**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICEOF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA  AVENUEN. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.:202-434-9949

##  

| SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

                           Petitioner

 

                        v.

 

 
CONSOL PENNSYLVANIA COAL COMPANY LLC,
                           Respondent                                                                          |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. PENN 2021-0019

A.C. No. 36-07230-524717

 

 

 

 

 

Mine: Bailey Mine   

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**DECISION ANDORDER**

**and**

**RULING ONMOTION FOR ADVERSE INFERENCE**

 

 

Appearances:              RyanM. Kooi, Esq., U.S. Department of Labor, Office of the Solicitor, Philadelphia,Pennsylvania for the Petitioner

 

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

 

Before:                        Judge William B. Moran

** **

****This matter involves an accident whichoccurred on July 17, 2020 at Respondent Consol Pennsylvania Coal Company’sBailey Mine when six fully loaded rail supply cars broke loose from thebrakeman car and traveled out of control down the mine’s Crabapple slope some1,600 feet before crashing into the coal seam at the slope’s bottom. The caseprimarily[1]concerns the validity of two citations which were issued following that accident,Citation Nos. 7033990 and 7033991. The citations were issued upon reliance oftwo notices to provide safeguards, which notices were issued nearly nine yearsearlier, on October 25, 2011. Respondent challenges the applicability of thosesafeguard notices to the July 2020 accident. Throughout the hearing the“accident” was often referred to as the “incident.” Both terms apply to thesame event. During the course of the three-day hearing, a secondary issue aroseconcerning the appropriateness of the Court making an adverse inference on thegrounds of spoliation of evidence, to wit a failure by the Respondent topreserve evidence of a component of a car’s coupler known as a key stock. 

 

            For the reasons which follow, the Court findsthat the underlying notices to provide safeguard are fully applicable to theconditions identified in the citations and that an adverse inference iswarranted. 

 

**Preliminary Information**

** **

****Before addressing the particular findingsof fact, it is necessary to set forth the Notices to provide safeguards whichwere the foundation for the citations in this litigation. Safeguards arederived from 30 U.S.C.874(b) of the Mine Act which provides “Other safeguardsadequate, in the judgment of an authorized representative of the Secretary, tominimize hazards with respect to transportation of men and materials shall beprovided.”

 

            First, there is Notice to Provide Safeguard No.7070545, issued on October 25, 2011.   It provided: “Condition or Practice.During an accident investigation which began on 10-19-2011 it was determinedthe Company No. 32 **general supply car was not being properly maintained.**The supply car was the lead car attached to the Slope Hoist Brakeman Car thatbecame un-coupled causing six rail mounted cars to travel approximately 1700feet down the slope track uncontrolled. The #32 supply car was found at thebottom of the Slope Track with the metal eyelets used to connect the safetychains broken off. The condition exposes miners to serious injury resulting ina fatality from being struck by runaway supply cars. **This is a notice to providesafeguard****requiring****all****rolling stock to have properly maintained safety chainsand safety chain connection points**. **It also requires all rollingstock to be examined *prior to* being hoisted or transported in or out ofthe slope******as well as throughout the mine. If any defects are foundthe rolling stock shall be immediately removed from service. **Finally allpersons involved in the operation or movement of rolling stock and other typesof rail mounted equipment equipped with couplers will be trained in aninspection procedure to determine when defects are present****.**”****[2]****Ex. P 2 (emphasis added).

** **

            The Court finds that the safeguard notice isplain and direct with its requirements that all rolling stock is to have *properlymaintained safety chains and safety chain connection points* and that allrolling stock is be examined prior to being hoisted or transported in or out ofthe slope and if defects are found, the stock is to be immediately removed fromservice. Last, those involved with the operation or use of rolling stock mustbe trained as to the inspection procedure so that they can determine when defectsare present. 

The second Notice to Provide Safeguard,No. 7070546, arising out of the same accident that resulted in Safeguard,No. 7070545, was also issued on October 25, 2011. It provided: “Condition orPractice. Based on an accident investigation conducted on 10-19-2011 it wasdetermined that **the coupler and mounting bracket on the Slope Brakeman Car****is not being maintained****.** The condition resulted in four supplycars and two dollies becoming uncoupled from the brakeman car and travel uncontrolleddown the slope track into the mine. This condition exposes miners to seriousinjury from being struck by runaway supply cars. **Thisis a notice to provide safeguard requiring that the slope brakeman car and allrolling stock will [be] provided with properly maintained couplers. This alsorequires all couplers on rolling stock to be examined prior to being hoistedand prior to being transported throughout the mine**. When defects arefound the couplers will be removed from service. Finally[,] all personsinvolved in the operation or movement of rolling stock and other types of railmounted equipment equipped with couplers will be trained in an inspectionprocedure to determine when defects are present.” Ex. P 4 (emphasis added). 

 

            The Court finds that this safeguard notice is equallyplain and direct with its requirements that **the slope brakeman car and allrolling stock will provided with properly maintained couplers**. As with thefirst notice to provide safeguard, the second notice also required that allcouplers on rolling stock are to be examined prior to being hoisted and priorto being transported throughout the mine. So too, it required that when defectsare found, couplers are to be removed from service and, to make thatrequirement effective, it also required that all persons involved in theoperation or movement of rolling stock and other types of rail mountedequipment equipped with couplers must be trained in an inspection procedure todetermine when defects are present.

 

Accordingly, based onthe two safeguard notices issued in October 2011, when reduced to their corerequirements, as pertinent to this proceeding, the Court is to determine, by apreponderance of the evidence, whether the Secretary established that therolling stock did not have properly maintained safety chains and safety chainconnection points and whether the slope brakeman car and all rolling stock werenot provided with properly maintained couplers. 

 

**FINDINGS OF FACT AND CONCLUSIONS OF LAW**

 

            The hearing, a three-day affair, commenced onNovember 30, 2022. The Secretary called Joseph A. Vargo as his first witness. Vol.I, Tr. 26.[3]Vargo is an electrical specialist with MSHA, working out of its Waynesburgfield office. An interesting aspect of his work history, Vargo had beenemployed at the Bailey Mine. The mine is located in Crabapple, Pennsylvania. Heleft that employment to join MSHA in August of 2007. Tr. 152. 

Vargo informed that MSHA’s Walter‘Bud’ Young participated in the accident investigation involved in this case andthat he was the administration’s lead person in the matter. Tr. 33-34, 45. Directedto his notes for this event, Vargo confirmed that he arrived at the mine tostart his investigation on July 17, 2020, at 13:55.[4]Tr, 39, 42. At that time they met with Randy, ‘Rusty,’ McHenry, mine foremanand Mike Tenant, mine safety director. The MSHA investigators spoke with DannyWilliams, the hoist operator. Williams informed that at the start of the shift“they had a trip of cars that was already loaded, and he [Williams] had thecars pushed up to the brakeman car where he made the connection point for thecouplers, and he checked the safety chains on the trip at that time.” Tr.45-46. The cars are lowered into the mine on an incline (i.e. on a slope). Tr.226. Six loaded cars, weighing some 94 tons, were to be dropped into the mine.Tr. 47. The cars were rail mounted. Tr. 123. The cars were connected to thebrakeman car as follows: “The first car that was attached to the brakeman carwas the strap[5]car. [That strap car] ... would be No. 1. No. 2 and 3 would be general cars. No.4 and 5 would be slag cars, and the last car would be another strap car.” Tr.49. The first strap car was further identified as the ‘187 strap car.’ Vol. II,Tr. 124. 

 

            Importantly, the brakeman car, which was alsoreferred to as the “hoist car” and “brake car,”[6]during the hearing, was connected to the first strap car by a coupler and twosafety chains. *Id.* The coupler is the primary connection point betweencars, and that is the case whether that be the brake car to a car, or a car connectedto another car. Tr. 87. Thus, couplers also connect supply cars to each other. Safety chains are secondary connection points; there aretwo such chains on each car connection. For the chains connecting the brakemancar to the first strap car, one was measured to be 52 inches and the other was61 inches. Tr. 50. Plainly, the two chains were not of equal length. As theprocess to drop the cars into the mine began, the cars went over “the knuckle,”which is a small hill, and from that point started down the slope track. Thatbrakeman car, which is connected to the drum cable, pushed the six carsinitially, but once the cars passed the knuckle, it’s gravity that is causingthe cars to move down the slope. Tr. 51. However, at about 400 feet, the carswent into overspeed. That overspeed caused the hoist drum to activate thebrakes on the brake car. *Id.*

* *

            Vargo elaborated that “[o]nce the overspeedcondition activated, the hoist acted as it should when in overspeed condition. Itstopped the brake car immediately. **Which at that point, the coupler failedon the strap car, pulled out [from it], and then simultaneously, one of thechains failed. And in exactly milliseconds after that, the other chain failed. Andat that point, the six cars traveled to [the] slope bottom in an uncontrolledmanner.**” Tr. 52. (emphasis added). The cars then sped down the slope at arate of more than 600 feet per minute. *Id.* To be clear, all six carswent down the slope; all that remained at the top of the slope was the hoistcar and the detached coupler from the first car. *See also,*Transcript VIIat 88, testimony of hoist operator Williams. The 600 feet per minute rate ofspeed is intended for personnel travel, not for supplies. Tr. 54. For supplies,the normal rate of speed is to be 300 feet per minute.    Tr. 56. When theevent occurred, the hoist man initially thought that the hoist rope[7]had broken.  He then went to the slope track opening, where he discovered thatthe hoist [i.e. brake] car was still present. Tr. 56. That meant that the hoistrope did not break. The hoist man then traveled down the slope track and whenhe came to the brakeman car[8]he saw that the coupler had pulled out of strap car and was still attached tothe brakeman car. Tr. 57-58. 

 

            After checking the hoist house itself, andfinding nothing wrong there, Vargo then inspected the brakeman car, where hefound, as just noted, “a coupler that was pulled out of a car and was stillattached to the brakeman car.” Tr. 58. Vargo observed some damage to thecoupler. It was pulled out and its “sandwich plates, the rubber plates werebent back a little bit, and the draft gear[9]had some rounded edge on it, on the front of it.” *Id.* He also saw that“two couplers, clevises that [were] still attached to the brakeman car.” Tr.59. A clevis is horseshoe shaped piece of metal that has a pin through it. Itis also called a shackle. V II, Tr. 135. Its primary use is as a connectionpoint. Vol I, Tr. 89. Vargo informed that those clevises “were spread apartslightly, and the pin was broke out, and the part that screws into the cleviswas still remaining inside of the clevis.” Tr. 59. The clevis is not part ofthe coupler. It functions to connect the safety chains to the brakeman car. *Id.*

 

            Following that first visit, on July 23rdVargo made a second visit to the mine, accompanied by MikeSnyder with MSHA’s Tech Support. They went underground to the locationwhere the cars crashed. Tr. 63-64. Vargo described Snyder as an engineer and awire rope specialist. *Id.*and Ex. P 6, photos taken on that earlier, July17, visit by Bud Young. Tr. 67-68. 

 

Vargo was then directed to Ex. P 7,which consists of 76 pages. They pertain to photos that were taken on July 23,2020 by Mr. Snyder. Vargo was present when they were taken. Tr. 73. There is nodispute that the first strap car, the car attached to the brakeman car, showsthat its coupler is missing. Tr. 77-78. This was the car from which its couplerpulled out. Tr. 79. Vargo identified, within photos 2 and 3 of P 7, thecompartment or hole where the coupler assembly is normally to reside and thekey stocks, which are also in that location. In part, key stocks serve to keepthe draft gear assembly from moving back towards the center of the car. Vargoexpressed the view that the key stocks looked like something was rubbing onthem.    Tr. 83. A different photo showed the front keystock. For those front key stocks, their purpose is to prevent the coupler fromcoming out. Tr. 84. However, the left front key stock was missing. Vargo did not find anyindication that the key stock was present at the time of the accident.  Keystocks are welded to the car frame. *Id.* In support of his opinion, Vargostated that if a piece of metal breaks away, the remaining surface will beshiny, but he observed no such shiny or light spots. *Id*. Whileunderground, Vargo found no key stocks on the ground.*Id.*******Inresponse to a question from the Court, Vargo informed that in his opinion themissing key stock was not something that recently occurred. Tr. 85-86. 

 

            The Court also inquired of Vargo how the coupleris secured to a car. Vargo stated: “that’s the importance of the key stocks. The key stocks from the back, once they're there, the --we'll call this the pocket, the draft gear fits inside of there, and then thekey stocks are welded against the pocket to keep it from moving eitherdirection. That's what the key stocks are for, to keep them from coming in orto keep it from traveling outward, an outward direction.” Tr. 86. Vargoalso affirmed that “in order to effectively secure the coupler, there needs tobe a key stock at least on both sides of this photograph, and one is missing onthe left side.” He added, “It's an importance that all four key stocks be inplace, or at that point, you're weakening the coupler. You're setting it up forfailure is what you're doing.” Tr. 87. Vargo affirmedthat the key stocks are integral to the coupler system, stating, “Yes, theyare. All four -- all four should be in place for the coupler to act as the wayit should. If not, as I stated before, if not, you're setting up for failure atthat point.” Tr. 88. 

 

            Questioning by the Secretary then turned to thechains. The chains, described as secondary connections, were found by Vargo tohave one longer than the other.[10]As referred to above, Ex. P 6 at Bates 0052 is a photo of a new, 12-ton,clevis, with its pin. Tr. 90.[11]The photo depicts the exact type of clevis used in this event. Ex P 7, Batesstamp 0105, is a photo of the clevis from the accident, showing that it hadspread apart. Tr. 92. That clevis was the one attached to the brakeman car. Tr.93.

 

            Following the investigation, Vargo issued two citations on August 12, 2020. Tr. 105-106. Ex. P 1. In issuing the citation, No. 7033990, reflected in Ex. P 1, Vargostated that it referenced the safeguard that was in already in place. He determined that the cause of the accident was that “thesafety chains were not properly maintained, because they were not connected upthe same length. And that caused the cars to separate from the brakeman car.”Tr. 107. That referenced safeguard is No. 7070545. *Id*. As mentioned,that prior-issued safeguard was issued to the Bailey Mine on October 25, 2011. Tr.107 and Ex. P 2. Vargo stated that the safeguard, No.7070545, requires the mine “to properly maintain safety chains and safety chainconnection points, between two -- between the cars.” Tr. 109. Vargo stated thatsafeguard was issued because “there was a cause an uncoupling of cars, six railmounted cars.” *Id.* Thus, he affirmed that in 2011 six rail mounted carsbecame uncoupled, just as occurred in this matter.  

 

            Vargo stated that to be considered ‘properlymaintained,’ chains used for the secondary connection must be the same length.He elaborated that “[t]he reason being so anything that would create a shock isif the couplers would -- the coupler would separate the primary connectionpoint. The secondary would apply equal action to each chain.” Tr. 109-110. By‘equal action’ Vargo explained, if there is separation, both chains can beshared to the same amount of load. Tr. 110. If there is slack in one chain, theother chain will bear 100 percent of the load. *Id*. 

 

Also on August 12, 2020,Vargo issued Citation No. 7033911. Ex P 3. *Id.* This, second, citationwas issued on the basis that it “was also a contributory factor to theaccident, because of the key stock missing.” Tr. 112. That second citationreferenced Safeguard No. 7070546. That safeguard, as with the one justreferenced, was also issued to the Bailey Mine on October 25, 2011. Tr. 112. Forthis second safeguard, Vargo stated that it requires “all couplers and rollingstock to be examined prior to being hoisted and prior to being transportedthroughout the mine.” Tr. 112. It also required that “all rolling stock will beprovided with proper maintained couplers.” Tr. 113. Vargo asserted that eachcoupler was not properly maintained because he “determined the key stock wasnever in place when the car was being hoisted.” *Id.* Vargo added that thekey stock is part of the coupler, because, without it, the coupler will notfunction. *Id.*

**

            In the evaluation section of the citationsissued by Vargo, Ex. P 1 and P 3, he marked the gravity as “reasonably likely”that an injury would occur because of “[t]he way those cars traveled down theslope at a tremendous speed uncontrolled, and if it struck somebody, that 

would be a reasonable likelihood it was going to causeinjury.” Tr.114. There were two people down the slope when the event occurred. Hewas told they were in the shanty. The shanty is located “directly at the bottomof the slope track. From the track itself, the cars, it's up a little elevatedstep, in a crosscut, maybe 12 feet, 15 feet away.” *Id*. This was anestimate, as Vargo did not measure the distance. Vargo further described theshanty, informing “[i]t's a little room, maybe 12 foot by -- 12 foot by 12foot, 12 foot by 10 area. There's a bottom person when the cars are beinghoisted. That's their job. They stay in that shanty. They've got phones there. Theycan communicate. Heater to keep warm in the wintertime. Stay out of theelements.” Tr. 115. It is constructed out of block or corrugated metal. *Id*.

 

            The hoist operator did not immediately call downto the shanty but did so after he saw that the brakeman car was still there. Hetold them to stay in the shanty. Tr. 115-116. Others were potentially exposedto the hazard created by the event. Vargo described it as “a frequently traveledarea. You've got mine examiners walk through there, you've got motor men thatalways bring their trips in. You might have a mechanic doing permissibility oncables, or what have you down in the area of the shanty. They could be in thearea, contractors walking through.” Tr. 116. Slope cars are also used to hoistminers out of the mine. Tr. 117. However, when stock or cars are being loweredin the slope, a siren and a light are employed as a warning. *Id.*

 

Vargo marked the injury reasonablyto be expected as ‘fatal,’ expressing, “Well, just looking at the cars, theseven or six cars traveling down the slope at such a high speed with the weightinvolved. If it would strike a miner, there wouldn't be a chance he couldsurvive.” Tr. 118. And though in the past miners have told him that they could getout of the way if a car is coming down, that they could hear the car coming, hedid not buy into such claims. Tr. 119. 

 

Vargo confirmed that thehoist man informed that when the event occurred there were two motor men in theshanty. Tr. 120. Listing the negligence as moderate, Vargo’s rationale was thatthe “cars are used every day in the workforce, in and out of the mine, andsomebody needs to take -- take account of the cars when checked. They need tobe examined somehow.” Tr. 120. Vargo could not find any documentation that thecars had been checked. *Id.*In the records he saw, Vargo saw no problemsnoted as to the “the conditions of the coupler or the conditions of thesecondary connections, the chains and the clevises.” Tr. 121. 

 

            Speaking again to the chains, he stated, “they'resupposed to be of equal length. I believe each link, there's a total of 11, andthey're all -- they're all 11 links. That way, they get the same stretch pointwhere both are going to execute the same, share the load. That would befailure, disconnection of couplers.” *Id.*Vargo brought some experienceto the subject, informing that he ran a “motor previously on the job when [he]was working [at the Bailey Mine].” *Id.* During that time he observed“cars that would actually uncouple from each other, and the safety chains held,because they was of the equal length. We always made sure they was equallength. Because you're defeating the purpose if one's longer than the other.”Tr.121-122. Although he could not say definitively, it was his opinion that ifthe chains had been of equal length, the cars would not have disconnected. Tr.122. Similarly, Vargo believed that if the key stock was in place *and it wasproperly welded*, the coupler would not have pulled out of the car as theprimary connection point. Tr. 122-123. 

 

In response to a question from theCourt, Vargo answered that he believed that one of cars went off the rails inthe event. Tr. 124. Vargo also affirmed that the sequence of events once thingsgot out of hand, was the coupler detached, then the chains failed. Restated,the coupler broke away and then the chains failed, with the shorter chainfailing first and then, milliseconds later, the other chain failed. Tr.124-125. All the remaining cars had couplers and chains. Tr. 125. Further, theonly coupler and chain failures occurred between the brakeman’s car and the No.1 strap car. Tr. 125. The Court remarked, after seeing a number of photographsof the wreckage following the event, as discussed at transcript pages 136-144,that they showed “quite a mess” from the accident. Tr. 144. Vargo’s descriptionwas more vivid, expressing that calling it a mess was putting it “lightly.” Instead,he said it was “almost say like a bomb went off and exploded. Things areeverywhere. I mean, everything's all spread out.” Tr. 145.

 

Upon cross-examination, InspectorVargo acknowledged that he has no background in mechanical or structuralengineering, nor has he ever performed maintenance on hoists, or slope ropes.Tr. 150. However, he had done some welding on cars, with one of those involvingcutoffs, disconnecting the pin in the coupler. Tr. 151. Vargo agreed that tobecome a hoist man one has to learn how to conduct examinations of the hoist, andhow to operate the hoist, including operation with supply cars. That job alsoincludes conducting examinations of supply cars and couplers before they arehoisted.  He also affirmed that to become a hoist man one has to learn how tooperate the hoist with supply cars and “to conduct examinations of supply carsand the couplers before you hoist them.”[12]Tr. 152. 

 

The Respondent raised severalchallenges to Inspector Vargo about the safeguard, with the inspector agreeingthat Safeguard No. 7070545 does not describe whatproperly maintained safety chains and safety chain connection points mean,though the inspector did opine that the safety chains being of equal lengthwould be one such proper maintenance requirement, and that for a safety chainconnection point, in his opinion, it would require that “the eyelets or whatthe clevis would be attached to. That would be a connection point. Whatever theclevis is attached to.” Tr. 161. In a similar challenge, Respondent obtainedthe inspector’s agreement that the safeguard notice itself does not describewhat a defect means. Tr. 162. So too, Vargo was asked what criteria were usedto determine whether a defect in rolling stock exists. He answered, “one of theconnection -- connection points, if it would be not properly welded, notproperly made -- fit into the car correctly. If the hole is too big or itstarted to split where the eyelet was, or any unusual thing with the clevis.” *Id.*

 

            Despite the inspector’s agreement with many ofthe assertions raised by Respondent’s Counsel, Vargo did not agree that SafeguardNo. 7070545 does not describe how a hoist man should examine the rolling stockto look for defects. He responded, “[p]roperly maintain safety chains andsafety chain connection points. I've never seen a connection point going from aclevis to another chain. It typically goes from an eyelet to an eyelet.” Tr.162-163.

 

            Some of Respondent’s Counsel’s questionspresented inherent conflicts in them.     For example, Vargo was asked by the Respondentwith the assertion “[i]f an adequate inspection was conducted of the rollingstock, but no defect was found during that inspection, it would not be aviolation of the safeguard to fail to remove the rolling stock from service.” Tr.164. Vargo agreed, but the Court would note that the problem with the question iswhether an inspection could be deemed “adequate” if no defect was found but infact, there was a defect, and if a closer exam would have detected it. The clearevidence is that a missing key stock would be detectable, though it wouldrequire some effort.  

 

            Turning to Safeguard No. 7070546, Vargo acknowledgedthat it provided “a notice to provide safeguard requiring that the slopebrakeman car and all rolling stock will be provided with properly maintainedcouplers ... [and that] it requires all couplers on the rolling stock to beexamined prior to being hoisted and prior to being transported throughout themine; [and that] [w]hen defects are found, the couplers will be removed fromservice ... [and that] all persons involved in the operation or movement ofrolling stock and other types of rail mounted equipment, equipment couplerswill be trained in an inspection procedure to determine when defects arepresent.” Tr. 165. As with his previous responses to the other safeguard, Vargoagain agreed that this safeguard does not describe “what properly maintainedcouplers means.” Tr. 166. Seemingly confining himself after describing thecriteria to determine whether a coupler is properly maintained, he answered “[w]ell,one of the things is the coupling device, 

another thing is the slop in it, the up and down movement ofit. The connecting device, I always called it the tongue that's inside the couplerto see if that will push in and out, lock and unlock freely.” *Id.*Respondent’sCounsel then asked in light of his answer, “if all of those things are okayduring the inspection or the examination prior to hoisting, you would thinkthat the coupler 

would be okay; would you agree with that?” Tr. 166-167.Vargo answered “Yes.” 

 

            From the Court’s perspective, such responseshave to be taken in the context of the facts at hand. That is, the inspector’sopinion can’t be used to defeat a safeguard if, for some other reason, acoupler was shown to be improperly maintained and the same result would applyto an improperly maintained chain. 

 

            Vargo gave some examples of defects in couplers,stating, “a defect is one of the things I just said. It wouldn't uncouple. Theuncoupling device wouldn't work, the tongue wouldn't work, sloppy play, dirtinside of the couplers.” Tr. 167. 

 

            In issuing Citation No. 7033990, Vargo agreed hereferenced Safeguard No. 7070545. Tr. 167. For Citation No. 7033991, hereferenced Safeguard No. 7070546. Tr. 168. Vargo further acknowledged that theloaded trip began to accelerate until it reached an overspeed condition atabout 600 feet per minute. Once that happened, the hoist supervisory system, or‘HSS,’ actuated an emergency stop. This caused the hoist drum brakes to engageto stop the load with the effect of having the brakeman car stop rapidly. Followingthat, the coupler disengaged from the strap car. Tr. 168-169. None of this isin dispute. 

 

            Though he tried, Respondent’s Counsel could notobtain Vargo’s agreement that the coupler would not have disengaged if thespeed of the cars had been 300 feet per minute. Tr. 169. Vargo did agree that *thecoupler itself* did not fail, that is, the coupler on the brakeman’s car asconnected to the coupler on the strap car, those couplers didn’t separate fromone another. *Id.*The missing key stock, an integral part of the coupler,was the culprit here.

 

            Vargo acknowledged that the hoist man, DanielWilliams, told MSHA that he did an inspection of the safety chains andconnection points. Specifically, Williams told the MSHA inspectors that he “checkedthe couplers, safety chains, clevises, 3/8 figure 8 chains on the adjoiningcouplers, ... [and] conducted the pre-op checks on the brake car and everythingchecked out to be okay with the brake car.” Tr. 176. Further, Williams informedthat he called Mr. Minear, who was on the bottom of the slope, to make surethey were ready to receive the cars, in order to make sure no one was on theslope track or slope bottom. Tr. 176-177.  

 

            Vargo agreed that it was his contention that theleft key stock, as Respondent’s Counsel expressed it, may not have been inplace when the accident occurred. Tr. 179. Of course, Vargo did not view thekey stock before the accident, but it was his view that it was not in placebefore the accident, an opinion based on “from what [he] visualized on that, [he]would say it was not in place.” *Id.*He was not contending that Mr.Williams knew there was a missing key stock before the accident. Tr. 180. 

 

 

            Vargo’s understanding was that a coupler isinserted into a supply car and gets pushed back into the back key stocks, thenadditional key stocks are put in the front of the draft gear assembly and theyare welded in place. Tr. 181. If a coupler was inside the supply car hole, itwould be hard to see the key stock. *Id*. Ex. P 7.**Ex. 7 at MSHA0055, Vargo stated, shows the back key stocks, but thaton the left side the front key stock was missing. He agreed that there was someweld material present but it was not continuous and he described it as a poorweld. Tr. 183. Vargo maintained that if the key stock was in place, one couldstill determine if there was a poor weld. This would require having one look atthe weld on the key stock to determine if the weld was good or bad. Tr. 184. Heasserted that the examiner is supposed to make a visual examination. *Id.***

 

            Turning to the subject of safety chains, Vargoreaffirmed that one of the safety chains was longer than the other. Tr.184-185. He acknowledged that Safeguard notice No. 7070545 does not specifythat those chains must be of a certain length, nor that they must be of equallengths. Tr. 185. MSHA has not contended that there was any issue with thehoist rope, finding that it was compliant. *Id*. He also agreed thatbefore a trip is dropped down a slope, the hoist man notifies the bottompersonnel. Tr. 186-187. There is also a visual warning device and there is noclaim that it was not working on July 17, 2020. Tr. 187. The same is true forthe audible warning device; it too was found to be working. Tr. 187-188. 

 

            It was Vargo’ position that if the key stock wasproperly welded, it would have held the coupler in place. Tr. 189. This view,he asserted, was based upon his “experience of seeing loads travel throughoutthe mine.” *Id.* However, he conceded that he had no information tosupport his view that “the couplers would have withstood the force exerted onthe supply car when the brakeman car suddenly stopped.” Tr. 190. The Courtwould point out that such a result would not be necessary to uphold aviolation. Similarly, while he could not state that the safety chains couldhave withstood that same force when the brakeman car suddenly stopped, he didmaintain that if those chains were of equal length, they could have shared theload, instead of one chain taking the load. *Id*.  

 

            Vargo reaffirmed that key stocks must be presentfor the coupler to function. Tr. 218. Speaking to the secondary chains, he reassertedthat one chain was shorter than the other; with one measured at 52 inches andthe other at 61 inches. Tr. 219.

 

            On the subject of testing or evaluating theintegrity of key stocks, Vargo maintained that “by looking at the weld on thekey stocks. I mean, those cars could be -- those cars could be turned upside ... whenthey're in the yard before they're actually used. Like to get a betterrepresentation. Sometimes there's a cover on it. It's called an inspectionplate. And I don't know if they're welded over top of it. The inspection plateshould be kept open just for that reason, to inspect the coupler.” Tr. 191. Althoughhe was not asserting that the hoist man is to turn over a supply car every timebefore he sends the hoist down into the mine to load supplies, because to soassert would be impracticable, he did contend that “there ought to be someinspection procedure put in place for [the mine] to check the cars.” Tr.191-192. Still, he agreed there was a visual inspection *procedure* inplace at the mine on July 17, 2020 and that the procedure was sufficient onthat date. Tr. 192. The question, however, is whether the visual inspection wassufficient, not just the procedure. The Court finds that it was not.

            There was then a reference to Ex. P 9. Tr. 195. Thisstemmed from a question by Respondent’s Counsel regarding whether MSHA’s techsupport tested or evaluated the structural integrity of the safety chainconnection points. Vargo could not confirm that Tech Support did such anevaluation of the structural integrity, noting only that “[i]n the report, themine operator went with an 18 ton clevis an equal length of 30 millimeterchain.” Tr. 198-199. On that issue of structural integrity, the Court commentedthat the principle of *res ipsa loquitur*could come into play. Tr. 196. Thechains, of unequal length, broke away. 

 

Vargoconfirmed that he issued a new safeguard on the same day that he issued thecitations in this matter. Tr. 200. In that safeguard Vargo agreed that heconcluded that “the hoist brakes engaged causing the brake car to come to anabrupt stop, and the force applied to the strap car caused the car coupler tosever and separate.” Tr. 200. Reading further from that safeguard, Vargo agreedit reflects “that two 30 millimeter safety chains with one and a quarter inchretainer pins tied the cars together. Each chain attached by a 12-ton clevisand that, quote, both retainer pins broke from the shock load.” Tr. 201. Thus,he also agreed by using the term ‘shock load’ it refers to “when the overspeedbrake stopped the brakeman car, and the force exerted from that resulted inthose pins severing.” Tr. 202. 

 

            Respondent’s Counsel also had Vargo’s agreementthat the hoist was designed to operate at 600 feet per minute but that Consolhas since removed that ability to operate at that speed. *Id.* Counselalso had Vargo’s agreement that the state of Pennsylvania approved the hoist. *Id.*However, the Court would note that Pennsylvania’s approval of the hoist is notdeterminative of the issues in this matter. That is to say, approval by thestate of the hoist cannot be used to insulate Consol if it is determined thateither or both of the safeguard notices were violated. 

* *

            Counsel for Consol then turned to MSHA’smodification of the k order that was issued in connection with this matter.That modification “permit[ed] the operator to start to clean debris andsupplies on the slope track between the bottom of the slope and the inbound No.4 slope bottom switch.” Tr. 204 and Ex. P 8, 9203689. A subsequent modificationoccurred on July 20, 2020, permitting “the operator to clean up the slopebottom track from the No. 4 slope bottom switch to the wreck at the end of theslope track ... from the slope bottom to the wreck site ... and place the slopebottom tracks back into operation.” Tr. 205. 

 

Turning next to photos in Ex. P-7,which were taken on July 23, 2020, Vargo stated that he did not see any debrisin those photos. Tr.206. He agreed that, in the words of Respondent’s attorney,that he didn’t “see any photos that look like the photos from 7/17 that showedroof bolts and plates and channels and pipes sticking up vertically when [he]testified about those.” Tr. 206.

 

Vargo further acknowledged that,per photos within Ex. P 7, the strap car and the chain were covered with somesort of material, though he couldn’t say that it was mud and dust. Tr. 207. Healso agreed that he was not contending that the clevis, per those photos, wasspread apart before the accident, meaning that the event itself spread theclevis apart. Tr. 208-209.   The point of these questions was apparently toshow that the photos did not reflect the rust or material on the equipment atthe time of the accident, but rather as a consequence of the equipment havingbeen brought to the surface, and, being outside, it was exposed to theelements. Vargo did not walk to the bottom of slopeuntil July 23rd. Neither he nor Bud Young ever found the missing keystock. Tr. 210. Vargo agreed that the key stock was not found on the slope, norwere the pins and clevises found there either. Tr. 213-214.

 

Questioningthen turned to the shanty at the bottom of the slope. This line ofquestioning was obviously designed to show that those at the slope bottom werein no danger. However, the Court views such a suggestion as a bit much. Vargoagreed that the shanty is a small room “where persons are supposed to go whenthey're hoisting supply cars to make sure they're in a safe area ...[a]nd [it’s]elevated above the floor at the bottom of the slope [and one has] to climb upsteps to get into the shanty where miners go to be in a safe place whenBailey's hoisting material down the slope.” Tr. 211. Beyond that, Vargo alsoagreed that the shanty “is set at a 90-degree angle and crosscut, whichprotects it from anything falling down the slope at the bottom.” Tr. 214. 

* *

Vargo has never known ofexamination of hoist cars when they are underground; the point being that suchexams are done on the surface. Tr. 216. Regarding the subject of defects, he acknowledgedthat the word ‘key stock’ does not appear in Safeguard notice, No. 7070546.  In response to the Court, Vargo did clarify that a missingkey stock would be a defect because a coupler can’t function properly if keystocks are missing. Tr. 217. Thus, he affirmed that key stocks are integral tocouplers functioning. *Id.*

 

**Why was a new safeguard issued?**

** **

Regarding Safeguard notice No. 7033989,which Vargo issued on August 12, 2020, Ex. P 8, at page 14, MSHA Bate stamp0142, he was asked why he issued a new safeguard, if he felt that the existingsafeguards were sufficient. He explained that it related to the changing of theremote from 600 to 300 feet per minute. Tr. 220. He elaborated that it wasbrought about because of “what the select mode is in.” Tr. 221. That newsafeguard spoke to this because it was a contributing factor to the accident,and it also addressed “hoisting rates and the weights ... nobody knew ... how muchweight ... to drop and not to drop.” Tr. 221. Thus, the Court finds that the 2020notice to provide safeguard addressed a new and distinct hazard with respect tothe transportation of men and materials.  

 

The Court pressed Vargo furtherasking, given the length of the text in the new safeguards, if it would be fairto view them as undercutting the existing safeguards, that is, to assert thatthe existing safeguards didn’t cover the accident here. Vargo answered that theRespondent was asserting that the existing safeguards didn’t point out everylittle thing. He stated that was the mine operator’s point of view, not his. Hethen noted the safety chains with their mismatched lengths as such an issue. Tr.222-223.

 

Returning to the violations athand, Vargo then elaborated that the key stocks are arranged so that there is aset, fore and aft, on each side to secure the coupler. Tr. 227. He informedthat it will be difficult, but possible, to see the fore key stocks if thecoupler is moved to one side. Tr. 227-228. The coupler can move left or rightby 40 degrees. Tr. 228. When the car is being moved, the coupler will bedirectly in the middle. Tr. 228. In such a position, while one would have to kneel,one could see the key stocks. Tr. 228-229. Pressed further, the Court asked ifit would be difficult to view an intact key stock. Vargo agreed, but emphasizedthe importance of making such exams because of safety concerns. Tr. 229. Summingup his opinion, Vargo expressed that during a regular inspection one could missseeing an issue with a key stock and a coupler. Tr. 230. Onre-cross-examination, Vargo agreed that key stocks and couplers are not thesame thing, but “key stocks [are] critical to the draft gear of the couplerworking as designed.” Tr. 231.

 

Regarding the issue of whether asafeguard can be modified and if that occurs if that means there can be noviolation following such a modification until there is a subsequent violationof the then modified safeguard, the Court commented “if I issue a safeguard onJuly 1st, and on July 3rd, two days later, I add additional information, that'sdifferent in my mind from a safeguard where three months down the road, Imodify the safeguard. Because one originates from the original issuance and ispart of it, much like a citation can have an extended page to it, and itdoesn't mean it's a separate citation. It's just a clarification, really, ofthe original safeguard versus one that's issued two months down the road as ahypothetical.” Tr. 234. 

 

On re-direct, referring again tothe length of safety chains, the Secretary’s attorney asked of Vargo if he hadany experience with the issue. Vargo offered anecdotal information that thechains are to be of equal length. Tr. 235. The Court then commented that it justmakes common sense, so that the dual chains care share the load, stating, “Iwould also observe in this process, we don't have to park our common sense. Inthe sense that ... it stands to reason that if you have two chains of unequallength, and then you have to stop suddenly, the chain of the shorter lengthwill necessarily feel the force first, and, therefore, if the purpose of havingtwo chains to provide additional -- adequate support, then it's not working asintended, that the second chain is not for decoration. And so I would just say,again, common sense leads to the conclusion that both chains perform[ ] theirfunction in tandem.” Tr. 235-236.

 

Following the Court’s comment,Respondent’s counsel asked Vargo if either of the safeguards in issue in thismatter mention anything about the length of safety chains, to which heresponded that they do not. Tr. 236-237. Under redirect to that point, Vargowas then asked if the safeguard includes maintaining them of equal length. Vargoanswered it does not mention chains being of equal length, but he then addedthat chains of different lengths defeats their purpose. Tr. 237.

 

Given so much back and forth betweenthe parties on the length of chain issue and the suggestion that perhaps thechains had been adjusted to be of the same length before the accident, theCourt asked of Vargo if anyone from the mine ever asserted to him that thechains were in fact of the same length, to which he responded no such claim wasmade. Tr. 242. 

 

As a factual matter, Vargoconfirmed that the clevises were attached to the brakeman car and that thechains were attached to those clevises. Tr. 242. Further, Vargo informed thatthe pins on the clevises were welded to them, so the pins could not be moved. Accordingly,being welded, the chain lengths could not be changed on that end. Tr. 243. With the chains on the slope car still attached,the suggestion by the Respondent that perhaps the chains had been altered tomake them of equal length amounts to unsupported speculation. The Court findsthat the subject chains were in fact at least functionally of differentlengths.  

 

Following Inspector Vargo, witnessJustin Jones, was called by the Respondent. Presently, Mr. Jones is amaintenance officer for the United States Air Force. Tr. 247. Prior to that, heworked for Consol Energy at the Bailey Mine, and had been so employed there foreight years. Tr. 249. For the majority of that time he was a safety inspectorfor Consol. He confirmed that the purpose of the slope hoist is to raise andlower equipment in and out of the mine. Tr. 251. As part of his duties, he wasinvolved in inspecting the slope hoist with MSHA inspectors. Besides the hoistitself and its rope, the inspectors would also check the supply cars, checkingcouplings, making sure the safety chains were on, and checking the wheels onthe cars to make sure they weren’t locked up. Tr. 252. Jones was employed atthe Bailey Mine at the time that the alleged safeguard violations in issue inthis proceeding were invoked. Tr. 253. In fact, he was working at the mine onthe day the “event” occurred on July 17, 2020 and on that day, he wentunderground with MSHA Inspector Bud Young. Tr. 254. 

 

Jones described a key stock as ametal piece inside the coupler pocket *that holds*the coupler assemblyinside the car. Tr. 255. He added that thekey stock is attached to the car, not the coupler. Incorrectly, he stated itwas bolted. *Id*. The overwhelming evidence is that key stocks are welded.

 

Addressing Safeguard No. 7070545,Ex. P-2, Jones was asked if that safeguard referred to the safety chain length,answering it did not. Tr. 256. He admitted to having a discussion with someMSHA personnel about the “different lengths” of the safety chains. *Id.* Jonesalso stated that while he and the MSHA people looked at the connection points, noone saw anything wrong with them. Tr. 257. 

 

It must be said that Jones’ memorywas short on details. For example, after Counsel for the Respondent, referringto Ex. P-3, made a long assertion about the allegation that “it was determined thatthe coupler of the No. 187 supply car was not beingmaintained. Says that the left front key stock inside a coupler pocket wasmissing. There were no markings or weld materials on the pocket,” he then askedJones: “Did you inspect the couplers on July 17th, 2020 with Mr.Young?” Tr. 257.

 

 Jones answered: “I mean, to sayspecifically we did, it's hard to remember. But we went                      overthe entire wreck, looked at everything, so, yes.” *Id.* And when thenasked if there was any mention of a missing key stock on July 17, 2020, Jonesresponded only, “[n]ot to my recollection, no.” Tr. 258. When counsel for theRespondent stated that Citation No. 7033991 was issued based on safeguard No. 7070546,referencing Ex. P-4, Jones stated that he was familiar with it but that it doesnot refer to key stocks. Tr. 259.  Jones had no information to offer about thebasis for the safeguard that was issued on October 19, 2011. *Id.*

 

Asked if he agreed with MSHA’sallegations regarding the missing left key stock, he responded that he did notagree because he believed “it's impossible to prove or even assume that the keystock was missing prior to the accident. [He thought] the tremendous force thatthat key stock and pocket -- or coupler pocket was under, very easily couldhave likely caused the damage to the key stock, to rip it out.” Tr. 260. Jonesthen identified Respondent’s Exhibits 1 and 2 as his notes for the citationissued by Vargo. Referring to his notes, Jones believed the mine did not “breakthat section of law.” Tr. 262. For example, he took issue with the “mechanicallysound safety chains connection points, [asserting that] our safety chains andconnection points were completely fine. There was nothing wrong with them. Theylikely failed well past.” Tr. 262. 

 

Jones alsodisagreed with the likelihood of anyone being injured from the event,expressing “[j]ust because of the safety mechanisms we had in place on theslope bottom make it near impossible for anybody to get hurt [because] before aload is even put over top of those Crabapple slope, an alarm goes off [and] [a]phone call is made, first of all, down to the bottom of the slope to ensurethat the entire area is clear. Then an alarm is sounded, which is a very loudalarm, which lets you know you need to get out of the way. In addition, the waythat the slope is designed. It's shaped like an umbrella with all of the switchpoints facing away from the rail that comes down. So even if someone was backbehind in a switch, the way it's designed, the trip cannot go with the switch. Sothe likelihood of this -- I checked it, the likelihood of someone getting hurtis zero *at the bottom of the slope*. Because everyone that's down there-- in addition, everyone that's down on the slope is a trained person for thatarea, and they know the phone call comes, and they know the alarms that go off.”Tr. 263-264. (emphasis added). That alarm, Jones added, “[i]t sounds like anair raid siren. It's the loudest thing you've ever heard.” Tr. 264. There isalso, he believed, a “red flashing light ... right at the bottom of the slopewhere it starts to level off.” *Id.*

* *

Jones acknowledged that there arepeople that work at the bottom of the slope, but he maintained that they wouldbe out of harm’s way by being either in a break room area or in the “umbrellaportion of the slope” that he referred to earlier. Tr. 264-265. Jones reassertedhis belief that if, as in this event, equipment broke loose and traveled downthe slope, there was “[z]ero percent chance” that anyone would be affected.[13]Tr. 265. Jones also was of the opinion that as “[n]ever once did any of theseclevises or chains come into question. We've never experienced broken chains orclevises in a setting like this. So I don't know how we could be considerednegligence [sic] being as that has never happened in the past.” *Id.*

 

The Courtdoes not share Mr. Jones’ sanguine evaluation. This is because it is foundedupon everything going according to plan when cars are being dropped. Butobviously that didn’t happen here with six cars screaming out of control downthe slope. A controlled drop is a very different event from what occurred here.Further, while Jones is entitled to express his opinions about negligence andwhether anything like this had happened before, as affecting negligence, ultimatelysuch determinations are for the Court. In that regard, the Court finds that anearly identical event *had occurred* before and resulted in the 2011safeguards being issued.

 

 

Respondent’s Counsel then turned toEx. R-2, involving Citation No. 7033991, the coupler violation. For thiscitation too, Jones did not believe it was a “valid citation, because [ ] there'sno way to know the key stock was missing prior to this accident. There's justno way to know that after *the violent event* that happened.” Tr. 267(emphasis added). Jones was “[p]retty sure” that on July 23rdMr. Snyder and Mr. Vargo walked the slope and that thosetwo were looking for a missing key stock. Asked if they found a key stock,Jones answered “[t]o my knowledge, no.”*Id.*Asked if those twolooked for the clevis pin at that time on the slope, Jones affirmed they did. Asto whether they found one, he did not remember. *Id.* He only remembered “wehad some*stuff* at the top of the slope. I don't know if they recoveredall of it.” Tr. 268. (*italics* added, as ‘stuff’ was not explained).

 

Jones repeated his view of the likelihoodof an injury occurring as based on the same reasons he gave in his testimonyabout the other citation. *Id*. Though he was present when the MSHApersonnel spoke with the hoist man, he could only recall “bits and pieces” ofwhat was said, explaining he “[j]ust got the gist.” *Id.* His recollectionwas that it was about the speed setting being too fast for the amount of weightinvolved and they simply forgot to put the hoist back to the slower speed. Tr.269.

 

On cross-examination by theSecretary, Jones agreed that he didn’t do any calculations in support of hisopinion about the forces that would be applied to the clevises, coupler orsafety chains. Tr. 270. Jones also agreed that the warning is given before aload is dropped to make sure that miners are out of the way. Tr. 271. He didnot believe it was a “highly traveled” area, stating that there would only betwo to three people down there on a shift. *Id.*

* *

Asked about anyone finding themissing key stock, Jones again repeated “[t]o [his] knowledge, no.” Tr. 272. Hedid see the coupler pocket where the key stock was missing. *Id.* Asked ifhe saw any marking showing that the key stock had been ripped out, Jonesanswered,  “[n]o, but it went under a severe wreck with lots of dust.” *Id*.The Court then asked Jones about the dimensions of a keystock, to which he informed it was about 7 inches long with thickness of aboutone inch. *Id.* As a point of reference, the Court notes that the width ofthe paper for this decision is 81⁄2 inches, with the point being that the keystock length is not especially short. 

 

Jones was then referred to Ex. P-6,a photo, date stamped 7-17-20 at 15:50, with Bates stamp 0034. He identified itas a coupler pocket, presuming it was of the supply car that had the missingkey stock. Tr. 273-274. Jones agreed that as to the back key stocks there areindications that something was rubbing against the key stocks. *Id.*  Whenasked the important question of whether there was any indication that a keystock had broken away, Jones at first responded that he didn’t know if heunderstood the question. The Court then interceded, stating that it was not ahard question. The Court noted that the Secretary was asking about the leftside and the two welding marks or welding sites present. Whenasked the same question again, this time Jones agreed that there was noindication that metal had been torn away or ripped away from that location. Tr.275. Also, when asked if the outside key stocks aremissing does the coupler still work to keep the cars together, Jones responded,that he couldn’t “answer that. I don't know. I would think so.” *Id*. Yet,he then agreed that the purpose of key stocks is tokeep the coupler in place and that key stocks are an *integral* part ofthe system. Tr. 275. 

 

 Asked if one can see the keystocks, even if the coupler is present, Jones responded it was difficult toanswer that and that he could not recall if it’s easy to see them. Tr. 276. Jonesagreed that the bottom of the coupler pocket is open and therefore one couldsee from the underside if a key stock was missing, at least on the car in thephoto. *Id*. Even on basic issues, such as if chains are normally of equallength, Jones said normally yes, but could not “speak to that a hundredpercent.” Tr. 277. He did agree however that with chains of equal length theywould share the load, each catching 50% and further that if he saw one chainnine inches longer than the other it would cause him to question if the chainswere adequate. *Id.*

 

On redirect from Respondent’sCounsel, referring to the same MSHA photo 0034, Jones was asked where the rubmarks were located. He responded that they were on the key stocks themselves. Askedthe hypothetical if the key stock broke and was no longer present, Jones againexpressed that the rub marks would be on key stock itself, not on the welds. Tr.279. 

 

On December 1, 2021, the second dayof testimony began with the Respondent calling Daniel Williams, an employee ofConsol for 21 years. Holding several positions over those years, his mostrecent position is outside hoist operator in the yard. Vol II Tr. 6.[14]In July 2020 he was the hoist operator. Thatposition includes lowering equipment and supplies into the mine and raisingthose things out of the mine as well. Describing his day-to-day duties for thatjob, he stated: 

 

If I'm running thehoist that day, come in, and if you'd have cars on the hoist, you're to look atall the cars, *make sure your chains are all in place*. There should be a30-millimeter chain on each side of the car. There should be a figure eightgold chain on the coupler. Just do a general exam of the couplers. Any visible,noticeable damage, we take the cars out of service and put them in the shop andhave them repaired. Then we have daily checks that are written down, what we'reexpected to do as far as with the hoist. We check the brakes, we check the overtravel switches. We check the emergency tops. We check for accumulation. There'sa few tests like we call them roll back tests, in case the car would be comingout of the mine and roll back. The brakes would automatically set. It's in ourcomputer program on the hoist car. There's an overspeed, in case the hoist wouldbreak loose then travel faster than what it's allowed on the computer, that thebrakes would automatically set. 

 

Tr. 8. (*italics* added)

 

            He continued: 

 

Down at the mainhoist house is where the main cable comes off of that holds the hoist car in place.We're to go down there and check for -- there's a bar at the window that showsif there's slack in the rope. We check that and make sure it's workingproperly. There's an indicator underneath the drum that shows if there's slackunderneath the drum. If something would happen, that's to -- it willautomatically take the system -- shut the system down, so we need to check andmake sure that's working. *We check the key stocks down there*. Just checkthe fire extinguishers. It's a pretty detailed list of things that we check offevery morning, that we're looking and make sure that everything's safe totransport. Mainly, it's to check and make sure that the equipment is safe totransport men if we have to bring people out of the mine. But it's also tocheck in case something would happen. Another one of our checks would be tocontact the men on the bottom and make sure that we have communication with ourbottom people, because every time we move that car, we talk to the people onbottom and make sure that the track is clear. There's also a light audio andvisual alarm at the bottom of the slope. Our bottom guys check that, make sureit's working.

 

Tr. 9-10. (*italics* added).

 

            Mr. Williams has a federal hoist certificationcard. He has held that certification since about 2015 – 2016. Tr. 11-12. Williamswas the hoist operator on the day of the accident, July 17, 2020. Though notpositive, his recollection was that when he began work that day “the last shifthad left cars on the hoist. They were loaded and ready to be dropped in themine. So honestly, I can't remember if they was loaded before we loaded thecars ourselves. But anyhow, I checked, did all my checks like I do every day ...we checked every car to make sure that 

the chains were in place. Did a visual exam of the cars, anddid all my checks that I previously talked about, as far as checking the brakesand everything on the hoist car itself.” Tr. 12.

 

            As for checking the chains, Williams stated “[w]e'rejust basically making sure that the 

chains are in place. Sometimes the clevises, the pin thatactually goes through the clevis will back out. We like to make sure that thepin[s] are all secure. Looking for any obvious wear. If there would be a realthin chain that had been used for years, you noticed it was getting thin, thenyou would replace that.” Tr. 12-13.

 

Regarding the couplers, Williamsstated that “[w]e do a check of the couplers. The cars are already hooked up. It'shard to see the complete coupler, because it's coupled to another car. But it'sa general check to look and make sure that there's no obvious damage ofanything that would affect the safety or the working of the general cars.” Tr.13.

 

In terms of indications that there couldbe an issue with a coupler, Williams stated “[i]f you're just looking at thecoupler itself, and it's not coupled to another car, you would notice that thecoupler would be hanging down a lot farther than what it normally does. I thinkthe standard is the coupler should be 12 inches off the ground. There's a jawon the side of the coupler. If the cars aren't coupled, you can see that jaw. Sometimesthe impact of [ ] those cars coming together will break that jaw in half. Wewould replace that.” *Id.*

 

Williams, further describing thearrangement, added that “there's a hood on the car -- on the couplers, ... andthat's kind of hard to explain ... [b]ut when the cars go over the knuckle todrop down the slope, we're basically on a flatter area, and the cars would dropover that hump. And there's a hood on there that protects the cars from whenthey come over the knuckle, they could separate from one another if that hoodwasn't there. So we make sure those hoods are on every car.” Tr. 13-14. 

 

For cars that are coupled, he looksfor “obvious damage that it would have to be something that the cars would be-- had to be wrecked to tell that the coupler was bent 

or there was some type of extreme wear on the coupler. Youlook at just basically anything 

that would look out of place on the coupler to make it looklike it had some substantial wear 

or anything like that.” Tr. 14.  Supply cars are treated thesame way. Tr. 14-15. However, he then added “[w]e're just looking that thechains are in place. And looking at the coupler.” Tr. 15. 

Referring to the incident on July17, 2020, when the supply car disengaged from the brakeman car, overspeed wasan issue. Overspeed refers to situations where cars go too fast and when thatoccurs, brakes are activated. Tr. 17. However, Williams distinguished that fromthe event here. He explained that the hoist car didn’t take off. Instead, hepulled the hoist car and the supply cars up the hill to clear the switch. Oncesure that miners at the bottom knew there would be drop of the cars, he threwthe switch to begin the drop process. The cars are put in “automatic” mode, whichis done by hitting a button, at which point “the computer is actually droppingthe cars.” Tr. 19. As this process begins, Williams stated it’s the “lastchance right there to check and make sure that your chains are in place, tocheck and make sure that everything is proper on your cars. So we watch out thewindow as the cars go by the hoist house and [we] look[ ] at all of our chainsand everything.” Tr. 20. After passing the portal approach area, the carsautomatically enter the full speed area, which is supposed to be at 300 feetper minute. *Id.* Williams recounted that, almost immediately, he knew somethinghad gone awry, as he heard a bang and it sounded like he had a runaway train. Hecould not recall if he hit the emergency stop or if the computer activatedthat, but through a camera he “could see the cars flying” by. Tr. 21. Soonthereafter, Williams alerted mine foreman Rusty McHenry that he had “just losta trip of cars.” Tr. 22. 

            In what the Court views as a natural defensive reaction,an attempt to absolve himself from fault in the accident, Williams stated hetold McHenry “I know I did everything right. I know my chains were there. Everychain was on them cars. Because every time I walked past them cars, I look atthose chains. Because this is a major event. You know, you're talking about,you know, way over any type of weight that you can really fathom on a job aboveground. You're talking, I guess, hundred ton. And I said, Rusty, the chains areon. I know they're on.” *Id.*

 

This is an appropriate point forthe Court to express that it finds that Williams did look at the chains. TheCourt also determined that Mr. Williams was a forthright, credible witness. Distinctfrom that however are two different issues: Were the chains connecting thesupply car to the brakeman car of different lengths and was the left front keystop missing from the coupler on that supply car prior to the accident? 

 

            Following McHenry’s instructions, Williams didgo to see the brakeman car. There, he saw that the hoist car (which car, asnoted, has also been identified as the brakeman car) was “still in place. Itwas connected to the rope. ... [b]ut the coupler was still in place and [itscoupler was still] connected to the hoist car.”[15]Tr. 24. Asked if, when inspecting safety chains, he has ever looked at thelength of the chains, Williams responded that he has done that, but now thereis a different system in place. Tr. 25. The system was such that “any time thatyou coupled two cars together, there is two chains in place.” Tr. 26. Heasserted that “it's the very rare situation that there would be differentlengths of chain. Because when we welded them altogether, *they was all thesame length chains put on all the cars*.” Tr. 26-27 (emphasis added). 

 

Thus, the Court notes that, by thatremark, implicitly the Respondent knew the chains had to be of equal length. Addingto the importance that the chains be of equal length, Williams continued “[l]ikeif one gets damaged and replaced, somebody could replace it with a differentsize chain. I have come across that. And *if you would visibly notice that itwas a longer chain, you might see it dragging the ground more than what theynormally do. Then that would be a situation where you would cut that chain offand replace it with the right length chain*.” Tr. 27. (emphasisadded). Williams stated that on the date of the incident, he did not observedifferent length safety chains. *Id.*

 

            Turning to the issue of key stocks, Williamsdescribed it as “a solid square piece of metal. That could be a one inch by oneinch piece of steel. But basically a key stock is just a solid piece of squarestock.” *Id.* As applied to couplers, key stocks involve “those couplers have steel built around them. So where thecoupler, when it makes a turn, it will only allow the coupler to turn so far. Sothere's solid pieces of steel welded in between -- inside the car, basically,and at the end of that piece of steel, there's normally a piece of key stockthat is welded to the piece of steel.” Tr. 28. 

 

Williams expressed that, wheninspecting couplers before dropping cars, he is not looking for key stocks. Theyare difficult, but not impossible, to visualize. One would need to get down onhands and knees to see a key stock. “It would be like trying to see somethingthat's under the car, you know. It's something that takes a little bit to see,”as opposed to just a glance. *Id.* Williams denied seeing any missing keystocks on July 17, 2020. Tr. 29. Given that there were only six cars toexamine, not dozens, the Court believes that perhaps it was not too much toexpect that the key stocks be examined more closely, especially when consideredin the context of the event that occurred, the risk to safety presented by therunaway cars, and the time involved in cleaning up the wreck, and further, inthe Court’s assessment, that this was a repeat occurrence of the 2011 runawaycars accident. 

 

            On cross-examination, Williams, referring tospeed settings on the hoist, informed that there are two speed settings,operated by a toggle switch, between speeds of 300 feet or 600 feet per minute,with the latter, faster, speed only used when “pulling the fire boss out orpulling men or dropping men out of the mine.[16]It should never be [at the 600 speed] when you're dropping equipment in themine.” Tr. 32.  Williams shared the blame for having the speed set at 600; theperson running the hoist before him did not turn the speed down to 300 and whenhe “did [his] drop, [he, Williams] neglected to see that it was left at 600feet.” Tr. 33. 

 

            On the morning of the incident, the weight ofthe full trip was, at most, 94 tons. Tr. 34-35. The mine had previously beenwritten up for excessively filling the cars, as gravel was falling off the over-filledcars. *Id.* That problem, and the solution for it, occurred before theincident in this matter. 

 

            Turning to the subject that some clevises werewelded, Williams confirmed that it was the left side clevis which was welded.Tr. 36. The right side was not welded. *Id.*The pin in the clevis isthreaded. For the supply car which became detached, the left clevis was weldedbut “[t]here was no clevis or chain along the right side. Just the connectionpoint.” Tr. 37.    Asked about the arrangement when the supply car wasconnected to the brakeman car, Williams responded, “There's two chains on ourhoist car. It's not like our supply cars. So the chain from the hoist car onthe side that we're calling the right side, the clevis was hooked directly intothe connection point. On the left side of the car, which we've already spokenabout, there 

was a 30-millimeter chain hooked to the connection pointalready. So the chain that came from the hoist car to that supply car wasconnected into a link of the chain that was on 

the supply car.” Tr. 37-38. 

 

            The Secretary informed that his question wasdirected about the right side of the supply car. Williams answered, “The chainfrom the hoist car went directly to the connection point on the supply car.” Tr.38. It was connected with a clevis, but it was not welded. *Id.*Heconfirmed that on the right side, the chain connection consisted of a clevisinserted into the connection point on the right side. That chain connected tothe clevis and that chain was connected to another clevis, which was connectedto the brakeman car. *Id.* The clevis connected to the brakeman car waswelded. Tr. 38-39. 

 

Explainingthe different lengths in the chains, Williams explained “on my hoist car thathas the same chain as the right side had, but my clevis was hooked into a linkof the 30 millimeter chain that was coming off the supply car. I think therewas a discrepancy in two different lengths of chains. There wasn't twodifferent length[s] of chains. The chain on the right side was connecteddirectly to the connection point. The chain on the left side was connected tothe chain that was welded to the connection point on the left side. *That iswhere the discrepancy in the different length was*. Where the[y] ... aresaying there was different length of chains. So it was actually connected toanother chain. *So it did make it longer on one side than the other.*” Tr.40-41 (emphasis added). The Court would comment that the nuances of theconnections should not obscure the fact that, *functionally*, the chains *were*of different lengths. Williams admitted this.

 

            Importantly, Williams agreed that was the sourcefor the difference in the chain lengths, when the Secretary asked “And that wasnine inches longer; correct?” Williams responded, “I've never measured it, sir,but I would assume that is probably a good estimate.” Tr. 40-41. 

But again, the Court notes that the key point is that thechains were attached in such a manner as to create different lengths. 

Williamsagreed that the standard length of the chains is 11 (eleven) lengths. This isdone, he stated “just so all the cars will have the *same*chains onthem.” Tr. 42 (emphasis added). Though Williams asserted that no inspector hasever told him that the chains must be of the same length, he agreed that itwould be a good practice in that “*in case the cars come apart, that theywould**tighten up at the same time*.” Tr. 43 (emphasis added).Williams amplified that response, explaining that “[f]or the cars if they wouldseparate, that the chains would tighten up at the same time.” *Id*. To beprecise, Williams agreed that the purpose is “to share the load that the supplycars are putting on those chains.” *Id.*The Court notes that again thisis an acknowledgement that chains need to be of the same length. It iscertainly not an aesthetic thing. 

 

In fact, Williams agreed that ifthe chains are of different lengths, “one takes a load before the other, and ittakes a hundred percent of the load.” *Id.*And further that the chainsare designed so that each chain takes 50 % of the load, Williams agreed. Tr.43-44. *Williams agreed that if he observed two different chain lengths, oneside being longer than the other, he would want to address such a condition.*Tr. 44. 

 

            Returning to the subject of key stocks, Williamsstated he wasn’t familiar with the term “draft gear,” but he agreed that theend of the coupler assembly goes in the back of the car  Tr. 46-47. However, hecould not speak knowledgeably at all about the role that the key stock serves,mechanically. Tr. 47. The Court intervened at that point, asking Williams if heknew the purpose of the key stock, to which he responded, “I know that there'sa piece of key stock *welded*in there.”[17]*Id.*(emphasis added).

 

            As for Williams earlier remark about walking theslope, he stated that while debris was removed from the path of the tracks,nothing was removed from the slope. Tr. 50. Regarding safety concernsassociated with the incident, Williams stated there are manholes, but nocrosscuts until one gets down into the mine. Tr. 51. He did not know if itoccurred in this accident, but he stated that debris or supplies from therunaway cars could have ended up in the manholes. *Id.*

 

            Returning to the topic of key stocks, Williamsdescribed them as “just a solid square piece of steel. The ones that you'rereferring to, they're angled at each end, and they're welded into place.” Tr.52. Concerning to the Court, when Williams was asked if he found any key stockswhile he was walking the slope, he responded, he “[didn’t] recall seeinganything like that. But that’s really not what [he] was looking for. [He] wasjust throwing stuff out of the railway so the hoist car could pass.” Tr. 52-53.

 

            In terms of alerting miners before a load islowered, Williams spoke to the importance of that, as “[i]n the mornings,that's when our motor men goes down there. Obviously, that's where our suppliesgo to. So when the motor men need to come do their job in the morning, theymost 

likely, there could be motor men down there in the switchespulling their supplies out of the 

switches into the mine.” Tr. 54.  The switches are located “offto either side of the slope track after you get down into the bottom of thecoal mine. ... [they] lead[] [miners] from the slope track into other parts ofthe mine.” *Id*. Throwing a switch from the slope track will take one toanother track. *Id*. Motor men could be working at those switches. Tr.54-55.

 

*As to the speed of the runawaytrip, Williams noted that the slope is steep and the cars were freewheeling*.They were, in his words, “moving pretty fast.” Tr. 56. And on the day of theincident, there were miners working at the bottom of the slope. Tr. 57. Thereis a break room at the bottom of the slope, which room is also referred to as ashanty or hen house. Miners are to stay in that room when a trip is coming downthe slope. Tr. 58. While he could only speculate, Williams admitted that if onewas not in the shanty, one would “have to jump out of the road pretty quick toget away from it. But you would have to have a death wish to be in that area.”Tr. 59. Fire bosses also travel along the slope bottom. Tr. 60. 

 

It is fair to state thatWilliams believed that the procedures, their “safety protocol” that the minehad in place, protected against miners being in the slope area when loads aredropped. Those procedures, including alarms and lights have been noted earlier.**Williams did admit that a danger to safety was presented by “94 tons ofrunaway trip running down the slope.”** Tr. 64 (emphasis added).

 

            On redirect, Williams described, again, theconnection points and chains on July 17, 2020. Tr. 67-70. The Court observesthat, as this has been discussed earlier, there is no purpose served byrepeating that information.[18]Further, as noted, the paramount determination is that, at a minimum, functionally,the chains were connected in such a manner as to result in different lengths. TheCourt finds that such a condition, as explained further *infra*,constitutes a failure to properly maintain the chains because, to work asintended, they need to be of equal lengths.

 

            A point of clarification on re-cross examination,Williams agreed that it is the clevis, not the chain, that is welded to thesupply car. Tr. 71, Ex. P-7, Bates stamp 0053, with a time stamp of 7/23/2020at 10:12. Tr. 72. Williams identified the photo as the supply car that wasconnected to the brakeman car. Tr. 73. But again, to avoid muddying the waters,it should not be lost that, essentially, Williams agreed that the chain lengthswere not the same. Tr. 75. 

 

In what the Court views as aconcise summary of the arrangement, Williams was asked “considering that therewas a clevis welded in place on the left side of the supply car with a chainattached, and on the same side of the brakeman car, or the hoist car, there wasa welded clevis with a chain attached, the only way for you to connect, oranybody to connect the chains so you have a secondary connection, was withanother clevis, was it not?” Williams responded, “Yes, sir.” Tr. 77. Importantly,from that admission, Williams was asked if one has “to run the clevis throughone of the links of the chain?” Again, Williams agreed that was true. *Id.* Last,given his two affirmations, Williams was then asked, “*And so that will makeit longer than the connection on the right*?” Williams answered withoutequivocation, “*Correct*.” *Id*. (*italics*added).  

 

            The Court then asked some questions under thetopic of “back to the basics.” Williams agreed that the hoist car was connectedto the number one supply car. Tr 78. He then agreed that the connection pointsbetween the hoist car and the supply car consisted of the coupler and the twochains adding that there is the “figure 8 chain that goes around the couplers.”Tr. 79. Then the Court inquired about the ‘gold’ colored chain, which goldchain, Williams informed, did not break. Williams knew this because he saw thatthe clevis from the first supply car was still connected to the hoist car,which hoist car still had the gold chain wrapped around the clevis. Tr. 80. Williamsadded that the two clevises were still connected, and that is the idea behindthe gold chain. *Id.*

The Court then turned to Williams’testimony about the many checks that are done concerning safety issues, such asthe visual checks, inquiring if those checks were done solely by Williams. Hisanswer was that most of the time there is another hoist man with him duringthose checks. Tr. 81. Williams also informed that, following the incident, hedid see the car with the missing key stock. Williams’ opinion was that with theimmediate stop that occurred and the break which followed, the weight of thecar “made that coupler and the rubber piece that’s connected to the couplerpull out with such force that it tore all that steel up.” Tr. 81-82. Thus, itwas his view that the “key stock would have been rippedout with the force of the coupler being pulled out.” Tr. 82.

 

            The Court was struck by Mr. Williams’ remarkthat the first thing he said to Mr. McHenry was that all the chains were on andtherefore asked why he said that first. Williams answered that “Because when somethinglike this happens at the mine, you're concerned for your job, and I wanted toassure Rusty [McHenry] that I had done my job ... I did my job right ...my chainswere there.” Tr. 83. The Court views this as an understandable human reactionand it holds Mr. Williams in high regard in connection with this unfortunate,but avoidable, accident. 

 

            The Court then asked what lessons were learnedfrom the event. Williams responded that “there was a mistake on [his] part ... in[ ] leaving the switch in the 600 position.” Tr. 84-85. Williams then addedthat he learned that the different length of chains, “making one chain tightenup faster than the other” could have been a factor. Tr. 86. In further responseto the Court, Williams confirmed that he, with the help of another person,still examines the cars before a drop is made. However, key stocks are stillnot examined before a drop is made. Tr. 89. Thus, he agreed that the examinvolves looking at the couplers and the chains, not the key stocks, because itis “pretty difficult to see that piece of key stock.” Tr. 90.          

 

Following thetestimony of Mr. Williams, the Secretary called Michael Paul Snyder, who isemployed by MSHA as an engineer in their technical support office. Tr. 102. AlthoughMr. Snyder’s title is mechanical engineer, he does not claim to be one. Instead,he is a registered professional engineer (“PE”) in mining. Tr. 103. Hisexperience includes inspecting hoists and elevators. Snyder informed that ahoist needs five essential things: “[t]hey need to have overspeed protection,they need to have overtravel protection, automatic stop, the brakes on thehoist have to be capable of stopping the fully loaded system. And they alsoneed safety catches. Where in the case of a slope hoist, a brakeman car. Thatwould function as the safety catches.” Tr. 106. 

 

Within his years of experience, hehas investigated at least two incidents where slope cars separated from a brakeman(hoist) car. Tr. 118.****The Secretaryoffered Snyder as an expert in mining engineering and hoisting and he wasaccepted as such. He is not an expert about chains or couplers on hoist orsupply rail cars. That determination does not mean that his testimony on thosesubjects was without value.[19]As Counsel for the Respondent acknowledged, and the Court agrees, Mr. Snyder “cantestify as a fact witness about what his investigation and report was.” Tr.122-123. ****

** **

With thatissue resolved, Snyder testified that, in connection with MSHA’s investigationof this incident, he was at the Bailey Mine on July 23, 2020. Tr. 124. He sawthat 

the “whole coupler assembly came right out of that firstcar, [aka the 187 strap car, the first car that was connected to the brakemancar.]” Tr. 130. In fact, as also noted earlier in testimony, that coupler wasstill attached to the brakeman car after the accident. *Id.*Snyder viewedthat first strap car where it and the other cars ended up, at the bottom of theslope. Ex. P 7. His testimony included descriptions of photos showing thepocket where the coupler assembly had resided, before being torn out. Tr. 136. 

 

Speaking to the pocket of the strapcar where the coupler had resided, Snyder described it as “a rectangular pieceof steel that's welded to another piece of steel that has torn and flapped upaway from the front of the 187 car. ...[and] there's a block of steel, arectangular piece -- segment of steel on the inside right of the pocket. Andthen there's steel shaped like a U on the inside of the pocket ... [with thatsteel on the right side called] a key stock.” Tr. 137. There are supposed to befour key stocks in the coupler pocket. *Id*., and photo at P-7, page 2,7/23/2020 at 10:12, MSHA 0054. Snyder confirmed what other witnesses hadstated; that it is difficult to see the key stocks without getting on one’sknees. *Id.*

 

            Snyder then described the photo at page 3 of Ex.P-7, as looking into the opening “where the draft gear portion of the couplerassembly would [normally] reside.” Tr. 138. The ‘draft gear’ refers to theplates and the compression pads that are part of the coupler where it sits inthe pocket. This arrangement is to prevent the coupler from coming out. Snyderstated that key stocks are present in that photo. He identified three such keystocks: “two in the rear. [On the left side he stated seeing] “considerabledust present, and [he saw] a little bit of rust on the left key stock, and thensome shiny material on the right key stock. Shiny steel. [He saw] a key stockto the right, and [but he did] not see a key stock on the left front.” Tr. 139. 

 

            Asked about the rust and shiny spot, referringto the key stocks in the rear, Snyder’s answer was non-responsive, as he statedthose “would be used to provide support to the coupler assembly when cars areengaging together on the surface. Or when you have a coupled car pushing, thereis some give within the -- the draft gear itself, because it's comprised ofsteel plates with compression pads that do give it a little bit of cushion. They'renot 100 percent rigid.” Tr. 139. Counsel for the Secretary then asked again ifSnyder knew why the rust and shiny metal was present.  He then answered,“[p]resumably impact. You know, just use. Before this was last used, you know,steel on steel rubbing. In reference to the right rear key stock.” Tr. 140. Then,when asked about the absence of a key stock on the left front and ridges ofmaterial with a shadow behind them, Snyder stated he believed “that they'rewelded material welds that would have been applied when -- in order to attachanother key stock to this -- to this unit. ... as well as the right key stock.” *Id*.  

 

            On the important question of whether the keystock was present just before the accident, Snyder responded that was part ofwhat he was trying to determine when he looked at the car. He stated that he “*didn'tsee any evidence that the welds were disturbed to the point where we had anytype of recent metal failure in them. Nothing indicated -- nothing indicatedthat it was there before the accident.*” Tr. 141 (*italics* added). Supportinghis view, when asked if the key stock had been there immediately before theaccident, he responded that he would expect “if it were there, and you had,say, a weak weld or something like that. I would think you would at least seesome type of shiny metal similar to other areas of the car, this car, the metalpulled out, that would indicate a presence of something steel being attachedthat was torn off or removed. I did not see any evidence that indicated thatanything was there.” *Id*. Thus, it was Snyder’s view that the key stock had not been present immediately beforethe incident. 

 

Snyder wasthen directed to the photo with the time stamp of 7/23/2020, at 10:13, Batesstamp 0056. He identified it as “the right side of the -- of the 187 car, asyou're looking at the car. As evidenced by the blue pin in the silver paint onthe shackle clevis.” Tr. 142. Asked if he could tell if the coupler was new atthe time, Snyder remarked “there had been a repair to this at some point.” Tr.143. To him, “[i]t looks like any old piece of key stock was taken here andwelded in. That's not something I would expect from a manufactured unit thathas been in service as new.” *Id.*

 

Addressing the photo showing thesecondary chains, MSHA 0057, with the date/time stamp of 7/23/2020 at 10:19,Snyder expected to see only two chains, not three. He didn’t know what purposewas served by the additional chain. Tr. 147. Importantly, Snyder, speaking tothe two chains, stated that “[t]he connection on the right of the strap car had11 links of chain, as well as the chain on the left. *However, the chain onthe left also included one shackle and two additional links of chain. So it was longer than the secondary on the right*.”Tr. 150. (emphasis added). He added that “[t]he shorter one was 52 inches, andthe longer one was 61 inches, as measured.” *Id.*

 

            Snyder saw no fresh metal in the photo on page22, with the time stamp 10:55 and the Bates stamp as MSHA 0074. That photo isof the left side of the pocket, showing the left *rear* key stock inplace. He brushed away the dirt to see the existing welds and the left rear keystock. Tr. 164. Snyder saw no fresh metal in the photograph and further saw noevidence to lead him to believe that the left front key stock was presentimmediately before the accident. *Id*. 

 

            Another photo of note has a time stamp of 13:16,MSHA 0107. It is a picture of one of the shackle clevises from the brakemancar, showing the remnants of the pin that failed when the secondary took theload. Tr. 179-180. The other clevis shackle on the brakeman car also failed. Tr.181, time stamp 13:16, MSHA Bates stamp 0109. 

 

            Reaching a summary of his investigation, Snyderexpressed his “understanding of the sequence of events that occurred from thetime that the fully loaded trip started being lowered ... down the slope.” Tr. 186.Referring to Snyder’s testimony at the point when all the cars were set to godown the slope, the trip went from 50 feet per minute up to 600 feet perminute, a rate far more than the 300 feet per minute it was to travel. Thatrate activated the electronic overspeed of the hoist, causing the brakes on thehoist to set. The brakes come on to try and stop the load but when thathappens, “the draft gear -- the coupler assembly pulls out of the strap car,and at this point, at this point in time, the slack has not been taken up yet. Soas -- as that's occurring, the slack starts taking up, because the secondarychains are of unequal length, the first one loads up, and to the point where itfails. The coupler has already pulled out of the car. The right side chain tothe right of the strap car looking into the mine, that fails. And then thesecondary from the left side takes up the load, and it also fails. So the tripcontinues down at an uncontrolled rate, and miraculously winds up at the backof the mine.” Tr. 188-189.

 

            Questioning by the Secretary then returned tothe subject of key stocks, asking about their purpose. Snyder responded “[w]ell,the best example is looking at the rear key stock because that, when you pushsomething, that stops it. That's what you have in place. That stops movement ofthat assembly further into the pocket. And in the same fashion, front keystocks prevent it from being pulled out of the pocket.” Tr. 189-190. 

 

            When asked if the key stocks are missing, doesthe coupler hold into the car, Snyder responded “[i]t can hold -- up to [a] point,it can hold. But this was a shock loading event.” Tr. 190. Without a key stock“there's enough room for that draft gear to get out of it.” *Id.*

The Court then inquired, “[w]hatholds the coupler in place apart from the key stocks ... what secures thecoupler?” *Id*. In that regard, the Court noted that Snyder informed thatunder nonstress conditions, the coupler would still stay in place and thereforeit wanted to know why that is so. That is, the Court was asking how does thecoupler remain secured? Tr. 191. Snyder’s answer was nonresponsive as heinformed that even with a key stock missing and one was dragging the car aroundthe yard, another key stock may be able to hold and grab the coupler. *Id*.The Court tried again and then Snyder informed that the coupler was *not*designedto stay in the pocket *without the key stocks*. *Id.* Making sure itwas clear about Snyder’s statement, the Court asked “[b]y design, the key stockis essential -- is it fair to say it's essential for a coupler to be securedwith key [ ] stocks.?” Snyder answered, “Yes, sir.” Tr. 191-192.

 

Snyder was unequivocal that when ashock load occurs, as happened here, the secondary connections have to sharethe load. Consequently, the chains must be of equal lengths. As he stated, “Youcan't have unequal lengths. You don't have even a chance unless they're thesame length.” Tr. 198. But because the chains were not of equal length, whenthe shock load occurred the pins on the shackles failed. Tr. 198-199.

 

Based upon his investigation andhis engineering background, Snyder’s view was that the left front key stock wasnot present at the time of the incident. Tr. 199. In his view, the missing keystock “absolutely” contributed to the incident. *Id.*In terms of thesequence of the events, Snyder stated that the coupler came out first. Afterthat, with the mismatched chain lengths, the shackles failed. Tr. 200.

 

Questioned about his report, Ex.P-9, MSHA 0242, under cross-examination and, within that report, the remarkthat “no markings or failed portions of weldments were observed indicating thatthe left key stock may not have been in place when the accident actuallyoccurred,” Snyder agreed that the key stock is not a coupler, but it is thedevice that holds the coupler in place. Tr. Tr. 205- 207. Snyder reaffirmedthat he took measurements, finding that one chain was 61 inches long and theother 52 inches. Tr. 209-210.

 

            Snyder held to his view that the key stock wasnot present when the incident occurred, stating that it was not speculation onhis part “because [he had] no evidence of anything fresh on the weldment, whenit was actually cleaned looked at and, you know, there was nothing there.” Tr.226. However, he did allow that “if the weldment had been rusted and broke off,[he] wouldn't have any indication of a weldment or disturbance there.” *Id*.From that he agreed it was possible that the key stock could have been in placeand the weld may have been rusted. Tr. 226-227. 

 

On day three of the hearing,December 2, 2021, Russell McHenry testified. Presently,  heis the assistant superintendent. Before that, for about seven years, he was themine foreman.  Vol III, Tr. 6.[20]McHenry was notified when the accident occurred on July 17, 2020. Tr. 12. Thehoistman, Williams, informed him that the hoist switch was on 600 feet perminute and had tripped off on overspeed. Tr. 14. Later, McHenry stated whatothers had said, that the hoist switch had been inadvertently left at 600 feetper second, which he believed caused the overspeed condition. Tr. 20. When hewent to the bottom of the slope he checked the safeties – lights and siren. Tr.14. He also looked at the brakeman car, where it was found that the cleviseswere broken. Tr. 15. McHenry was then asked about July 23, 2020, the date ofMSHA’s second visit to the mine, and Ex. P-9 at page 0242. Along with others,including MSHA inspector Vargo, there was an examination of the wire rope andhoist equipment and the group also looked at the cars on the bottom. McHenryrecalled that they also looked at the coupler pocket on the furthest outby car[i.e. the No. 187 supply car]. Tr. 17. In that regard, he stated, “looking atthe car, the left -- I believe it was the left hand key stock was at that pointmissing. You could see 

where the weld and things was there, but, you know, we triedto determine what was the failure in the system. And what we did notice it wasmissing.” Tr. 18.

 

            McHenry then stated that they “did have guyslook for the key stock” up the slope, but he did not believe anybody everlocated it. *Id.* He described a key stock as “just a square or just apiece of metal that would have been welded inside the car, inside the couplerpocket *as a stop*.” Tr. 20. (emphasis added). 

 

            As for the safety chains, McHenry stated thatthey were not broken, “they were actually still the -- coupled to the car onthe bottom. It had broke the clevises on the brakeman car. *They*(they,meaning the chains) *were all equal lengths*, and the -- one of thebrakeman car chains had actually -- was coupled to the chain on the -- thewelded chain on the car.” Tr.18. (*italics* added). The Court notes thatwhile McHenry’s remark that the clevises broke, is true, it sidesteps that theybroke because the chains, one being longer than the other, caused them tobreak. There is substantial credible evidence that the chains were not of equallength, either functionally, or as secured.

 

            Further speaking to the allegation, regardingCitation 7033990, that the safety chains and safety chain connection pointswere not properly maintained, McHenry restated that “none of the safety chainswere broken, nor the connection points on the cars.” Tr. 21. He added that byconnection points, he meant “the welded pieces of the cars were damaged.” *Id*.What broke were the “two clevises that were attached to the brakeman car,” notthe chains. *Id.*

 

            Asked about the length of the safety chains, andthe allegation that the left inby safety chain measured approximately 52 inchesin length and the right inby safety chain measured approximately 61 inches inlengths, McHenry answered that “[i]t wasn't the safety chain themselves. As [he]said before, *on that side that was longer*. The safety chain for thebrakeman car was brought up and attached to the safety chain on the car itselfwhich extended the length of the overall system.” Tr. 21-22.

 

            Asked if he had ever heardbefore this incident about the length of safetychains with anybody, McHenry responded that he didn’t “believe so.” Tr. 22. Norwas he aware of any literature or documents about the length of safety chains. *Id.*

 

            Turning to Citation No. 7033991 and theallegation that alleges that the left front key stock inside the coupler pocketwas missing, and that there were no marking or weld material on the pocketwhere the key stock should have been located, McHenry stated he did not agreewith that claim, “[b]ecause there was. There was key stock. It was welded oneither side. On the internal side and the[ ] external side, there was weldmentleft.” Tr. 22-23.

 

            Upon cross-examination McHenry, made importantconcessions, agreeing that the safety chains were all 11 links long and agreeingthat the purpose is to ensure that the secondary connections are of equallength and *that is to ensure that those connections share the load of anycar that becomes uncoupled, and further agreeing that if those connections areof unequal length, the load is not shared*. Tr. 25. (*italics* added).Then, McHenry agreed that “[w]ith the left side secondary chain connected tothe welded chain on the supply car, that made it longer than the one -- thesecondary connection on the right; correct,” answering “[y]eah *with the twochains coupled together made it longer*.” *Id.*(emphasis added). 

 

            Turning to the weldments in the pocket and hisremark that they were there, McHenry, when asked to confirm that he saw nofresh breaks where it looked like metal had broken away, answered “[t]o behonest with you, where the cars had crashed on the bottom was all covered indust and dirt, and it was -- nothing was -- looked fresh or clean. I mean, Icouldn't tell.” Tr. 26. 

 

            Then McHenry was asked about no one finding themissing key stock when they were looking, and he confirmed that, to his knowledge,no one*found it* and *it had never been recovered*. Tr. 26. McHenryalso agreed that the secondary chains are a safety feature but admitted thatsafety feature did not work as “there was a failure in the coupler pocket, andit failed the safety chain on the one side -- failed the clevises on the car.”Tr. 27-28. Moreover, he admitted that he doesn’t know if the key stock waspresent immediately prior to the accident.  Tr. 28. McHenrythen acknowledged that he was present when Mr. Snyder from MSHA’s technicalsupport investigated the site and that he observed “him use a wire brush toclean off the 

portions of the pocket.” *Id*. When Snyder used thewire brush for that cleaning, McHenry admitted that he didn’t see any freshbreaks in metal where those weldments were, answering  “I don't believe so.” *Id*.

 

            On redirect, Counsel for the Respondent asked McHenryregarding the subject of the key stocks and the ability to see any fresh breaksin metal, “if the weld was rusted, would [he have been able to] see a freshbreak.” McHenry answered that it depended on the way it's broke. Tr. 31. Therust could be internal and therefore not visible. In such a case the only wayto determine if there's a crack in metal is with an X-ray or some like process.Tr. 32.

 

            In another round on the same issue, upon furthercross-examination, McHenry agreed, with reference to Ex. P-7, and the photo withtime stamp 10:12 and Bates stamp 0055, identified as the pocket of the No. 187supply car, that the rear key stock has a shiny bit of metal, but on the frontkey stock where the weldments appear, there was no shiny spot. Tr. 33-34. Then,staying with the same exhibit, but directed to the page with a time stamp of11:03 and Bates MSHA 0078, McHenry confirmed that photo depicts the leftweldments and that he saw no shiny metal. Tr. 36. He also agreed that if a weldwere to fail, there would be some indication of metal tearing away and freshmetal. *Id.*McHenrythen admitted that “[n]o, [he] didn’t see anything that something immediatelyhappened here.” Tr. 37. 

* *

**Notyet over, on redirect McHenry, upon being directed to Ex. P-6, with a 7/17/2020date and a time stamp of 17:28, Bates stamp 0051 and described by counsel as an“accordion looking thing,” identified it as “a series of rubber and steelplates that absorb the shock of the coupler,” which he believed is called the“draft gear.” Tr. 38. For this, directed to the square plate at the beginningof the draft gear toward the brakeman car, McHenry was asked if he saw “anydamage on the front plate on the front of that draft gear that appears fresh?” *Id.*McHenry responded yes, that “it appears like there's a strand at the bottomcoming up at least three-quarters of the way or further that is worn -- it'sfreshly worn metal,” and he confirmed that it is on the same side of the draftgear that would have been in contact with the left key stock. *Id*. 

 

            The Court asked if McHenry, as the general mineforeman, and after speaking with Consol people, came to a conclusion as towhether the key stock was missing prior to the incident. McHenry responded thathe believed “the key stock was there, and the extra force caused by the -- itrunning at 600 feet per minute, when the stop happened, it ripped it off ofthere and turned that coupler pocket sideways, and as a result, broke thesafety chains.” Tr. 43. However, when asked if any Consol person expressed adifferent point of view on the issue of whether the key stock was not present,he responded, “I don't believe so.” Tr. 44. The Court dismayed by the answer,continued, “[w]ell you say you don't believe so. That would be something you'dremember, is it not?” McHenry responded, “I would think so, yes. But I don'trecall anyone mentioning that that key stock was missing prior to or anythinglike that.” *Id.*

 

            The Court, continued, asking, “[s]o what is thebasis for your opinion that the 

key stock was there prior to the accident?” Tr. 44.  Hisresponded it was on “[w]hat [he saw] on the base of this metal here that therewas wear there. And if that was not wore -- I mean, if that was rusted, theonly way for that to be wore there and be shiny is if it was rubbing againstsomething.” *Id*. McHenry added that he was referring to Ex. P 6, MSHAphoto 0051 when he made that remark, elaborating that Consol “saw wear on thefront of that, like it was there, like, you know, there was damage to the frontof that. Like something was there, and it -- something happened there at thatpoint. It wasn't all rusted.” Tr. 45.  

 

            The Court then asked of McHenry if Consol “madea *thorough* investigation of the area to find that key stock,” to whichhe responded, “*Yes, sir*,” and then confirmed that Consol did not find akey stock, answering “[*d*]*id not, no sir*.” Tr. 46. (*italics*added). 

 

The matter still notfinished, on further re-cross-examination, McHenry conceded that if the keystock had broken off, that would have happened closer to the knuckle and that,not anywhere near the 1,700 feet of the slope, and that the area around theknuckle would only be a few hundred feet. Tr. 49. Thus, he conceded that thekey stock, if it broke away at the time of the accident, it would have been“[i]n that general area.” Tr. 50. Later he admitted that if it broke away atthe time of the accident, it should have been somewhere around there. Tr. 52. 

 

The obvious and important point ofthose questions is that the area to search for the key stock was not lengthy. 

 

McHenry confirmed that he hadpeople look for the key stock, though he could not beprecise if that direction was immediately after the accident. *Id.* As towhether he directed that the search be focused on the area where the cars brokeaway, he could not recall. *Id*. Further, in the area where one wouldexpect to find the key stock, if it had come off at the time of the accident.McHenry described the area as having a “concrete base” with some gravel fromthe cars. Tr. 51. 

 

The Court notes that, given themodest area to search, if the key stock had indeed torn off during theaccident, one would have expected to find it. He then admitted that the keystock does not look like gravel, as it is of rectangular shape, about six toeight inches long and about an inch or two thick. Tr. 50-51. Significantly damagingto the Respondent’s contentions, McHenry agreed, half-heartedly, that findingthe key stock to show that it existed and was in place on the car prior to theaccident would be important evidence for Consol, answering “I guess so, yes.” Tr.51. 

 

Michael Craig Tennant wasthen called by the Respondent as a witness. He has been employed by Consol for morethan 20 years. In 2008 he was promoted to safetysupervisor, a position he held at the Bailey Mine at the time of theaccident in this matter. Tr. 56. In that capacity, his responsibilities includeaccident investigations. Tr. 59. Tennant then related his version of the eventson the day of the accident, which version as to the basic facts, was in linewith the other witnesses in this proceeding.[21]Tr. 60-61.

 

            Mr. Tennant did offer his view regarding the twosafeguards which formed the basis for two of the citations in this case. WithCounsel for the Respondent asserting that Citation No. 7033990 was issued“based on the length of safety chains,” he asked Tennant if safeguard No.7070545, per Ex. P-2, addresses the length of safety chains. Tennant respondedthat it did not, but rather the “condition of the metal eyelets used to connectthe safety chain.” Tr. 68. 

 

            Respondent’s Counsel then directed Tennant tothe condition or practice of the safeguard, reading from it that “this is anotice to provide safeguard requiring all rolling stock to have properly maintainedsafety chains and safety chain connection points.” Tr. 69. Having read thatpassage, Counsel asked Tennant if there “[w]as any issue with maintenance ofsafety chains in the July 17th of 2020 incident?” Tennant responded, [t]herewas not.” *Id.* When next asked “[h]ow about the safety chain connectionpoints,” Tennant gave the same response, “[t]here was not.” *Id.*

 

            The Court would comment again that, while Mr.Tennant and other witnesses who testified in this proceeding, as well ascounsels for the parties, are free to express their views of the scope of thetwo preexisting safeguards, as well as the new safeguard issued in the wake ofthe accident at the mine, ultimately, at least in the first instance, it is upto the Court to rule on these issues. It is noted that Mr. Tennant went on toopine on more of these safeguard related issues. Tr. 69. The Court takes thesame stance on those views as well.

 

Turning to the citation based on SafeguardNo. 7070546, requiring properly maintained couplers, issued on October 25,2011, per Ex. P 4, and the citation based on that, Tennant was asked whether,regarding that safeguard’s requirement “that all slope brakeman car and allrolling stock will be provided with properly maintained couplers,” if thecouplers associated with the accident were “properly maintained.” Tennantresponded that they were maintained properly on July 17, 2020. Tr. 70. 

 

Asked about a key stock, Tennantdescribed it as “a piece of metal that is installed inside the coupler pocketto hold a set of baffles *that ultimately holds the coupler inside the car*.”Tr. 70-71. (*italics* added). 

 

Respondent’s Counsel continued withhis questions directed at Tennant’s take on the safeguards in this matter,noting that Safeguard No. 7070546 “also requires all couplers on rolling stockto be examined prior to being hoisted and prior to being transported throughoutthe mine.” Tr. 71. Tennant’s view was that the term ‘examination’ required“[t]o make sure that the couplers seat together. There's -- they're a --they're designed to snap together to not allow them to come apart. That wouldbe the -- the exam that would need to be done to make sure that those couplers-- one coupler can be attached to another.” *Id*.  

 

When then asked if key stocks wouldbe part of such an examination, Tennant expressed that would not be requiredunder the safeguard, because it would be impractical since most, but not all ofthe rolling stock would have to be “flipped upside down to see all of the keystocks involved with holding the coupler pocket in place.” *Id.*

 

Tennant agreed upon furtherrecross, that examining safety chains is part of the car inspection process.Tr. 74.  He also agreed that the shackles or clevises are part of theconnection with the safety chains. *Id.* As to the length of the chains,when asked if they are “all 11 links long,” he responded, “[t]hey are *now*,yes, sir.” Tr.75. (*italics* added). As to whether it is important thatthe chains be the same length, he answered “I would say yes, sir.” *Id.*Healso agreed that being the same length is important “because they need to bearthe load equally in the event that the primary connection fails,” adding,“[g]oing down the slope, yes, sir.” *Id.*

Continuing, when asked thefollowing: “in this case, the safety chain was on the left connection lookinginby. That safety chain was connected to the links of another safety chain ...[a]nd that made it longer than the one on the right ... [s]o when the accidentoccurred, the right side connection, after the coupler failed, the right sideconnection loaded first ... [a]nd that bore 100 percent of the load ... [t]hen thatfailed ... [a]nd then the other side, the left side that was longer, then thatbore 100 percent of the load,” Tennant agreed with each of those assertions. Tr.75-76. He also agreed that at least post the accident he would not permitdifferent lengths for the chains. Tr. 76. Further, he admitted that the purposeof the chains is to stop the cars if the primary connection failed. Tr. 77. Previously,he had thought, incorrectly, that one chain would suffice. *Id.*

 

Regarding the key stocks, Tennantexpressed that, without turning the cars upside down, one couldn’t see all thekey stocks. *Id*. However, he admitted that he has *never* done suchan inspection of the key stocks without the car being upside down, and so hisremark about seeing key stocks when the car was not upside down was“speculating” on his part. Tr. 78. It was his understanding that Consol neverexamined or inspected key stocks. Tr. 78-79. He informed that he simply did notknow if the missing key stock was present before the accident, and to hisknowledge, no one at Consol found it. Tr. 80.

 

Then, adramatic moment occurred in the hearing, when the Court commented that Tennant,as the mine’s safety supervisor, would be the person who would know if a keystock was found. Tennant then reversed his previous statement, this time responding,“I believe that there was a key stock found, Your Honor. But I'm not sure wherethat key stock came from. A key stock is just a square piece of metal. Iwouldn't know where a square piece of metal came from. I believe there was onefound on the slope track when they were initially walking down. I'm not sure ifit was a key stock or something that came off of a car. They're not anydifferent than any other rectangular piece of metal.” Tr. 80-81. 

 

As Tennantseemed to back off his earlier remark, the Court noted that he “just said aminute ago, did you not, that a key stock was found.” Tennant then reaffirmedhis revised remark, stating “[t]o my knowledge it was. It was not given to me.”Tr. 81. Yet, surprisingly, upon being informed that a key stock was found,Tennant stated he asked no questions about it. *Id.* In fact, displaying aremarkable lack of curiosity, he never even looked at it. 

 

            Tennant then modified his remark again, statingthat “[s]omeone told [him] that they found a piece of metal on the slope trackthat *they called a key stock or that resembled a key stock*,” but hecouldn’t recall who told him about this. Tr. 81-82. (emphasis added). 

 

When then asked whether “Consolretain[ed] the key stock” he answered he “did not retain that key stock, so I'mgoing to say no.” Tr. 82. Seemingly confused why it would be important toretain it, Tennant offered “[a]t that time, it was not our concern to show akey stock to someone. It was our concern to figure out what caused thisincident, and figure out how we can prevent it in the future.” *Id*.  

 

The Court cannot help but commentthat Tennant’s answer was perplexing, as a missing key stock could have been asignificant aspect in Consol’s task of figuring the cause of the accident. Nevertheless,Tennant had a different take on the value of the key stock that was, allegedly,found in determining the cause of the accident. When asked if “it would beimportant to know whether that key stock was there before the accident,” heresponded only that “[i]t would be -- it would be handy to know that, but itwouldn't change what *we* found in our investigation.” Tr.82 (emphasisadded). Yet, he conceded its value. When asked if it was correct that “if thatkey stock wasn't present immediately prior to the accident, then thatconnection would have been compromised,” he answered, “yes sir.” Tr. 82-83. Tennantalso disclosed that the key stock or, as he alternatively described it, a pieceof metal, was found on the day of the accident. *Id.* He then admitted tobeing aware that there was a 103(k) order that had been issued “to preserve the scene of the accident on that date.” Tr.83. He also admitted the piece of metal would have been considered to beevidence, and important evidence at that. Tr. 84.

 

At that pointin the proceeding a sidebar conference was held at the request of the Secretaryof Labor. Attorney Kooi, for the Secretary, stated “this is the first timewe've heard 

anything about, you know -- anything resembling a key stockmissing, being found. This wasn't 

preserved by Consol. There was an active 103(k) order at thetime of the accident -- or not at the time of the accident. Shortly after theaccident, issued verbally by the inspector. Consol did not preserve theevidence.” Tr.87. For that reason, the Secretary moved for “an adverse inference that the key stock was not found andwas not present at the time of the accident. Because they didn't preservethe evidence that they claim to have found, this one witness, and it's integralto the case, and it should be no surprise that that is a key piece of evidence.And they were under an obligation to maintain it. If -- not only because of the103(k) order, but because it was an accident, and the -- you know, it was veryeasy to anticipate litigation stemming 

from this.” Tr. 87-88. 

 

The Respondent countered that the103(k) order permitted Consol to clean up the debris. And that Tennant “neverfollowed up on it, because at that time, there had not been an allegation orany investigation that a key stock was at issue. That investigation didn'tcommence until six days later.” Tr. 89. The Court is not impressed with theargument advanced by counsel for Consol because it runs counter to the purposeof the 103(k) order. The government can’t be clairvoyant and therefore it couldnot know of the significance of a key stock moments after the accidentoccurred. The Court made an initial adverse inference but advised that therewould need to be a motion filed with regard to it and, following a response tothe motion, it would issue a final ruling.

 

Following the sidebar discussion,testimony from Mr. Tennant resumed, with Attorney Dennison asked the witnessabout the (k) order, including the day and time it was issued, and the sameinformation regarding modifications of it. Tr. 100-101. Though Tennant recalledsomeone mentioning a key stock he could not recall who told him that. Tr. 103. Askedif he had any reason to take notice of that information at that time, Tennantresponded he did not, informing, though he was then the mine’s safetysupervisor, he didn’t know what a key stock was. Tr. 104. Yet, with thatperplexing answer, and that he felt no need to ask questions upon being told ofthe key stock, he then stated “and there was no reason to believe that a keystock had anything to do with the incident.” *Id.* That is a remarkableanswer: after asserting he didn’t know what a key stock is, and that he wasbereft of such knowledge, and yet he was still able to conclude that “there wasno reason to believe that a key stock had anything to do with the incident.” *Id.*

 

            The Court taken aback by Tennant’s responses,asked, “[y]ou mean to say, sir, that someone tells you there's a key stockfound, you didn't know what a key stock was, and you didn't say, well, what doyou mean by a key stock? You didn't ask?” *Id*. He answered that he didnot ask but he tried to explain the omission by adding that there was a lot ofmetal and debris along the slope and “it did not sink in that key stock was thatbig of a deal.” Tr.104. Regarding that remark, the Court observes that compliancewith MSHA’s 103(k) order was not dependent upon Consol personnel determiningwhat was a “big deal.” 

 

**The Court’s Ruling on Secretary of Labor’s Motion for anAdverse Inference, namely that a key stock was not in place at the time of theaccident. Sec’s Motion at 12, 13.**

** **

            This very interesting issue arose in the contextof the hearing in this matter involving allegations of two violations ofnotices to provide safeguards. The adverse inference sought by the Secretary isthat a key stock was not in place at the time of the accident and that themissing key stock was not found. Sec’s Motion at 12, 13. 

 

Though described above, it isuseful to summarize the relevant facts. One of the safeguard notices isinvolved with the Motion for an adverse inference, Safeguard notice No.7070546. That safeguard notice informed that “it was determined that the coupler *and mounting bracket* on the SlopeBrakeman Car is not being maintained.” *Id.*(emphasis added). Thenotice summed up its requirement that “that the slope brakeman car and allrolling stock will [be] provided with properly maintained couplers.” *Id.*Itis plain from the text of that notice that it pertained to the determinationthat the coupler *and its mounting bracket* were not being maintained. Inthis instance, after the accident occurred, it was found that the No. 187supply car was missing its left front key stock. 

 

The Secretary’s Motion begins, asit must, with a brief summary of the undisputed facts, to wit that, on July 17,2020, around 10:30 a.m. “a non-injury accident occurred at Respondent’s BaileyMine on the Crabapple slope track ... [when] six fully loaded supply carsweighing a total of approximately 94 tons became disconnected from the brakemancar or hoist car that was lowering the slope cars into the mine via the slopehoist. ... After they disconnected, the six supply cars traveled uncontrolled ata high speed from approximately 100 feet inby the slope entrance forapproximately 1,600 feet until the supply cars crashed into the coal seam atthe bottom of the slope track.” Motion at 2. 

 

The same day, as noted by theSecretary, a 103(k) Order (“Order”) was issued on July 17, 2020 at 1357 (1:57p.m.), which was about 3 1⁄2 hours after the accident event. That 103(k) Orderannounced that it was being issued to protect the safety of all persons on-sitebut also “including those involved in ... the investigation of the accident.” Importantly,under the Order it provided that “[t]he Mine Operator shall obtain priorapproval from an Authorized Representative of the Secretary for all actions torecover and/or restore operations in the affected area. Additionally, **themine operator is reminded of its existing obligations to prevent thedestruction of evidence that would aid in investigating the cause or causes ofthe accident.”**Motion at 2, and Ex. P-8 at MSHA0133 (emphasis in original).

 

            It is true that, following the issuance of theOrder, it was modified twice, once, about four (4) hours later, to “permit theOperator to start to clean *debris**and supplies* on the slope trackbetween the bottom of the slope and the inby number 4 slope bottom switch” anda second time, about an hour and a half following the first modification, “topermit the Operator to clean the slope track and slope bottom track of *debris*prior to restoring the slope track and hoist car to it's [sic] normal use ofoperations.” *Id*., Ex. P-8. (emphasis added). 

 

            It is undisputed that a coupler connects eachslope car to one another and that, when the accident occurred, the coupler for supply car No. 187, which was joined to the coupler on thebrake car, failed, coming out of the supply car’s coupler pocket. Couplers areheld in place in the coupler pocket by key stocks. There are four key stockssecuring each car’s coupler; two are in the rear, and two are in the front,with both on the left and right side of the coupler. Key stocks act like asandwich, fore and aft, on the coupler as it sits in the coupler pocket. 

 

In support of its motion, theSecretary cited *Lincoln Leasing*, 37 FMSHRC1551 (July 13, 2015) (ALJ). There, the Secretary sought an adverse inference“based on Respondent’s failure to produce pre-operational examination recordsfor the two weeks prior to the event in question.” *Id*. at 1553. Regardingthe principle, Judge L. Zane Gill stated: 

 

“It is well-recognized that if aparty has control over a writing or other type of evidence, which is relevantto an issue, and fails to produce the evidence, an inference can be drawn thatthe evidence would be adverse to the party.” *IO Coal Co., Inc.*, 31 FMSHRC1346, 1359, n.11 (Dec. 2009). Indeed, ‘[w] hen a party intentionally destroysevidence in its control, a judge has discretion to draw an adverse inferencethat the evidence destroyed would have been unfavorable to the destroyingparty.’ *Dynamic Energy, Inc.*, 33 FMSHRC 1998, 2006-07 (Aug. 2001) (ALJPaez) (citing *Kronsich v. U.S.*,150 F.3d 112, 126 (2d Cir. 1998)). *McCormick on Evidence*provides that “[w]hen it would be natural under the circumstances for a partyto ... produce documents or other objects in his or her possession as evidenceand the party fails to do so, tradition has allowed the adversary to use thisfailure as the basis for invoking an adverse inference.” 2 *McCormick on Evid.* § 264 (6th ed. 2006)at 220-21. Additionally, the Commission has held that an Administrative LawJudge must address missing preshift examination reports because the operatorhad them within its control and should have anticipated litigation. *See IOCoal Co., Inc.*, 31 FMSHRC at 1359’” *Id.*at 1553.

 

            Finding that it was “troubling and highlysuspect that Lincoln Leasing was able to produce reports for only three days,yet its pre-operational records were kept in a bound 30-day book,” Judge Gillconcluded that “[w]hen Lincoln Leasing destroyed or misplaced thepre-operational reports, it had control over the reports and knew it had anobligation to preserve them in anticipation of litigation. The Secretary isentitled to an adverse inference ...”*Id*. at 1554. The judge limited theadverse inference to the citation for inadequate brakes. *Id.*

* *

**In a similar case, cited by Judge Gill inhis *Lincoln Leasing* decision, Judge Alan G. Paez also made an adverseinference in *Dynamic Energy, Inc.*, 33 FMSHRC 1998 (Aug. 31, 2011), whereRespondent, Dynamic, had missing preshift reports regarding a portal bus andCAT Loader. Judge Paez stated: “[i]n light of Dynamic’s unexplained andquestionable selective retention of records, [he] determined that when Dynamicdestroyed the preshift reports, it knew it had an obligation to preserve themin anticipation of litigation. .. [b]ecause operators are required to maintain preshiftreport records for 30 days ...” *Id* at 2009-2010. He therefor drew theadverse inference that concluded that “the preshift reports would have shownthe defects to have existed.” *Id.* at 2018.

 

** **

**Respondent’s Response in Opposition to the Secretary’sMotion for an Adverse Inference**

** **

Respondent maintains that theSecretary has not established that Respondent spoliated evidence. Response at2-3. Respondent contends that it had no obligation to preserve the key stockbecause “at the relevant time, Respondent did not know that the key stock wouldassist in investigating the cause or causes of the incident ... [and Mr. Tennant,Respondent’s safety supervisor] testified that he had no reason to believe akey stock had anything to do with the incident at the time of theinvestigation.” *Id*. at 3. 

 

To this, the Court responds that,particularly given Mr. Tennant’s own description of his lack of any knowledgeabout key stocks, it was very clearly not for him to decide what evidence wouldassist in investigating the accident.

 

TheRespondent also contends that it was excused fromany duty to preserve a key stock because modifications of the Section 103(k)order by MSHA permitted the cleanup of debris from the slope track. *Id*at 4. The Court rejects this contention. The term “debris” is not synonymouswith “evidence,” and Mr. Tennant’s own testimony reveals that he was informedthat a key stock was found. That he may have been ignorant about its import,his role as the mine’s safety supervisor required a proactive reaction when soinformed. Though, as the Respondent notes, the modifications permitted clean-upof the slope track and slope bottom track of all debris prior to restoring theslope track and the hoist car to its normal use of operation, the duty topreserve potential evidence remained intact. 

 

            Respondent also maintains that it did notspoliate the evidence knowingly or negligently. *Id.* at 5. The problemwith this assertion is that the 103(k) Order put the Respondent on notice ofits obligation to preserve the scene of the accident on that date and Tennanthimself admitted that the piece of metal would have been considered to beevidence, and important evidence at that.  In fact, Tennant’s claim that “he‘didn’t know what a key stock was, for one, and there was no reason to believethat a key stock had anything to do with incident [and that] [a]t the time,[he] did not - it did not sink in that key stock was that big of a deal,’” doesnot excuse his action. *Id*. at 3, citing Tr. III at 104. Rather, ithighlights that he should have taken charge of the key stock when so informedof it. 

 

So too, theRespondent’s attempt to sidestep its responsibility to preserve evidence, byshifting the blame to the Secretary for failing to conduct discovery, isrejected. 

 

The issue presents a conundrum –did the Respondent in fact find a key stock after the accident or was no keystock actually found? Resolution of either alternative does not enhance theRespondent’s claim that the missing left front key stock from the first strapcar was present before the accident occurred. 

 

            In the event that it fails in attempting topersuade the Court regarding its contentions on this issue, the Respondentasserts that “an adverse inference is an extreme and inappropriate sanction.” *Id*.at 9. For this argument, the Respondent contends that bad faith must be shownand that to establish that “in the context of spoliation, generally [this]means destruction for the purpose of hiding adverse evidence.” *Id.*at 8.Lacking a showing of intentional or willful conduct by the Respondent, Mr.Tennant’s mere ignorance when informed of the key stock does not amount to suchconduct. *Id*. at 9. Instead, the Respondent urges that the Court“consider[ ] the applicable testimony regarding the key stock and g[ive] properweight to the applicable testimony and evidence.” *Id*. at 10. 

 

            As noted below, in fact, in ruling on this issuethe Court applies both approaches. That is to say, the Court finds that theadverse inference is warranted and, apart from that determination, the weightof the credible evidence, as discussed, establishes as a finding of fact thatthe left key stock was missing before the accident occurred. 

 

            Having reviewed and considered the Secretary’sMotion and the Respondent’s Response thereto, the Court finds that the missingkey stock was solely in Respondent’s control and is relevant to an issue inthis case. In connection with those findings, the Court also finds that thatthe “Respondent and its personnel were the only entities or people in controlof the accident scene, equipment, and wreckage before the MSHA inspectorsarrived at the mine. Further, any evidence found would have remained underRespondent’s control as no missing key stock was discovered by or turned overto MSHA.” Sec. Motion at 10.

 

            The Court further finds that the Respondent withheldevidence when it failed to preserve the missing key stock which the Mine Act, andMSHA’s 103(k) Order, required Respondent to preserve. 

If, in fact, a key stock was found,a difficult proposition to support, as Respondent’s witness Michael Tennant,the mine’s safety supervisor, presently, and at the time of the accident, wasthe only Consol employee to make that claim, then the duty to preserve thatevidence is clear and the Secretary’s Motion for the adverse inference issupported by the facts and case law. 

 

It is clear that where spoliationof evidence occurs, a court has the discretion to impose sanctions for that,which include drawing an adverse inference from such spoliation. Sec’s Motion at 8, citing *GentexCorp. v. Sutter*, 827 F. Supp. 2d 384, 391 (M.D. Pa. 2011). 

 

**Under this first alternative,the Court makes the adverse inference that the missing key stock was not foundand was not in place at the time of the accident.**

 

Alternatively, apart from theadverse inference that the Court has made, given the shaky testimony of Mr.Tennant on the subject, it is reasonable to conclude that no key stock wasfound and that, at most, if something was found at all, it was a nondescriptpiece of metal. Under this alternative, no key stock was ever found, leavingthe Court to make a determination whether the missing key stock was missing *before*the accident occurred or came out as a consequence of it. For the reasons setforth in several locations in this decision, the Court finds that the morecredible evidence is that the key stock was missing before the accidenthappened.  

 

**Analysis**

****

**Safeguard Case Law**

** **

Section314(b) of the Mine Act grants the Secretary authority to issue “[o]ther safeguards adequate, in the judgment of anauthorized representative of the Secretary, to minimize hazards with respect totransportation of men and materials ...”

** **

As this Court noted in its decisionin *Oak Grove Resources*, 35 FMSHRC 842,(April 2013) (ALJ), *aff’d* 38 FMSHRC 1273 (June 2016), “[t]he Commissionhas spoken to the issue of safeguards on many occasions, but its ... decision onthe subject in *American Coal* neatly ties in and summarizes its law onthe issue. 34 FMSHRC 1963, 2012 WL 4026649, Aug. 2012. In *American Coal*the Commission reviewed its precedent, beginning with its holding in *SouthernOhio Coal Co*., 7 FMSHRC 509, at 512, (“*SOCCO I* “), noting that asafeguard notice must identify with specificity the “nature of the hazard” atwhich it is directed and “the conduct required” to remedy that hazard. Itexplained that the requirement to identify “the nature of the hazard” is metwhere the safeguard specifically identifies hazardous conditions. In *SOCCO I*,rocks and cement blocks in a travelway were identified as the hazard and thesafeguard required the mine to provide at least 24 inches of clearance on bothsides of conveyor belts. The Commission held that the attempt to apply thatsafeguard to water accumulation in the travelway was beyond the class ofhazards identified in the safeguard notice. Accordingly, it held that anobstructed travelway created by water accumulation was not covered by thesafeguard notice identifying rocks and blocks as the source of impeding theclear travelway. *857

 

In the second of the threewell-known Southern Ohio Coal Company safeguard cases., *SOCCO II*, 14FMSHRC 748, (May 1992), the Commission reiterated that a safeguard whichspecifies hazardous conditions and provides a remedy is valid. It added thatwhere a safeguard is based on the specific conditions at the cited mine and adetermination that those conditions presented a transportation hazard, it isvalid. Particularly important as applied to this litigation, the Commissionstated in *SOCCO II* that the safeguard facially specified a hazardouscondition. Notably, the safeguard notice did not formally utter the words thatit was hazardous that the mine lacked a sufficient number of shelter holes.Instead, it stated that there were no shelter holes along a 400 foot section ofthe mine's supply track and that shelter holes were to be provided. Because thelack of shelter holes along that 400 foot section presented a plainly hazardouscondition, there was no need to express the obvious.

 

The Commission repeated thisprinciple in its third *Socco* decision, 14 FMSHRC 748 (May 1992) (“*SOCCOIII* ”), where the safeguard notice identified that only 6 inches ofclearance was present for a scoop being operated along a supply track. Thesafeguard required that at least 36 inches of clearance be provided. Inupholding the safeguard's statement that there was only 6 inches of clearanceas sufficiently identifying the hazard, the Commission did not treat thenotice's sufficiency by applying a grammatical test. Thus, while true that thesafeguard did not assert that 6 inches of clearance was insufficient clearancenor that such small clearance thereby created a hazard, the Commission would notallow the notice to be invalidated, because it was both obvious that 6 inchesof clearance was insufficient and because the safeguard informed the mine thatthe remedy to be provided was at least 36 inches of clearance.

 

Accordingly, the Commission's review,in *American Coal*, of its safeguard decisions summed up that if thesafeguard specifies a hazardous condition and specifies a remedy, the safeguardwill be deemed valid. *American Coal* at *5. It added that the word“hazard” in the safeguard provision means “hazardous conditions” and assertinga hazardous condition expresses the nature of the hazard and that the noticeneed not express the particular harm. Emphasizing this point, the Commissionagreed with the judge's expression that there was no requirement to name theharm or risk because any hazard may pose multiple risks and therefore theinspector need not identify each and every risk or harm. *Id*.” 

 

*Oak Grove Resources*, 35 FMSHRC 842, 857-859. 

 

**The Secretary established by a preponderance of the evidencethat Notices to Provide Safeguards, Nos. 7070545 and 7070546,were violated per Citation Nos. 7033990 and 7033991.**

** **

**The parties post-hearing briefs regarding the safeguardviolations**

** **

            The parties’ contentions in their post-hearingbriefs have been addressed earlier in this decision. However, a few additionalcomments are in order. 

 

The Court does not buy into the assertionsin the Respondent’s Reply Brief that because the *length* of the safetychains and because key stocks were not specifically addressed in the SafeguardNotices, the Notices failed to adequately describe the hazard and the remedyexpected. R’s Reply at 1-3. The reason for the Court’s rejection of thesecontentions is not complicated. By requiring in Safeguard No. 7070545 that “allrolling stock [ ] have properly maintained safety chains and safety chainconnection points,” there can be no proper maintenance of the chains if theirlengths are not the same, as they cannot perform their function as a secondaryconnection point in that state. The necessity of the same lengths was wellestablished by the testimony. 

 

  By the same token, therequirement in Safeguard No. 7070546 that “the slope brakeman car and allrolling stock will [be] provided with properly maintained couplers,”necessarily includes key stocks. Just as shoelaces are integral to tie shoes,so too are key stocks integral to and essential for a properly maintainedcoupler. Like a shoe and its laces, a coupler cannot be in any sense be properlymaintained without all four key stocks properly in place. This too is notcomplicated. As the Commission plainly stated in *Gatliff Coal*, 13 FMSHRC1370 (Sept. 1991), “Maintain” means “to preserve or keep in a given existingcondition, as of efficiency or good repair.” *Id.*at 1374.[22] Both Notices also required examination of the chains and couplers prior tobeing hoisted and transported throughout the mine. Respondent fell short ofeffective examinations of the couplers and the chains. 

** **

**Citation No. 7033990**

** **

In sum, the Respondent violatedNotice to Provide Safeguard No. 7070545 in failingto maintain the safety chains by not having both those chains of equal length. Thenotice specifically identified the hazard and the remedy to address it. Itwould be hard to conjure up a violation more aligned with the safeguard noticeinvoked as it required all rolling stock to have properly maintained safetychains and safety chain connection points. It also required that all rollingstock to be examined prior to being hoisted or transported in or out of theslope 

** **

**Citation No. 7033911**

** **

In sum, the Respondent also violatedNotice to Provide Safeguard No. 7070546 by failingto maintain the coupler and mounting bracket on rolling stock. As noted above,the Court has determined that the adverse inference sought by the Secretary isappropriate regarding this citation, namely that the left front key stock onthe 187 strap car was not present at the time of the accident. However, apartfrom that determination, the Court finds that the reliable evidence at thehearing also establishes that the left front key stock was not present on thatstrap car. 

 

            Although set forth above in the findings offact, the Court notes that, based upon his investigation, Inspector Vargoconcluded that the missing key stock was not something that recently occurred. Thatmeans the key stock was missing prior to the accident. Further, there is nodispute that the key stocks are part of the coupler because they must bepresent for the coupler to effectively function. Accordingly, properlymaintained couplers must have intact key stocks. 

 

            Much other evidence from the hearing supportsthe Court’s conclusion on this issue. Respondent’s witness Jones agreed that thepurpose of key stocks is to keep the coupler in place and that key stocks arean integral part of the system. On the issue of whether the key stock waspresent, Jones was agnostic. However, he agreed that there was no**indicationthat the key stock had been torn away or ripped out from its location. DespiteJones concession on that point, he still believed that, given the force causingthe cars to separate, the key stock would have been ripped out. Why only one ofthe two front key stocks would be ripped out, not both, was not asked, norvolunteered, but in the Court’s view such a result seems odd. Hoist operatorWilliams agreed that key stocks are welded in place in the coupler pocket.

** **

****Mike Snyder, with MSHA’s Tech Support, andwho was part of the investigation, like Inspector Vargo, reached the conclusionthat the key stock had *not* been present immediately before the accident.Respondent’s Russell McHenry, who at the time of the accident was the mineforeman and who is presently the assistant superintendent, admitted that hedidn’t know if the key stock was present immediately prior to the accident.Further, he acknowledged that he didn’t see any fresh breaks in the weldmentswithin the coupler pocket. 

 

Another considerationfor the issue involves the agreement that if the key stock had indeed brokenoff at the time of the accident, it would have broken right at the top of theslope. This is significant because it means there was no lengthy area to searchfor the key stock, only amounting to few hundred feet. The Court considers itto be telling that no key stock was found. 

Accordingly, on this basis also, the Court finds that thekey stock was missing before the accident. 

 

            So too, as with the violation of the safeguardaddressing the chains, the safeguard notice pertaining to the couplers, asapplied to the facts in this case, also meets the Commission’s test. The notice specifically identified the hazard and theremedy to address it. The absent key stock violated the safeguard’srequirement to examine and properly maintain the couplers. It was undisputedthat key stocks are an integral part of the couplers. 

 

The Court finds that both violationswere significant and substantial, as each element of the *Mathies*testwas established. *Mathies Coal,*6 FMSHRC 1, 3 (1984). The violationpertaining to the coupler, as noted, has been proven. The inadequatelymaintained coupler posed a discrete safety risk, namely the likelihood that thecars may separate, as happened here. An inadequately maintained coupler presents,inherently, a reasonable likelihood of a reasonably serious injury. Even apartfrom the fact that the accident occurred, an inadequately maintained coupler,in this instance one missing a key stock, is an accident waiting to happen. Thatno one was hurt *in this instance* does not translate into diminishing thereasonably serious injury element of *Mathies.*To claim that there is noreasonable likelihood of a reasonably serious injury occurring undercircumstances of six rail cars weighing some 94 tons freewheeling down a steepslope of 1600 feet would, in the Court’s opinion, render the term “significantand substantial” meaningless.

* *

The missing key stock, as aninadequately maintained coupler, could have failed under other circumstances oftransporting the cars. This is so because the key stocks aren’t ornaments; theyare an essential and integral part of the coupler arrangement. While a formal,i.e. controlled, drop of cars down the slope may, by procedures, alert thosedown the slope of the drop by activating lights and sirens, there is noguarantee that the coupler’s insufficient key stock arrangement would notproduce a decoupling in other situations when the cars are in motion and thenstop. Further, as the lights and siren come into play during an anticipatedcontrolled drop, there is no intensified warning when cars are literallyscreaming out of control, as such an event is anything but a controlled drop.[23]The same significant and substantial analysis is equally appropriate to thechains of uneven lengths. 

 

In addition, as the Secretary has noted,“[d]efendant’s redundant safety features are irrelevant in the case of anS&S violation. *See*,*Cumberland Coal**Res., LP*, 717 F.3dat 1029 (citing *Sec’y of Labor v. FMSHRC*, 111 F.3d at 917). [Further][a]ny injury that occurred would have certainly been serious. Tr. I at119:12-24. Inspector Vargo marked these violations as fatal, specificallybecause he stated that if these cars hit a miner, “there wouldn’t be a chancehe could survive.” Tr. I at 118:15-20.” Sec.Br at 10.

 

            As to negligence, the Secretary maintains thatmoderate negligence is the appropriate designation. To the Court, theSecretary’s characterization of the negligence is generous, as it accepts thepresence of “mitigating circumstances,” although no such mitigation isidentified by the Secretary. The Court accepts as some mitigation that, oncethe cars were in service, it is difficult, though by no means impossible, toobserve the key stocks.[24]

 

** **

** **

** **

**The new Notice to Provide Safeguard, No. 7033989, issuedon August 12, 2020, does not diminish the applicability of the 2011 SafeguardNotices**

** **

The Court finds that MSHA’sissuance of a new Notice to Provide Safeguard, No. 7033989, on 08/12/2020, inconnection with its investigation of the accident at Respondent’s Bailey Mine,is not relevant to the issues in dispute in this proceeding, nor does that newsafeguard notice detract from the validity of the two Notices to ProvideSafeguard, Nos. 7070545 and 7070546, issued on October 25, 2011. That newsafeguard notice establishes that it is distinct from the 2011 notices, as the2020 safeguard notice speaks to a newly identified hazard, per Section 314(b) ofthe Mine Act, with respect to transportation of men and materials, by requiring“*that the Mine Operator shall develop a fail proof system or safetynotification method that will allow the hoist operator, bottom attendants, andother attendants or miners in close proximity of the hoist trip as to whatparticular hoisting mode the select switch is in, if more than one automaticmode is available to hoist*.” (emphasis added).[25]

**Citation No. 9203757; The now-admitted parking brakeviolation**

** **

****This****Citation alleges a violationof 30 C.F.R. § 77.1605(b). A plainly worded standard, it requires that “[m]obileequipment shall be equipped with adequate brakes, **andall trucks and front-end loaders shall also be equipped with parking brakes**.”(emphasis added). 

 

On September 1, 2020, MSHAInspector Bryan Yates was conducting an EO1 inspection at the Bailey Mine’sprep plant. Tr. 121. Regarding Citation No. 9203757, Ex. P-12, Bates Stamp MSHA0263, Yates confirmed he issued it on that date. Ex. P 13, Yates’ inspectionnotes relating to that citation. On that date he conducted an inspection of themine’s Kodiak lube truck. That inspection revealed other alleged problems withthe truck, but this citation only addressed the parking brake, which he foundto be not working. Tr. 126. For testing parking brakes, Yates informed they “takethe equipment to a grade, [and] have the operator of the equipment set theparking brake to hold against the load of the vehicle.” Tr. 118. The vehicle isstopped before the parking brake is applied. The operator does not apply theaccelerator during the test*. Id.*

 

The subject truck is used aroundthe mine servicing other equipment for the operator.  Tr. 126. The vehicleoperator told the inspector that the vehicle goes *everywhere* it isneeded at the mine. *Id.* Yates described the mine having miles of roadsand hills, adding that the prep plant is the largest in the United States. Tr.127. He described the test as follows: “[w]e took it to a grade outside the Bin6 [where he had] the operator go down to the bottom, [to] a large flat area andpull the truck back up the hill. As soon as the back wheel started up on to thegrade, I had the operator start, set the emergency brake, and test it that way.He put it in neutral, and the brake would not hold [and then] [t]he truckstarted to roll backwards down on to the flat.” *Id.*

 

Being familiar with the type ofparking brake on the vehicle, the inspector gave the operator the opportunityto see if the brake could be adjusted down and thereby correct the problem. However,“the adjustment on the knob was maxed out. There was no more adjustment.” Tr.128. The truck was then taken out of service. When it is performing its normaltasks at the mine, servicing other vehicles, the truck may need to be runningso that its compressor is operating for tasks. The hazard is that the truckwill need to be neutral at those times; consequently, the emergency brake needsto be working. The truck’s tires are also chocked on those occasions. Tr. 129-130.However, in the process of setting the chocks, it is possible that the vehiclemay move. Inspector Yates articulated, satisfactorily in the Court’s opinion,the basis for his evaluation of the gravity and negligence involved, along withhis conclusion that it was a significant and substantial violation. Tr.131-135. While it did not affect the issuance of the citation, Yates noted thatit was the operator’s truck, though it was being operated by a contractor,while affirming that the operator remains liable in such circumstances. Tr.135.The bottom line for this matter is that the inspector found the parking braketo be inadequate. Tr.137. The operator concedes this. The inspector also informedthat the grade he tested the vehicle on was slight and that the mine has manyother steeper inclines on the property. Tr. 148.  

 

The Respondent, as noted, admits tothe violation, challenging only the appropriateness of the significant andsubstantial designation. Tr. 150. As the Court then noted, that test examineswhether there is a reasonable likelihood of a reasonably serious injury, addingthat the 

test is measured under continued normal mining operations. Thus,it is not a static test, examining only where a particular violation is discovered,whether it be on flat ground or whatever. Tr. 151- 152.

 

            The Respondent called Shane Reynard, who is anemployee of RICO Equipment, which is a heavy equipment service dealer. Tr. 156.His position with the company is a heavy equipment field mechanic. He describedhimself as a “resident for the Consol Bailey Prep Plant,” meaning he is thereevery day. Tr. 157. Reynard was at the plant on September 1, 2020, when thecitation for this truck was issued. Tr. 160. He described the truck as “amedium duty 4500 series GMC truck that [it] use[s] as a lube truck, ... [it][j]ust carries oils and filters for all of the stuff that operates on our minesite here. ... [to help picture it, he described it as] very similar to like aU-Haul moving van or moving truck of that nature.” Tr. 160. “It's used to driveto the equipment that cannot be brought to our shop to refill oil levels, doroutine maintenance like greasing the machine or changing the oil and filtersin that machine.” *Id*. The back of the truck contains “four oil tanksthat hold [ ] engine oil, hydraulic oil, gear oil, and then there is also afifth tank for waste oil, from whenever you drain the engine or drive trains onthe trucks or dozers.” Tr. 161.  The truck also has a hydraulic driven aircompressor on it. *Id*. 

 

Of relevance to this citation, Reynarddescribed the parking brake as “a drum brake that is actually mounted to thetransmission right on the drive shaft ....[i]t would be used as a stationarybrake. If you were to come to a complete stop, apply the parking brake, itwould keep the unit from rolling away or allow you to leave the vehicle. Becauseit is a standard transmission, so you really can't leave it in gear with theengine running.” Tr. 163-164. Though beside the point, Reynard stated it is notan “emergency” brake. Tr.164. When the inspector directed that the brake betested, it held on flat ground. Tr. 165. At the time of the inspection thetruck was not being used during that shift. Tr. 166. 

 

 

The Respondent’s argument seems tobe that the truck would be serviced in its shop, which is on a level service. Theproblem is the truck doesn’t stay in a shop. It’s used at the mine, andtherefore it’s not a display. Although the shop may not present a risk of thetruck rolling, because it presents a flat surface, that ignores twoconsiderations. First, the cited standard requires working parking brakes andthe Respondent concedes the standard was violated. In fact, Reynard confirmedthat he had to fix the brake. Though the adjustment was not time consuming,that it beside the point. Second, the reasonable likelihood of a reasonablyserious injury was established by the fact that the truck is used throughoutthe mine and that the mine has many hills. It is not uniformly flat.  

 

On cross-examination, Reynard,after confirming that the brake held on level ground, then agreed that theinspector had him “pull up the grade, roll the vehicle backwards, and then setthe brake,” but that it did not hold under that circumstance. Tr. 172-173. Reynardoffered that it didn’t hold “because it is not designed to hold the unit. It'snot designed as an emergency brake, like if the unit was in a roll or any typemovement like that.” Tr. 173. He admitted that the truck was available for use.Tr. 174.

 

The standard requires that alltrucks shall also be equipped with parking brakes. This means, of course, thatthe parking brake is working and able to perform its function. As noted, theRespondent has conceded that the standard was violated, limiting its challengeto the “significant and substantial” designation. In its Reply Brief theRespondent contends that the Secretary ignored the particular facts surroundingthe violation. R’s Reply at 9. The arguments made by the Respondent miss the point;the particular facts are that the parking brake was tested and failed. That “thetruck was parked on flat ground, was not being operated and had not beenoperated *during the shift* and that the lube truck is used sparinglysince most of the equipment fits inside of the Bin No. 6 shop” are beside thepoint. *Id*. at 10. This is because, as the Respondent concedes, the “truckmay be driven around the preparation plant grounds, which includes hills.” *Id.*In the context of continued normal mining operations, a truck without aparking brake that can hold it on a grade is an accident waiting to happen.[26]Level ground and the inertia it may bring is not a substitute for a workingparking brake. As noted, the truck is used throughout the mine and the mine hasmany hills. Accordingly, the violation meets the *Mathies*significant andsubstantial test.

 

** **

** **

**Assessment of Civil Penalties**

** **

**Statutory Penalty Considerationscommon to all violations**

** **

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. Inproposing civil penalties under this chapter, the Secretary may rely upon asummary review of the information available to him and shall not be required tomake findings of fact concerning the above factors. 30 U.S.C. §820(i)

 

**Mine size**MSHA Exhibit Areflects a mine size of 15, placing it in the upper third of that criterion anda controller size of 10, placing it in the top of that size criterion. Accordingly,the mine is at least a medium to a large entity. Petition for Civil Penalty at10. 

 

**Ability to continue in business**TheRespondent has stipulated that payment of the total *proposed*penaltiesfor this docket, an amount of $7,626.00, will not affect its ability tocontinue in business. Sec’s PH Brief at 5, Stipulation 6. The total penaltyimposed by the Court in this matter is slightly less.

 

**History of previous violations**Under30 C.F.R. Part 100, MSHA Exhibit A lists the Respondent’s violations perinspection day (“VPID”), across the board for all five citations at “2” points,which translates into the second lowest category for that at over 0.3 to 0.5. Theother three citations, that is, those not involving safeguards, received zero(“0”) points for the repeat violations per inspection day (“RPID”) category. Morewill be said later about the violation history for the three citationslitigated in this proceeding. 

** **

** **

**Statutory Considerations common to the safeguardviolations**

** **

****The two safeguard generated violations,Citation Nos. 7033990 and 7033991, were each assessed at a proposed penalty of $3,299.00

** **

**Historyof previous violations**As noted, under 30 C.F.R. Part 100, MSHA Exhibit Alists the Respondent’s violations per inspection day (“VPID”), across the boardfor all five citations at “2” points, which translates into the second lowestcategory for that at over 0.3 to 0.5.  For *repeat* violations perinspection day (“RPID”), the two safeguard citations in this docket come in at3 points which, at over 0.02 to 0.025, is also on the low end of that measure. 

 

However, it is clear that the Courtis not constrained by Part 100. The Court considers that the safeguard- relatedviolations in this docket amount to déjà vu accidents and therefore, incontext, the Court deems the Respondent’s violation history for those twocitations to be significant. 

 

**Negligence**The Court considers the negligence associated with these two violations tobe moderate with respect to the key stocks and high with respect to the chains.The burden, though not extraordinary, regarding checking the key stocks,constitutes some mitigation. However, the chain length deficiency does notpresent any mitigation. Consideration of this penalty criterion must take intoaccount the nearly identical accident years before which precipitated the twonotices to provide safeguard.

** **

**Gravity**The analysis of thegravity involved, as discussed above, cannot be constrained by the fact that noone was injured, nor that, through alarm and light warnings, those below, *ifall goes according to plan*, will be alerted to an imminent car drop. Butthose advance warnings operate on the premise that a controlled drop is aboutto occur, not a mishap, with its unintended and unforeseeable consequences,when cars are running out of control as they race to the bottom of the mine. 

** **

**Good faith**The Court alsodoes not subscribe to a salutary assessment of the Respondent’s good faith inattempting to achieve rapid compliance after notification of a violation. Thiscriterion is inapplicable to the citations stemming from the 2011 Notices toprovide safeguards and therefore does not work to benefit the Respondents. Giventhe history prompting the issuance of the original safeguards in 2011 that, inalmost an eerie sense, the runaway cars event was repeated in 2020, no goodfaith penalty reduction is warranted here. Given the wreck of the six cars, themine operator had no choice but to clean up the mess at the bottom of theslope. 

 

Upon consideration of the statutorycriteria, though higher penalties could be justified, the Court imposes a civilpenalty of **$3,299.00****for *each*****of the safeguardviolations**. 

 

**Statutory Considerations for the brake violation perCitation No. 9203757**

** **

Three of the statutoryconsiderations; **mine size, ability to continue in business, and violationhistory** have been discussed above, albeit with a limited discussion for theviolation history regarding this admitted violation. No previous violations forthis standard are reflected under the history category. Therefore, that elementbenefits the Respondent in determining the civil penalty.

 

**Negligence** There doesappear to be some mitigation in that the Respondent had a designatedindependent contractor using and servicing the lube truck. Moderate negligenceis appropriate.

** **

**Gravity**The Court does notagree with the Respondent’s position that the event was unlikely to occur. Thisis because the lube truck travels throughout the mine and therefore there aremany opportunities for one to be injured from the truck’s brake not being ableto hold, even on a slight grade. Lost workdays or restricted duty is a moderatecharacterization of the injury which could reasonably be expected to occur.  Giventhe breadth of the mine and the scope of the truck’s use throughout it, is notoutlandish to suggest that a more serious injury could also have beenreasonably expected. Accordingly, the Court rejects the Respondent’s contentionthat the violation was not significant and substantial. 

**Good faith**Certainly theRespondent demonstrated ‘good faith’ in attempting to achieve rapid complianceafter notification of the violation.

 

Taking into account the entirety ofthe evidence for this conceded violation, the Court, upon application of thestatutory criteria, imposes a civil penalty of **$200.00** (two hundreddollars) for this citation. 

 

**ORDER**

 

For the reasons set forth above,Citation Nos. 7033990 and 7033991 involving the safeguard are AFFIRMED, witheach assessed a civil penalty of $3,299.00. Citation No. 9203757 is AFFIRMED,and assessed a civil penalty of $200.00. Citation No. 9201843 has been settled.The minimum penalty, $123.00, was assessed for that citation. That Citation ismodified to “lost workdays/restricted duty.”  Citation No. 9203766 has beenVACATED by the Secretary. **Accordingly, the total amount due is $6,921.00.**

 

Payment is to be made to the MineSafety and Health Administration within 30 days of the date of this Decision.Upon timely receipt of payment, the captioned civil penalty matters areDISMISSED.[27]

 

 

 

 

/s/ William B.Moran

William B. Moran

AdministrativeLaw Judge

 

 

Distribution:

 

Ryan M. Kooi, Esq., U.S. Department of Labor, Office of theRegional Solicitor, 1835 Market Street, Mailstop SOL/22, Philadelphia, PA19103-2968 kooi.ryan.m@dol.gov

 

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

 

Douglas Sciotto, CLR, U.S. Department of Labor, MSHA, 631Excel Drive, Suite 100, Mt. Pleasant, PA 15666 sciotto.douglas@dol.gov

 

Craig Aaron, CONSOL Energy Inc., 1000 Consol Energy Drive,Suite 100, Canonsburg, PA 15317 craigaaron@consolenergy.com

 

----

[1] Well over 90% of the hearing involved the safeguardissues. A third citation cited a non-functional parking brake on a truck. Thisis not to say that the brake issue was inconsequential but only that it did notconsume much time. For that matter, the Respondent admits to the brake violation,but challenges the “significant and substantial” finding. As explained within,the Court finds that the violation was significant and substantial. Two othermatters were also part of this docket, Citation Nos. 9203766 and 9201843. The Secretary vacated CitationNo. 9203766. Vol. I, Tr. 9-10. Citation No. 9201843 was settled. Alreadyassessed at the minimum penalty, $123.00, the settlement, which is APPROVED,modified the evaluation to lost workdays/restrictedduty.  

[2] Later, the safeguard was modified to eliminate thephrase “as well as throughout the mine.” It added that “[t]here are safeguardsalready in place that do not require the use of both safety chain connectionpoints to be used when transporting rolling stock through the mine. Ex. P 2.

[3] Once a new day and therefore a new Transcript Volume occurs,the Court marks that event with the new Volume involved, but it does so onlyonce, with subsequent transcript pages referring only to the new transcriptpages for the succeeding day.

 

[4] Ex. P-8, consisting of 111 pages, which exhibitincludes Vargo’s notes. Tr. 38.

 

[5] The ‘strap’ car refers to contents of straps, boltsand resins. Tr. 47.

 

[6] As noted, the terms ‘brakeman car,’ ‘brake car’ and ‘hoistcar,’ all refer to the same car in this litigation. VII Tr. 41.

 

[7] Vargo explained that the ‘rope,’ meaning a wire orhoist rope, connects the brakeman car to the hoist drum. Tr. 60.

 

[8] At times, Vargo called the brakeman car, the ‘slope’car, but he clarified that its proper name is the brakeman car. Tr. 57-58.

 

[9] The draft gear is attached to the coupler and it ispart of it, fitting inside the car pocket. Tr. 58-59.

[10] Though Vargo explained the chain arrangementconnections, the salient point is that the chains *were not* of equallength. Nevertheless, for the sake of completeness here is his description: “thechains were welded to the brakeman's car, ... [the mine’s] supply cars arestaggered. One has a chain on one side, and diagonal has it welded on the otherside. The pin is welded, not the chain. So this car could not be fastened tothe ear of the strap car. So at that point, they connected it up to anotherchain.” That additional connection was by using a clevis. The clevises werewelded on the brake car. Tr. 88-89. 

 

[11] There was a problem with some of the Secretary’sexhibits during the hearing, as the Bates numbers were missing. Per the Court’sinstruction, Counsel for the Secretary corrected this on December 13, 2021, byfiling on e-CMS the admitted exhibits with the Bates stamp numbers on them. 

[12] These cross-examination questions were obviouslyaimed to diminish Vargo’s background and experience. However, for the limitedexpertise and background required, the inspector was fully qualified to offerhis opinions about the cause of this accident. 

[13] Later Jones elaborated about the shanty at the slopebottom, expressing that “[i]t's up three steps, and it's recessed into the ribprobably eight feet. So it -- you can open the door and still have two steps toprobably four or five or six feet until you get within the rib line. Then itwould be another three or four feet to get to the rail. So it's pretty wellback out of the track -- off the track” and that it’s back in the crosscut. Tr.280. 

[14] Until references move to day three of the hearing,citations are now referring to Vol. II of the transcript. 

[15] Williams stated that he never made it to see thewreckage. He was instructed to walk the slope and clear anything off thetracks, to throw everything to the side if there was any materials that cameoff the cars. Tr. 24-25.

 

[16] The term “fire boss” refers to one whose duties areto walk a certain area to check for safety problems, air quality and thingslike that, including riding the car and examining the track.  The expression‘pulling the fire boss’ refers to pulling that person out of the mine. Vol II, Tr.90-91.

[17] A follow-up question by the Court underscoredWilliams’ very limited understanding of key stocks. When asked again if heunderstood their purpose, he only answered “I do not know if it's 

there to hold thatrubber piece in, or if it's there to keep the coupler from turning a certaindistance. I don't know. I don't weld these things on or I don't work on thecars. ... I'm not a mechanic, so I really don't get into that depth of what allthe pieces inside the car do.” Tr. 48. Knowledge about how key stocks functionor their purpose was not part of his training. *Id*. However, as noted, hedid know they are welded in place.

[18] Yet, the parties’ continued to address theconnections, but in the Court’s opinion it was of no added value. For the sakeof completeness only, the go-round is presented here. On subsequent redirect,Respondent’s Counsel again revisited the subject of chains. Williams confirmedthat there are three chains connecting the brakeman car to the supply car. Askedagain, later, Williams reconfirmed that three chains connected the hoist car tothe supply car. Tr. 95. As Williams described it “there was one on the right. Therewas the one on the left that was welded fast to the supply car, and there wasone coming off of the hoist man car on the left side.”  Tr. 93, and Ex. P-7.MSHA 0057, time stamp 10:19. Speaking with reference to that photo, Williamsconfirmed the presence of two chains, stating on the left “[t]hat's the onethat was welded fast to the supply car, and the other one is the one thatpulled out of the hoist -- the brakeman car, the hoist car.” *Id.* Thus,he stated, the one on the right side that was not welded fast, pulled out ofthe brakeman car. He identified it as located in the middle of the picture.   Thechains were discussed yet again on recross exam, with the Secretary referringto the same photo, as above. Williams confirmed that the chain with a “J” typeshape in the middle of the photo was connected to the brake car, but he addedthat “[t]here was two connected to the brake car. The two on the right that hasno clevises are the two that was connected to the brake car, because theclevises are still at the brake car.” Tr. 96. However, it appears that theRespondent’s Counsel was trying to portray that there were three chainsconnecting the cars, but in fact as Williams ultimately acknowledged there werereally just two (2) chains. Williams admitted as much, stating that one end ofthe three (3) chains “was not connected to the brakeman car.” *Id*. at 99.The point, to which Williams agreed, is that on the left side there was oneconnection that happened to use two chains. Tr. 99. All of this, in the Court’sestimation, simply serves to obscure the critical fact – the chains werefunctionally of different lengths. Full stop.

[19] Snyder tested the hoist rope and examined the primaryhoist house. Tr. 125-126. He also went underground and viewed the wreckage. Hecreated a report based on his visit to the mine on that day. Ex. P-9, (MSHA0240, a 16-page exhibit).

[20] Hereinafter, unless otherwise indicated, transcriptpage references are to Volume III. 

[21] When the Court describes Tennant’s testimony as inline with those witnesses who proceeded him, it is referring to the hoist speedbeing set at 600 instead of 300 feet per minute, and the overspeed sensortriggering the brakes. However, for some details, he misspoke by describing theeffect of the brakes as “[w]hich caused the coupler pocket of the first car hookedto the brake car to come out of the coupler pockets. Obviously breaking thesafety chains that were on each side of the car.” Tr. 61. The weight of theevidence is that the coupler “pocket” did not come out; the coupler did, andthere is general agreement that the chains didn’t break, the clevis did. Later,he corrected himself about the chains, informing that the shackle pin broke.Tr. 67. His corrected statement is in line with the testimony of others.  

[22] Fully applicable to these safeguards, the Commissionhas also held “that the term “‘maintain’ [means] that warning ***devicesshall be capable of performing on an uninterrupted basis and at all times....[and] imposes******a continuing responsibility** on operators toensure that safety alarms***[i.e. devices]***do not fall into a stateof disrepair.*” *Natty & Hamilton Enter., Inc*., 33 FMSHRC 1759,1763 (Aug. 2011); *see also Sedgman*, 28 FMSHRC 322, 329 (June 2006); *JimWalter Res., Inc*., 28 FMSHRC 983, 987 (Dec. 2006); *Jim Walter Res., Inc*.,19 FMSHRC 1761, 1765 (Nov. 1997).” *Wake Stone,* 38 FMSHRC 825,827(emphasis added). Obviously, the Commission, in speaking to the requirement of *performing*on an uninterrupted basis and the continuing responsibility that devicesnot fall into disrepair, was not limiting its statement to safety alarms. 

[23] The Court considered the Respondent’s arguments,disputing that it was significant and substantial and asserting that nonegligence was involved. The Respondent provides a single discussion of thoseissues for both safeguard violations and the Court, agreeing and adopting thatapproach, follows suit. Respondent contends that “the occurrence of an accidentdoes not confirm that a condition is reasonably likely to result in an injury.”R’s Br. at 30. The Court would agree that more is required than the occurrenceof an accident. But, given what happened here, and in consideration of the twindefects established – an inadequately maintained coupler and inadequatelymaintained chains – that the accident occurred without anyone being injureddoes not foreclose the S&S finding either. Based on the uncontested facts,there was a reasonably likelihood that those two defects would combine tocreate uncontrolled cars upon an abrupt stop, as happened here. Further, withsix cars then unleashed, it is undeniable that any contact with them wouldproduce a reasonably serious injury. 

 

[24] Similarly, regarding negligence, the Court cannotadopt the Respondent’s assertion that no negligence was involved. Although theRespondent maintains that the hoist operator checked the couplers and thechains and found no conditions requiring that the equipment be removed fromservice, that does not establish that the inspection was adequate. This isparticularly true of the mismatched chain lengths, but the couplers too wereinadequately inspected. The missing key stock could have been identified,though it would have required some effort, as one would need to be on hands andknees. As mentioned above, another consideration is that, as only six carswould need to have the couplers inspected, the effort was not inordinatelyburdensome. The balance of the Respondent’s arguments stray into subjects thatare outside of the S&S and negligence analysis, as they involve theunchallenged remarks that the visual and audible alarms were working. As notedabove, those features are not properly part of either analysis.

 

[25]The text of the new safeguard notice, issued on August 12, 2020 provides: 

**“**On July 17, 2020, at approximately 10:30 a.m., anon-injury accident occurred on the Crabapple slope track entry while 6 loadedsupply cars were being hoisted down the slope track. The Hoist SafetySupervisor (HSS) system faulted on "overspeed" at 692 feet per minute(FPM) causing the hoist drum brakes to engage. When the hoist brakes engaged,the brake-car, located at a slope depth of approximately 100 feet in the mine,came to an abrupt stop. The force applied to the strap car caused the carcoupler to sever and separate. This action disconnected the strap car from thebrake-car. Two 30mm safety chains with 1 1/4 inch retainer pins tied the carstogether, each chain attached by a 12 ton clevis. Both retainer pins broke fromthe shock load. The 12 ton clevises were the connecting points at the brake-carto the supply car safety chains. The result was 6 loaded supply cars travelinguncontrolled at high speed to the slope bottom. The mode-select switch in theremote hoist house was in “person” mode, which is 600 fpm instead of “normal”supply car mode, which is 300 fpm. This contributed to the overspeed fault ofthe hoist. The total supply trip weighed approximately 94.39 tons (2 oil carsat 22.8 tons, 2 slag cars at 31.48 tons, and 2 strap cars at 32.86 tons =approximate total supply weight of 87.14 tons). Adding the weight of theBrake-car (7.25 ton) the total trip weight was 94.39 tons. The maximum hoistingweight capacity is not posted in the hoist house. Therefore, miners do not havea visual means to know what the rated capacity is for the hoist. The weightbreakdown of each car or equipment being hoisted is not posted at any location.There are no safety device or measures in place to let the hoist operatorand/or attendants know the mode of the hoisted trip. There are no postings ofhoisting speed rates for various transportation load ratings, such as forhoisting personnel, supplies cars, or mining equipment. This slope bottom is ahigh traffic area where miners travel on foot. Motormen bring the locomotiveand supply cars from a spur switch over into the slope bottom track frequentlyduring any given work shift. Broken bones, crushing type injuries up to andincluding death is foreseeable to occur with runaway supply cars traveling downthe slope track. 

 

**This is a Notice to Provide Safeguard that the MineOperator shall develop a fail proof system or safety notification method thatwill allow the hoist operator, bottom attendants, and other attendants orminers in close proximity of the hoist trip as to what particular hoisting modethe select switch is in, if more than one automatic mode is available to hoist**.This speed position shall be determined by the full work load weight of thecars and equipment that is being hoisted, if more than one automatic mode isavailable to hoist, as well as when hoisting personnel. The hoisting speedrates shall be posted and maintained as per different types of mode oftransportation, if more than one automatic mode is available to hoist. Themaximum hoisting weight of 107.25 tons shall be posted and maintained in thehoist house, remote hoist house, bottom attendants’ shanty on the slope bottom,and in the supply yard where cars are loaded. The maximum hoisting weight shallat no time be exceeded. The weight of the hoist car (7.25 tons) shall beincluded when figuring total hoisting weight of trips being raised or loweredin the slope. A weight list in tons for each supply car and equipment beinghoisted shall be posted and maintained in the hoist house, remote hoist house,at the motormen attendants’ shanty on the slope bottom, and in the supply yardwhere the cars are loaded. If future modification of the hoist controls occurs,the intent of this safeguard shall be complied with at any mine slope hoist atthis mine. Upon issuance, initial training on this safeguard shall be given toall hoist operators, persons who load supply cars and bottom attendants at thismine.” (**bold** text added.)

 

 

[26]*See, for example,*MSHA’s December 12, 2007,report of a fatal powered haulage accident attributable to “a failure in theparking brake system of the loader, which did not allow the parking brakes toapply.” That fatality report also is instructive in pointing out that the useof a parking brake is not limited to the equipment’s normal duties, as it arosein the context of a truck becoming stuck on a road. https://arlweb.msha.gov/FATALS/2007/FTL07c31.asp

[27] It is preferred that penalties be paid 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.