertaking a “step 3 & 4” analysis). The 

Judge’s S&S findings and conclusions are supported by the record, eminently reasonable, and 

thus must be affirmed by the Commission. Keystone Coal, 151 F.3d at 1104 (The “sensibly 

deferential standard of review does not allow us to reverse reasonable findings and conclusions, 

even if we would have weighed the evidence differently.”).

 

As previously stated, Yates observed the energized feeder cable hanging down into the 

entry, six feet from the floor; he could easily reach up and touch it.12 Tr. 150-52; 160, 188. 

Yates believed that the cable had been hit by a high load of coal, which is regularly hauled 

through the entry. Tr. 143, 152, 172, 177. Miners frequently travel the entry on foot and in 

vehicles. Tr. 152-157. Yates was concerned that the low hanging cable would be knocked off 

the J-hooks from which it hung and a miner would attempt to rehang it. Tr. 150-151, 188. There 

were two cuts on the cable’s outer jacket, one of which was large and deep enough to damage the 

inner conductor.

The trailing cable for the trammable feeder was routinely taken down from the J-hooks 

and handled by miners during equipment moves. Miners grasp the feeder cable as it trails behind 

the feeder. Tr. 161. The cable is 480 volts and the surrounding area is wet. Tr. 151-53, 161. 

Yates testified that electricity can track through a pinhole.13 Tr. 191.

Citing Yates’ testimony, the Judge found that during continued normal mining operations 

“coal loaded on top of ram cars could contact the hanging energized cable and knock it to the 

floor.” 41 FMSHRC at 821; Tr. 143, 152-53. Whether the cable was “in a hanging position or 

knocked to the floor, [it] was accessible to miners traveling or working in the area.” 41 

FMSHRC at 820; Tr. 150, 155. Furthermore, the Judge concluded that the evidence 

demonstrated that miners would physically handle the energized feeder cable during a powered 

move. 41 FMSHRC at 821-22. Importantly, the Judge found that the damage to the cable was 

“sufficiently extensive so as to have created the hazard of electrocution.”14 Id. at 822. 

11 The Judge considered these factual findings cumulatively when concluding that it was 

reasonably likely that a miner would be exposed to the damaged conductor. 

12 Yates estimated that the roof in the cited area was 7 to 7.5 feet in height. Tr. 160.

13

 Colby conceded that miners do not wear electrocution-protective gloves. Tr. 209-210.

14 The Judge found that safety precautions instituted by the mine such as the sensitive 

ground fault protection are reductant safety features that are excluded from his S&S analysis. 41 

FMSHRC at 821; see also Consolidation Coal Co., 895 F.3d 113, 119 (D.C. Cir. 2018); see Buck 
25

A Judge is well within the bounds of his discretion to credit the opinion of an MSHA 

inspector and affirm a S&S designation. See Consol Pennsylvania, 43 FMSHRC at 151 (citing 

Buck Creek, 52 F.3d at 135 (“the ALJ certainly did not abuse his discretion here in crediting the 

opinion of [the] Inspector.”).15 

CONCLUSION

My colleagues and I affirm the Judge’s finding of a violation involving a moderate level 

of negligence. I would affirm the Judge’s S&S determination as thoroughly supported by 

substantial evidence and am disappointed in the quality of the majority’s decision to do 

otherwise.

 

_

_______________________

Arthur R. Traynor, III, Chair

Creek Coal Co., Inc., v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995); Cumberland Coal Res., LP, 

33 FMSHRC 2357, 2369 (Oct. 2011), aff’d, 717 F.3d 1020, 1029 (D.C. Cir. 2013). 

15

 The refusal to apply the same legal standard in this case as was applied in Consol 

Pennsylvania is arbitrary and capricious. See NBCUniversal Media, LLC, 815 F.3d at 823. 
26

Distribution:

Brian P. Krier, Esq.

The Curtis Center

170 S. Independence Mall West, Suite 630E

Philadelphia, PA 19106

krier.brian@dol.gov

Patrick Dennison, Esq.

Fisher & Phillips LLP

6 PPG Place, Suite 830

Pittsburgh, PA 15219

pdennison@fiserphillips.com

Emily Toler Scott

Senior Trial Attorney

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

scott.emily.t@dol.gov

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Nelson.April@dol.gov

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@dol.gov

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov
27

Administrative Law Judge John Lewis

Federal Mine Safety Health Review Commission 

875 Green Tree Road,

7 Parkway Center, Suite 290

Pittsburgh, PA 15220

jlewis@fmshrc.gov