1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

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

Washington, D.C. 20004

March 30, 2022

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA), : Docket No. PENN 2021-0047

Petitioner, : A.C. No. 36-10045-527805

:

v. :

:

CONSOL PENNSYLVANIA COAL 

COMPANY, LLC,

Respondent.

: Mine: Harvey Mine

:

:

DECISION

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

Philadelphia, Pennsylvania, for Petitioner;

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

for Respondent.

Before: Judge Paez

This docket is before me upon the Petition for the Assessment of Civil Penalty filed by 

the Secretary of Labor (“Secretary”) pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. In dispute is a single section 104(a) citation 

issued to CONSOL Pennsylvania Coal Company, LLC (hereinafter, “CONSOL” or 

“Respondent”).1

To prevail, the Secretary must prove any cited violation “by a preponderance of the 

credible evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 

FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 

2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 

1096, 1106–07 (D.C. Cir. 1998). This burden of proof requires the Secretary to demonstrate that 

“the existence of a fact is more probable than its nonexistence.” RAG Cumberland Res. Corp., 

22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 

F.3d 590 (D.C. Cir. 2001). 

1

In this decision, the hearing transcript, the Secretary’s exhibits, and Respondent’s 

exhibits are abbreviated as “Tr.,” “Ex. GX–#,” and “Ex. R–#,” respectively.
2

I. STATEMENT OF THE CASE

In separate orders, Chief Administrative Law Judge Glynn F. Voisin assigned me both 

Docket No. PENN 2021-0047 on April 14, 2021, and Docket No. PENN 2021-0058 on May 12, 

2021. On August 16, 2021, I consolidated these dockets and set them for hearing. The parties 

settled five of these six violations prior to the hearing, and only Citation No. 9203483 in PENN 

2021-0047 remains.

2

MSHA Inspector Jason Detrick issued Citation No. 9203483 at CONSOL’s Harvey Mine 

on November 17, 2020. The citation alleges CONSOL violated 30 C.F.R. § 75.1722(a) by

failing to guard the area in front of the 5B tailgate belt drive roller. The Secretary designated the 

citation as significant and substantial (“S&S”),

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characterized CONSOL’s degree of negligence 

as low, and determined the likelihood of injury to be reasonably likely to result in lost workdays 

or restricted duty. The Secretary proposed a penalty of $298.00 which CONSOL timely 

contested. The parties filed prehearing reports. 

I held a remote hearing on November 17, 2021, via Zoom for Government. At the 

hearing, the Secretary presented testimony from MSHA Inspector Jason G. Detrick. CONSOL 

presented testimony from its Lead Safety Inspector Chase Shaffer and Safety Inspector William 

Hockenberry. I requested post-hearing briefs and permitted CONSOL to raise any objections to 

the Mine Violation History exhibit (Ex. GX–9) by the briefing deadline. Both parties submitted 

post-hearing briefs on January 18, 2022, and CONSOL raised no objection to the exhibit. I left 

the record open until February 2, 2022, for the parties to file reply briefs but received none.

II. ISSUES

In Citation No. 9203483, the Secretary asserts that CONSOL violated section 75.1722(a)

by failing to guard the area directly in front of the 5B tailgate belt drive roller of the 5B tailgate 

belt line at crosscut zero. (Tr. 17:15–21, 27:8–10; Ex. GX–1-1.) The Secretary believes the 

violation should be upheld as S&S, reasonably likely to result in lost workdays or restricted duty,

and the result of a low degree of negligence. (Tr. 17:21–24, 18:4–8; Ex. GX–1-1; Sec’y Posthr’g Br. at 5–11.) CONSOL contests the fact of the violation, the gravity and negligence 

determinations, the S&S designation, and penalty. (Resp’t Post-hr’g Br. at 5–14; Tr. 18:12–15.)

2 Upon receiving the Secretary’s motion for a partial settlement, I issued a Decision 

Approving Partial Settlement on September 16, 2021, resolving three of the six citations 

contained in consolidated Docket Nos. PENN 2021-0047 and PENN 2021-0058. Thereafter, at 

the hearing the parties entered a settlement on the record for two section 104(a) citations, one of 

which disposed of the sole remaining citation in Docket No. PENN 2021-0058. I issued my 

Decision Approving Second Partial Settlement for the two citations on November 24, 2021, 

resulting in the full disposition of Docket No. PENN 2021-0058.

 

3 The S&S terminology comes from section 104(d)(1) of the Mine Act, 30 U.S.C.

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

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

30 U.S.C. § 814(d)(1).
3

Accordingly, the following issues are before me: (1) whether CONSOL violated the 

guarding provisions of 30 C.F.R. § 75.1722(a) as alleged in Citation No. 9203483; (2) whether 

the gravity of such a violation would result in “lost workdays or restricted duty”; (3) whether the 

citation was properly designated as S&S; (4) whether CONSOL’s negligence in committing the 

violation is “low”; and (5) the appropriate penalty for the violation, if any.

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

III. FINDINGS OF FACT

At the hearing, the parties stipulated to the following items verbatim in a joint exhibit (Jt.

Ex. 1; Tr. 83:3–10):

1. CONSOL Pennsylvania Coal Company, LLC (“CONSOL”) is an “operator” as defined in 

section 3(d) of the Mine Act, 30 U.S.C. § 802(d).

2. At all times relevant to these proceedings, Harvey Mine, Mine ID 36-10045, was and is a 

mine, as defined in section 3(h) of the Mine Act.

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

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judge, pursuant to section 

105 and 113 of the Mine Act.

5. True copies of each of the citations that are at issue in this proceeding were served on the 

Respondent or its agent as required by the Mine Act.

6. Exhibit A, attached to the Secretary’s petition in the above-referenced dockets, contains 

authentic copies of the citations that are at issue in this proceeding with all appropriate 

modifications or abatements, if any. 

A. Operations at the Harvey Mine

CONSOL operates the Harvey Mine, an underground coal mine in Greene County, 

Pennsylvania that utilizes both continuous mining and longwall mining. (Ex. GX–9; Tr. 93:20–

23, 106:24–107:9.) Continuous miner machines drive into the coal seam and advance to create 

entryways used for travel into and out of the mine and to set up longwall operations. (Tr. 

106:24–107:9.) The continuous miners also create passageways perpendicular to the entryways, 

called crosscuts, which connect the entryways, and when viewed from above these entryways 

and crosscuts resemble a grid. (Ex. R–5.) In one of these entryways, CONSOL constructed the

5B tailgate belt line. (Tr. 23:18–24:3, 93:14–23.) The 5B tailgate belt line dumps coal onto the 

“mother” belt that brings mined coal up to the surface for processing. (Tr. 23:25–24:7.) The 5B

tailgate belt line utilizes a conveyor belt made of many splices, or pieces of belt, patched together

that circulates around the length of the belt line. (Tr. 38:1–2, 108:2–8; Ex. GX–2-1.) The belt

line must be lengthened by adding new splices every few days as the continuous miner machine

cuts deeper into the coal seam. (Tr. 37:22–38:5, 106:25–107:23.)

The 5B tailgate belt line is constructed to sit closer to one side of the entryway to provide

miners a passageway, and CONSOL built wooden walkways along the wide side of the belt line

for miners to traverse the 5B tailgate belt entryway. (Tr. 30:8–17, 31:5–32:4.) In addition, 
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CONSOL built a wooden walkway in front of the 5B tailgate belt drive roller—perpendicular to 

the wide side walkway—which goes underneath the bottom of the conveyor belt that revolves 

around the belt line. (Tr. 24:19–25:4, 57:10–24.) This wooden walkway provides access to the 

opposite or “tight” side of the belt line. (Id.; 58:20–25, 59:18–21; Exs. GX–3-1-2.) The tight 

side is the narrow side closest to the rib (or mine wall) where miners cannot traverse the 

walkways without turning sideways due to the narrow clearance. (Tr. 36:2–9.) The record 

indicates a wooden walkway was also built on the tight side. (Tr. 58:18–59:8; Ex. GX–3-1.) 

The perpendicular wooden walkway in front of the 5B tailgate belt drive roller is 

constructed of wooden planks and rests about six inches off the ground with a width of two-anda-half to three feet. (Tr. 30:6–7, 16–17, 31:9–10, 21–25, 32:1–4.) The vertical distance from 

this walkway to the bottom of the conveyor belt running overhead is approximately five and a 

half feet. (Exs. GX–1-4, GX–3-2; Tr. 33:7–9, 67:22–25, 76:13–77:9, 105:12–18, 119:22–120:1.) 

A miner would need to bend down to get under the belt line here. (Tr. 68:3–4, 76:25–77:9.) The 

bottom conveyor belt travels towards the 5B tailgate belt drive roller. (Tr. 33:11–16, 35:3–6; Ex. 

GX–2-1.) The 5B tailgate belt drive roller is part of the machinery that powers the conveyer belt 

and is located approximately at crosscut one on the 5B tailgate belt line. (Tr. 25:22–26:3, 26:12–

27:2.) The drive roller is some four feet in diameter and spans the width of the belt, which is 

some 52 inches. (Tr. 81:9–13, 100:10–15; Ex. GX–1-3.) The perpendicular wooden walkway 

sits no more than three and a half feet from the 5B tailgate belt drive roller. (Tr. 33:17–20, 67:8–

17, 103:8–10; Exs. GX–1-4, R–1 at 002, R–4 at 015.)

 

B. Preshift Examinations and Repair of Ripped Belt

As required by law, CONSOL’s preshift examiners survey the conditions at the Harvey 

Mine three times a day prior to the start of the day, afternoon, and midnight shifts. (Tr. 38:9–17, 

44:3–6, 51:16–52:14.) During the day shift on November 16, 2020, around 1:00 p.m., workers

shut down the 5B tailgate belt line to repair the conveyer belt, which was ripped in two. (Tr.

50:18–21, 51:3–18, 97:2–15; Exs. GX–1-3, R–1 at 002.) 

To repair the ripped belt, miners made two complete splices of belt fragments to create

one long conveyer belt. (Ex. R–1 at 002; Tr. 38:1–2.) After splicing the torn belt, miners on the 

midnight shift began training the belt. (Ex. R–3 at 013; Tr. 73:4–9, 108:5–8.) “Training the 

belt” means adjusting the rollers under the conveyor belt so it runs in the middle of the belt 

structure, thus preventing damage to the conveyer belt from rubbing against the stands. (Tr. 

36:21–25, 72:24.) Training the belt occurs at the tailpiece area of the 5B tailgate belt line closest 

to the working face, which lies at the opposite end of the drive roller’s location where Inspector 

Detrick issued the citation. (Tr. 111:15–112:18, 113:1–7.) Soon after miners on the midnight 

shift trained the 5B tailgate conveyer belt (Ex. R–3 at 013), CONSOL’s preshift examiner 

traveled the area to examine the belt line in preparation for the day shift that began at 8:00 a.m., 

yet had staggered miner arrival times of 7:15 a.m., 7:30 a.m., and 7:45 a.m. due to COVID-19 

restrictions. (Tr. 51:19–52:7, 73:21–24; Ex. R–2 at 003.) The 5B belt line was idle during the 

preshift examination that took place on November 17 from 5:00 a.m. to 6:53 a.m. (Tr. 50:12–14; 

Exs. GX–1-6, R–2 at 003.) At some point prior to the preshift examination the guarding around 

the 5B tailgate drive roller was removed. (Tr. 43:6–17, 53:6–14; Ex. GX–1-3.) The 5B tailgate 
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belt line was turned back on around 7:30 a.m. on November 17, 2020, just prior to Inspector 

Detrick’s inspection at 8:15 a.m. (Tr. 43:8–13, 97:19–21.)

C. Detrick’s Inspection of the Harvey Mine

MSHA Inspector Jason Detrick inspected the Harvey Mine for a routine quarterly 

inspection. (Tr. 17:13–14, 23:10–12, 43:12–13, 47:10–12.) Detrick has served as an MSHA

Inspector for the last eight years. (Tr. 22:15–16.) Prior to his work as an MSHA Inspector, 

Detrick worked approximately fifteen years in underground mines with experience in a myriad 

of positions, including equipment operator, shuttle car operator, and beltman, for a combined 

total of 23 years in mining. (Tr. 22:22–25.) Harvey Mine’s Lead Safety Inspector Chase Shaffer 

and Safety Inspector William Hockenberry accompanied Detrick during his inspection. (Tr. 

85:22–23, 117:16–20.) Shaffer has worked at Harvey Mine for six years and in the mining 

industry for over ten years with all his roles focused on mine safety. (Tr. 84:16–21, 85:24–86:2.) 

Hockenberry has worked in the mining industry for eight years. (Tr. 115:9–15, 24–25, 116:1–5.)

Inspector Detrick arrived at the Harvey Mine at 7:30 a.m. on November 17, 2020. (Tr. 

17:13–14, 23:10–12, 43:12–13, 47:10–12.) He first checked the mine map and preshift 

examination records. (Tr. 48:2–5; Ex. GX–1-6.) The preshift records listed no upcoming 

maintenance tasks. (Tr. 71:9–12, 72:6–7; Ex. GX–1-6.) Detrick started the inspection of the 5B 

tailgate belt at 8:15 a.m. (Tr. 43:12–13.) Inspector Detrick and Shaffer began at the zero 

crosscut of the 5B tailgate section. (Tr. 24:2–7, 16–20.) They proceeded along the side of the

belt line facing the exit. (Id.) Both Inspector Detrick and Shaffer took notes as they walked. 

(Tr. 29:10–14, 92:6–18; Exs. GX–1-2–4, GX–1-5, R–1.) They walked to the 5B tailgate drive 

motor area, which was wet, muddy, and “sloppy,” as indicated by the sight of dark ground 

instead of white rock dust. (Tr. 29:24–30:5, 41:21–24; Ex. GX–3-2.) Inspector Detrick 

observed that the bottom of the 5B tailgate conveyer belt was in operation and running in the 

direction of the drive roller. (Tr. 24:11–13, 33:13–16.) Inspector Detrick noted the belt 

contained no coal since the belt line had just recently started running. (Tr. 43:8–13, 94:3–4; Ex. 

GX–1-6.) No guarding stood in front of the 5B belt drive roller adjacent to the walkway leading 

to the tight side, nor was there any guarding above that walkway to protect miners from the 

bottom of the conveyer belt overhead. (Tr. 33:21–34:2; Ex. GX–1-1.) Inspector Detrick issued 

Citation No. 9203483 which only addressed the guarding missing in front of the 5B belt drive 

roller. (Ex. GX–1-1; Tr. 25:2–6.)

D. Issuance of Citation No. 9203483 and its Abatement

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

The 5B Tail Gate Belt Drive roller located at 0xc of the 5B Belt 

Conveyor is not guarded to prevent miners from coming into 

contact with moving belt components. If this condition continues 

to exist, it will increase the likelihood of injuries to those miners of 

a serious nature. All machine parts which may be contacted by 

persons and which may cause injury shall be guarded.
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Inspector Detrick issued Citation No. 9203483 at 8:30 a.m. for missing guarding in front 

of the 5B belt drive roller per section 75.1722(a). (Tr. 27:8–10, 73:4–5; Ex. GX–1.) He

designated the citation as S&S, as reasonably likely to lead to an injury resulting in lost 

workdays or restricted duty, and as low negligence. (Tr. 17:21–24; Ex. GX–1-1.) Inspector 

Detrick determined the hazard in question could affect one person, likely either a mine examiner 

or a belt person. (Tr. 38:20–22; Ex. GX–1-1–3.) 

Shaffer and Hockenberry found guarding panels nearby leaning up against the mine rib. 

(Tr. 96:14–18, 123:22.) To abate the citation, they turned off the 5B belt line and installed the 

six-foot guarding panel in front of the 5B belt roller. (Tr. 75:16–22, 108:19–21, 123:13–18; Exs. 

GX–1-1, GX–1-4.) Although the citation only addressed the missing guarding in front of the 

belt drive roller, Shaffer and Hockenberry also installed overhead guarding above the walkway 

in front of the 5B drive roller (id.), creating a cross-under so miners could safely go under the 

belt to the tight side while the belt line ran. (Tr. 99:7–11.)

IV. PRINCIPLES OF LAW

A. Elements for an S&S Violation

A violation is S&S “if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: 

(1) the underlying violation of a mandatory safety standard; (2) the 

violation was reasonably likely to cause the occurrence of the 

discrete safety hazard against which the standard is directed; (3) 

the occurrence of that hazard would be reasonably likely to cause 

an injury; and (4) there would be a reasonable likelihood that the 

injury in question would be of a reasonably serious nature. 

Peabody Midwest Mining, 42 FMSHRC 379, 383 (June 2020) (citing Newtown Energy, 38 

FMSHRC 2033, 2037–38 (Aug. 2016)); Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) 

(footnote omitted); see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 

133, 135–36 (7th Cir. 1995) (affirming the application of the Mathies criteria); Austin Power, 

Inc. v. Sec’y of Labor, 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies criteria); 

CONSOL Pa. Coal Co., __ FMSHRC __, 2022 WL 489572 (Feb. 10, 2022) (holding substantial 

evidence must support the theory of hazard under the second Mathies element). The 

Commission has specified that evaluation of the likelihood of injury should be made assuming 

continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

B. Negligence Determinations

Commission Judges determine negligence under a traditional analysis rather than relying 

on the Secretary’s regulations at 30 C.F.R. § 100.3(d). Mach Mining, LLC v. Sec’y of Labor, 809 
7

F.3d 1259, 1264 (D.C. Cir. 2016) (quoting Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 

2015)). In evaluating these factors, the negligence determination is based on the “totality of the 

circumstances holistically,” including factors such as the protective purpose of the regulation, 

and what actions would be taken by a reasonably prudent person familiar with the mining 

industry. Mach Mining, 809 F.3d at 1264 (quoting Brody Mining, LLC, 37 FMSHRC at 1703). 

V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND

CONCLUSIONS OF LAW

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

The Secretary alleges that CONSOL violated section 75.1722(a) which requires that 

“exposed moving machine parts which may be contacted by persons, and which may cause 

injury to persons shall be guarded.” (Tr. 27:8–10); 30 C.F.R. § 75.1722(a).4 CONSOL appears 

to contend no violation occurred but offered no supporting arguments at the hearing other than 

the missing guarding posed no hazard. (Resp’t Post-hr’g Br. at 4; Tr. 19:1–2.) 

Both MSHA Inspector Detrick and CONSOL’s Shaffer agree the 5B tailgate belt line was 

actively running. (Tr. 24:11–13, 94:1–4.) They, as well as CONSOL’s Hockenberry, also agree 

that at the time of the citation, the 6-foot guarding was missing from the area directly in front of 

the moving, exposed 5B belt drive roller. (Tr. 33:21–24, 119:13–20, 123:13–16; Ex. R–1.) The 

drive roller spans some four feet in diameter and is the width of the belt, which is 52 inches or 

over four feet wide. (Tr. 81:9–13, 100:10–15.) The walkway in front of the drive roller, used to 

access the tight side, sits no more than three to three-and-a-half feet from the 5B belt drive roller. 

(Tr. 33:17–20, 67:8–17, 103:8–10; Exs. R–1 at 002, R–4 at 015.) Given this exposure, miners 

may come in contact with the drive roller and suffer injury. (Tr. 42:7–16.) Based on the record,

I determine that CONSOL failed to guard the 5B belt drive roller while the belt line was 

operating, and the sizeable gap from the missing guarding exposed moving machine parts that, 

due to their proximity to the walkway, may be contacted by persons. Therefore, I conclude that 

the Secretary has met his burden of proving CONSOL violated section 75.1722(a).

B. Significant and Substantial Determination

1. Underlying Violation of a Mandatory Safety Standard

To establish the first element of the Mathies test, the Secretary must prove an underlying 

violation of a mandatory safety standard. I have determined that CONSOL violated section

75.1722(a), because it failed to guard the 5B tailgate belt drive roller. See discussion supra Part 

V.A. Thus, the Secretary has satisfied the first element of the Mathies test. 

4 Section 75.1722(a) provides: “Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may cause injury to persons shall be 

guarded.” 30 C.F.R. § 75.1722(a).
8

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

Which the Standard Is Directed

For the second Mathies element, the Secretary must establish that “there exists a 

reasonable likelihood of the occurrence of the hazard against which the mandatory safety 

standard is directed.” Newtown, 38 FMSHRC at 2038. Here, the hazard is the possibility of 

miners contacting the moving 5B tailgate belt drive roller, the issue against which the standard is 

directed. (Tr. 42:17–43:5); see Electric Equipment and Safeguards for Mechanical Equipment, 

37 Fed. Reg. 11,777, 11,779 (June 14, 1972) (proposing section 75.1722 “in order to prevent to 

the greatest extent possible, accidents in the use of mechanical equipment”) (implemented Feb. 

23, 1973, at 38 Fed. Reg. 4,976, codified at 30 C.F.R. § 75.1722).

CONSOL argues no miner would be near the exposed moving parts because no grease 

fittings nor maintenance were in this area and the 5B tailgate belt line had no dedicated belt 

attendant. (Tr. 75:13–15, 102:4–9, 22–25, 103:5–6, 104:18–105:5; Resp’t Post-hr’g Br. at 8–9.) 

While Inspector Detrick observed no miners in the immediate vicinity at the time of his

inspection, S&S determinations are made in the context of normal, continuous mining

operations. See, e.g., Knox Creek Coal Corp., 36 FMSHRC 1128, 1132 (May 2014) (indicating 

that the Judge erred when he took a “‘snapshot’ approach” to the S&S analysis). Contrary to 

CONSOL’s assertion, miners would be in the area throughout the workday as examiners inspect

the area before the day, afternoon, and midnight shifts. (Tr. 38:16–17.) While CONSOL argues

a mine examiner normally stays on the walkway side to do a preshift examination, I credit as 

reasonable Detrick’s testimony that a “mine examiner might have to go over [to the tight side] in 

order to do his exam if he suspects there’s something wrong on th[e] tight side of the belt.” (Tr. 

36:12–17, 55:19–22, 62:15–16, 64:18–20, 103:5–6.) I also find Detrick’s statement credible that 

“miners may shovel spillage from the belt,” as this area is near the transfer point to the “mother” 

belt. (Tr. 24:1–7; Ex. R–5.) Detrick also stated that miners may be assigned to rock dust or 

perform other work in the area. (Tr. 36:12–17, 55:15–19, 101:19–102:9, 22–25.) Although 

CONSOL’s Shaffer noted that the 5B tailgate belt did not have a dedicated belt attendant like 

two other belts had, Shaffer acknowledged that CONSOL had other beltmen called “rovers” who 

would go to wherever they were assigned work for the day. (Tr. 104:18–105:5.) Looking at 

CONSOL’s own work log shows miners were assigned work along the 5B belt line during the 

afternoon shift of November 16, 2020. (Ex. R–3 at 009, 010.) Indeed, the very existence of the 

walkway to the tight side in front of the 5B belt roller shows miners would need to access this 

area (Tr. 57:6–20, 101:19–102:9), and one can also reasonably infer that removal of the guarding 

in front of the belt drive roller indicates some work had already been performed here. Thus, I 

find under normal mining operations that miners would have assigned work in this area.

With regard to the occurrence of the hazard, miners traversing this area in front of the 5B 

belt roller would be on a walkway that spans only two and a half to three feet in width. (Tr. 

30:6–7.) Miners going into this area would also encounter the exposed bottom of the conveyor 

belt, which is only some five and a half feet above the wooden walkway. (Tr. 33:7–9.) Thus, a

miner of average height wearing boots and a hardhat—not to mention a six-foot-tall miner like 

Inspector Detrick—must bend down to go under the belt. (Tr. 68:3–4, 76:25–77:1.) Not only 

does the route require a miner to bend down, but Detrick observed this area around the wooden 

walkway to be wet, muddy, and could “get slippery” as was apparent from CONSOL’s 
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photographs of the dark mine bottom instead of the usual white rock dusk. (Tr. 41:22–24, 

64:23–25, 65:4–5; Exs. GX–1-3, GX–3-2.) 

To get to the tight side, a miner would traverse under a moving belt in this bent over or 

stooped position. The missing guarding in front of the 5B belt drive roller created an unguarded

space measuring approximately six feet high by four and a half feet wide. (Tr. 95:19–96:10, 

100:13–14, 119:7–14, 123:10–19; see Exs. GX–3, R–4.) As Inspector Detrick determined, a

miner could fall through the unguarded space next to the wooden walkway and come in contact 

with the drive roller, which could occur in two ways: Either the miner could slip and fall directly 

from the walkway into the moving and exposed drive roller, or the miner’s hardhat could come 

in contact with the bottom of the unguarded conveyer belt5overhead and be thrust toward the 5B 

tailgate drive roller. (Tr. 41:13–42:3.)

In the first instance, a miner could slip on the wooden walkway in front of the belt drive 

roller, given that the area around this wooden walkway was wet and muddy and thus slippery. 

(Tr. 41:22–24, 64:23–65:5, 69:16–70:6; Exs. GX–1-3, GX–3-2.) In the second instance, a miner 

attempting to traverse under the conveyer belt would not be aware how close he was to 

contacting the bottom of the belt, especially when walking in a stooped position. CONSOL 

argues this is all speculative as a miner would not necessarily fall in the direction of the belt 

drive roller, nor would a miner fall upwards. Yet, if a miner slips in a bent over position, the

miner is reasonably likely to jerk upwards or straighten up to try to regain his balance. In such 

an instance, he would be unable to see how close he is to the bottom of the conveyer belt and 

could reasonably contact the unguarded moving belt

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and be thrust in the direction of the drive 

roller. The “miner’s hardhat would be knocked off his head or he would be pulled into the belt.”

(Tr. 33:6–10, 19–20, 41:18–25; Exs. GX–1-4, GX–2-1.) Moreover, a miner would be exposed to 

5 The citation only considers the violation of the missing guarding around the 5B belt 

drive roller. (Ex. GX–1-1.) Therefore, I do not consider the possibility of direct injury from 

contact with the overhead belt in my S&S analysis. Nevertheless, Mathies requires an analysis 

of the circumstances as the inspector found them at the time of the violation. Peabody, 42 

FMSHRC at 382. 

6 CONSOL wisely requires its miners to lock-out and tag-out the belt, or turn off the 

machine and render it inoperable, before proceeding under the belt. (Tr. 99:22–25.) While a 

prudent miner should lock-out and tag-out the belt line before walking under the belt, “[t]he 

Court cannot assume that miners would exercise caution.” CONSOL Pa. Coal Co., 43 FMSHRC 

145, 148 (Apr. 2021). Inspector Detrick notes “there [are] accidents that happen every day 

because people weren’t prudent in their personal safety,” as well as “numerous fatalities” in the 

mining industry, that lead him to believe that miners would traverse under a belt without turning

off, locking out, and tagging out the belt. (Tr. 62:21–23, 63:4–10); see Sec’y of Labor v. Ohio 

Valley Coal Co., 359 F.3d 531 (D.C. Cir. 2004) (noting miner’s failure to turn off machine when 

assessing for maintenance led to severing of his arm and subsequent fatality). Here, however,

CONSOL’s lock-out and tag-out policy is a redundant safety measure and is therefore irrelevant 

to the S&S analysis. Sec’y of Labor v. Consolidation Coal Co., 895 F.3d 113, 116, 118 (D.C. 

Cir. 2018) (holding safety measures, including company policy not to access area of unsupported 

roof, are irrelevant to S&S analysis).
10

the hazardous condition first when traversing towards the tight side and again when inevitably 

the miner must retrace his steps to return to the walkway side. Indeed, doing so in a bent down 

position over a wet, muddy, and narrow wooden walkway increases the likelihood of the miner 

slipping and falling towards the exposed drive roller. Either slipping and falling into the 

opening, or having the miner’s hardhat come in contact with the bottom conveyer belt overhead 

thereby knocking the miner towards the exposed drive roller, could catch the limbs or clothing of 

a miner and pull the miner into the moving machinery. (Tr. 42:20–25.)

Given the testimony, the photographic evidence of the cited area, and the record as a 

whole, I determine it is reasonably likely that a miner could slip and/or come in contact with the 

unguarded conveyer belt, thereby falling towards and contacting the exposed 5B belt drive roller. 

Mathies, 6 FMSHRC at 5 (noting “an inspector’s judgment is an important element” in an S&S 

determination) (citing Nat’l Gypsum, 3 FMSHRC at 825–26); see also Buck Creek Coal, 52 F.3d 

at 135 (stating that Judge did not abuse discretion in crediting opinion of experienced inspector). 

I determine the violation was reasonably likely to cause the occurrence of the discrete 

safety hazard against which the standard is directed, and, therefore, the Secretary has satisfied 

the second element of Mathies.

3. Likelihood the Occurrence of the Hazard Would Cause Injury

Regarding the third Mathies element, the Secretary must demonstrate a reasonable 

likelihood that the occurrence of the hazard would result in an injury. As discussed in the section

above, if a miner slipped and fell because of the wet wooden walkway or tripped on the 

walkway, then the miner could reasonably fall into this six- by four-and-a-half-foot unguarded 

area and contact the moving machine parts. The miner’s entire body would not need to contact 

the drive roller to cause injury. The approximately four-foot-diameter drive roller that spans the 

52-inch width of the 5B belt spins swiftly, so contact with it is reasonably likely to cause injury

to limbs. (Tr. 42:20–43:5, 41:19–42:3, 20–25, 81:11–13); see discussion supra Part V.B.2.

 Consequently, I determine that the hazard of contacting the unguarded belt roller was 

reasonably likely to cause injury, thus satisfying the third element of the Mathies test. 

4. Likelihood Resulting Injury Would Be of Reasonably Serious Nature

Lastly, under the fourth Mathies element, the Secretary must prove a reasonable 

likelihood the resulting injury would be of a reasonably serious nature. An injury of a 

“reasonably serious nature” does not require a specific type of injury, and a mere sprain or 

similar injury may be “reasonably serious.” S&S Dredging Co., 35 FMSHRC 1979, 1981–82 

(July 2013) (holding the Judge erred in requiring the Secretary to demonstrate an injury would 

result in hospitalization, surgery, or a long period of recuperation to satisfy the fourth Mathies

element). Yet the drive roller is large enough, at around three and a half to four feet in diameter, 

and fast enough to crush limbs and otherwise cause a serious injury according to Inspector 

Detrick, who previously worked as a Beltman. (Tr. 42:7–16, 81:11–12.) CONSOL’s witnesses 

did not dispute Inspector Detrick’s testimony that such injuries could include damage to limbs.

(Tr. 42:1–4, 20–25.) I determine that the injuries expected to result from contacting the drive 
11

roller are reasonably likely to be of a reasonably serious nature, thus satisfying the fourth 

Mathies element. For the same reasons, I affirm the Inspector’s gravity determination as 

reasonably likely to result in lost workdays or restricted duty.

Accordingly, the Secretary has satisfied all four elements of the Mathies test. I conclude 

that Citation No. 9203483 was appropriately designated as S&S.

C. Negligence

Inspector Detrick assigned low negligence to Citation No. 9203483. (Ex. GX–1.) In 

support, the Secretary asserts that the preshift examiner should have anticipated the 5B tailgate 

belt would resume operation and thus needed to have the guarding reinstalled. (Tr. 79:9–17.) 

CONSOL argues for no negligence because the 5B tailgate belt line lay idle when the preshift 

examiner on the midnight shift examined the area. (Resp’t Post-hr’g Br. at 13–14; Tr. 120:15–

16.)

The record indicates that CONSOL trained the 5B tailgate conveyer belt during the 

midnight shift, whereby the belt would be allowed to run. (Tr. 97:18–21; Exs. GX–1-3, R–3 at 

013.) The parties agree that adding new splices and training the 5B belt would occur in the 

tailpiece area near the face where active mining takes place—this is the opposite end of the belt 

line from the 5B head roller where the guarding was missing. (Tr. 107:17–108:8, 111:13–112:3, 

112:24–113:7.) Though CONSOL could remove guarding in the tailpiece area to train the 5B 

belt under the maintenance exception, 30 C.F.R. § 75.1725(c), the guarding in front of the 5B 

belt drive roller on the opposite end of the belt line would not be removed to train the belt. (Tr. 

74:18–25.) Thus, while miners may need to remove a different piece of guarding in a different 

area of the mine to train the 5B belt, miners would not do this in the area around the 5B drive 

roller. Therefore, I am unpersuaded that this evidence lowers the negligence. 

No evidence suggests that CONSOL was aware of the missing guarding while the belt 

operated and willfully ignored the violation. Still, CONSOL should have known of the violative 

condition since one of its employees or contractors removed the guarding. (Tr. 53:6–54:25; Ex. 

GX–1-3.) Moreover, Inspector Detrick observed that a reasonable preshift examiner on the 

midnight shift would expect the belt line to run again soon after the completion of repairs to the 

torn conveyer belt, and therefore should have noticed and reinstalled the missing guarding. (Ex. 

GX–1-3; Tr. 79:9–17.); see 30 C.F.R. § 75.360(b)(11)(v) (guarding moving machine parts).

I determine that CONSOL should have known of the violative condition, but there were

mitigating circumstances. Therefore, I conclude low negligence is appropriate.

D. Penalty

The Secretary has proposed a penalty of $298.00. The Commission is not bound by the 

Secretary’s proposal and reviews penalty assessments de novo. Mach Mining, LLC v. Sec’y of 

Labor, 809 F.3d 1259, 1263–64 (D.C. Cir. 2016). Under section 110(i) of the Mine Act, I must 

consider six criteria in assessing a civil penalty: (1) the operator’s history of previous violations; 

(2) the appropriateness of the penalty relative to the size of the operator’s business; (3) the 
12

operator’s negligence; (4) the penalty’s effect on the operator’s ability to continue in business; 

(5) the violation’s gravity; and (6) the demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

CONSOL is a large operator with a low to moderate violation history. In the fifteen

months preceding the issuance of this citation, MSHA issued to CONSOL’s Harvey Mine three

violations of section 75.1722(a) that became final orders of the Commission. (Exs. GX–1-1, 

GX–9-1, GX–9-6.) I determined CONSOL’s negligence to be low. See discussion supra Part

V.C. CONSOL has not alleged that the proposed penalties would adversely affect its ability to 

continue in business. I also determined the gravity of the violation to be S&S, the number of 

persons affected to be one, the likelihood of injury as reasonably likely, and the expected 

severity as lost workdays or restricted duty. See discussion supra Part V.B. Finally, CONSOL 

demonstrated good faith by quickly installing the missing guard to comply with the cited 

standard. (Tr. 75:16–22.) In considering the criteria set forth in section 110(i) of the Mine Act 

and all the relevant facts, I hereby assess a penalty of $298.00. 

VI. ORDER

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

AFFIRMED.

Respondent CONSOL Pennsylvania Coal Company, LLC is hereby ORDERED to PAY

a penalty of $298.00 within 40 days of this decision.7

 

Alan G. Paez

Administrative Law Judge

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

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

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103-2968

(epstein.matthew.r@dol.gov)

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

15222-5425 

(pdennison@fisherphillips.com)

/gw

7 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration 

P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.