**FEDERA****LMINESAFETYANDHEALTHREVIEWCOMMISSION**

OFFICEOFADMINISTRATIVELAWJUDGES

1331PENNSYLVANIAAVENUE,NW,SUITE520N

WASHINGTON,DC20004-1710

TELEPHONE:202-434-9987/FAX:202-434-9949

 

 

SECRETARYOFLABOR                                   :                 CIVILPENALTY PROCEEDING

MINE SAFETY ANDHEALTH                      :

ADMINISTRATION(MSHA),                         :                 Docket No. PENN 2021-0046

Petitioner,                                     :                 A.C.No. 36-07416-527800

                                                      :

                                                      :

                                                      :

v.                                                   :

                                                                  :

                                                                  :

                                                                              :

CONSOL PENNSYLVANIA COAL                   :

COMPANY, LLC,                                                :

           Respondent                                               :                 Mine:Enlow Fork Mine

                                                                             :

 

 

 

**DECISION**

** **

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

 

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

 

Before:                        Judge Bulluck

This case isbefore me upon a Petition for the Assessment of Civil Penalty filed by theSecretary of Labor (“Secretary”), on behalf of the Mine Safety and HealthAdministration (“MSHA”), against Consol Pennsylvania Coal Company, LLC(“Consol”), pursuant to section 105(d) of the Federal Mine Safety and HealthAct of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary seeks a civil penaltyin the amount of $905.00 for two alleged violations of his mandatory safetystandards. 

 

A remote hearingwas conducted over Zoom. The following issues are before me: (1) whether Consol’sviolation of 30 C.F.R. § 75.1725(a) was attributable to the level of gravityalleged; (2) whether Consol violated 30 C.F.R. § 75.1200-1(d); and (3) theappropriate penalties for the violations. The parties’ Post-hearing Briefs andConsol’s Reply Brief are of record. 

For the reasonsset forth below, I **AFFIRM** Citation No. 9204073, as modified, andCitation No. 9204074, as modified, and assess penalties against Respondent. 

 

**I.              ****JointStipulations**

** **

The parties havestipulated as follows: 

 

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

 

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

 

3.     The operations ofRespondent at Enlow Fork are subject to the jurisdiction of the Mine Act.

 

4.     This proceeding issubject to the jurisdiction of the Federal Mine Safety and Health ReviewCommission and its designated Administrative Law Judge, pursuant to sections105 and 113 of the Mine Act.

 

5.     Enlow Fork Mine isowned by Respondent.

 

6.     Payment of thetotal proposed penalty will not affect Respondent’s ability to continue inbusiness.

 

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

 

8.     True copies ofeach of the citations at issue in this proceeding were served by a dulyauthorized representative of the Secretary of Labor upon an agent of Respondentat the date, time and place stated in each citation, as required by the Act.

 

9.     Exhibit A,attached to the Secretary’s Petition in this docket, contains authentic copiesof the citations at issue in this matter. 

 

10.  With regard toCitation No. 9204073, the parties agree to the fact of violation of 30 C.F.R. §75.1725(a), when the horizontal keeper pins in shields 2, 269, 270, and 271were not in place.

 

Tr. I 11-12,126-27.

 

**II.           ****FactualBackground**

** **

Consol owns and operates the EnlowFork Mine (“Enlow Fork”), an underground coal mine in Washington County,Pennsylvania. Jt. Stips. 1, 5. As part of its efforts to comply with theSecretary’s mine mapping requirements, Consol contracts with 18 Karat,Incorporated (“18 Karat”), to conduct surface searches for abandonedunderground wells that are within 500 feet of active mining. Tr. I 173; Tr. II53-54, 58-59. 18 Karat utilizes largely inaccurate, hand-drawn oil and gasproducer maps and farm-line maps, pre-dating permit requirements and modern GPStechnology, depicting wells drilled over 80 to 100 years ago in relation tolandmarks that may no longer exist. Tr. I 182; Tr. II 54-57; Ex. R–7. Guided by the oldmaps, 18 Karat uses metal detectors to search for casings and pieces of exposedpipe above ground. Tr. I 173, 286; Tr. II 53-57. Once a well is found, it issurveyed and added to the mine map by a draftsman and, before Consol ispermitted to mine through the well, it must plug it according to MSHA-approvedspecifications. Tr. I 165, 176, 182; Tr. II 53-54, 109, 131. Oftentimes,because landmarks and surface features have disappeared or been altered,abandoned mines can be difficult, if not impossible, to find; when an alleged“search well” cannot be located, it is designated on the old maps and Consol’smine map by “DNF” (“Did Not Find”) and a number placed over a square symbol. Tr.I 32; Tr. II 56-57, 63, 84; Exs. R–8, R–9.

            OnNovember 18, 2020, at 3:30 a.m., Consol cut through an alleged uncharted gaswell, causing the operator to shut down longwall operations and call in areport to MSHA. Tr. I 26-27, 74. MSHA inspector and ventilation specialistWalter Young traveled to Enlow Fork in response to the report, and examined therecord books and a mine map showing gas wells in the vicinity of Consol’sactive mining on the E-32 longwall section. Tr. I 19, 27, 30; Ex. P–3 at 18. The surface areaabove the intersected drill hole had been converted into a golf course, whichaccounts for 18 Karat’s failure to locate it despite due diligence, andConsol’s best estimate placement of it on its official mine map. Tr. II 84; Exs.R–7at 11-12, R–10.

            Youngproceeded underground with Consol’s safety supervisor Frank O’Brien. Tr. I 33;Ex. P–3 at 2. At 8:12 a.m., while walking the face with O’Brien and longwallcoordinator Justin Higman, Young noticed that a small horizontal keeper pin(“keeper pin”) was missing from the clevis of the number 2 headgate shield. Tr.I 59-60, 75. The inspection team continued down the face, Higman went ahead ofYoung and O’Brien to the tailgate and, when the pair caught up with Higman,Young observed a rock strategically placed on each otherwise “spotless” toe oftailgate shields 269, 270, and 271, where keeper pins should have been located.Tr. I 60-61, 75, 123. Using the toe of his boot, Young kicked the rocks awayand, finding keeper pins missing in these clevises also, he issued a citationto Consol for failing to keep mobile and stationary machinery in safe operatingcondition. Tr. I 60-61, 75; Exs. P–3 at 1, R–1.

            Thereafter,Young inspected the intersected alleged gas well, and observed that the 10-inchdrill hole was full of water, contained no casing, had no sign of clay, oil, orgas smell, and was located too far away from any gas wells on Consol’s mine mapto be identifiable as one of them. Tr. I 77-79, 171-72, 217; Ex. P–4 at 8. Thesefactors caused Young some skepticism as to whether the drill hole was actuallya gas well. Tr. I 76, 171-72. Believing, with absolute certainty, that Consolhad mined through a drill or bore hole that penetrated the coal seam, Youngcited Consol for its failure to accurately plot on its official mine map alldrill holes that penetrate the coalbed being mined. Tr. I 75-79; Ex. P–4 at 1.

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

** **

**A.   ****Citation No.9204073**

** **

**1.    ****Fact of Violation**

** **

Inspector Youngissued 104(a) Citation No. 9204073 on November 18, 2020, alleging a“significant and substantial” violation of section 75.1725(a) that was “reasonablylikely” to cause an injury that could reasonably be expected to result in “lostworkdays or restricted duty,” and was caused by Consol’s “moderate” negligence.[1] Ex. P–3 at 1. The“Condition or Practice” is described as follows: 

The Company Number 2, 269, 270, and 271 gate shieldslocated inby the number 26 crosscut on the E32 Longwall Working Section werenot being maintained in safe operating condition. The horizontal keeper pinswhich secure the vertical breakaway pins from becoming airborne when they failunder stress were not in place. The LW face was idled due to intersecting anuncharted borehole which penetrated the coal seam at the time of issuance. Thehorizontal pins were installed into the shield clevises prior to the faceresuming. 

Standard 75.1725(a) was cited 20 times in two years atmine 3607416 (20 to the operator; 0 to a contractor).

 

Ex. P–3 at 1. Thecitation was terminated later that day, when the cited horizontal keeper pinswere properly installed. Ex. P–3 at 1. 

 

            Inorder to establish a violation of one of his mandatory safety standards, theSecretary must prove that the violation occurred “by a preponderance of thecredible evidence.” *Keystone Coal Mining Corp.*, 17 FMSHRC 1819, 1838(Nov. 1995) (citing *Garden Creek Pocahontas Co.*, 11 FMSHRC 2148, 2152(Nov. 1989)). Consol has conceded the fact of violation and the degree ofnegligence charged, but contests the significant and substantial (“S&S”) gravitydesignation of the violation. Jt. Stip. 10; Resp’t Br. at 2, n.5. The Mine Actidentifies a significant and substantial violation as a violation “of suchnature as could significantly and substantially contribute to the causeand effect of a coal or other mine safety or health hazard.” 30 U.S.C. §814(d)(1).

 

**2.    ****Gravity**

** **

The Secretary maintainsthat the violation was S&S because, absent keeper pins, vertical breakawaypins (“breakaway pins”) can work themselves out of position due to the pushingand pulling of the shields, break, become airborne, and injure nearby miners. Sec’yBr. at 11. Respondent counters that breakaway pins only dislodge at theheadgate and tailgate in unusual circumstances, such as an uneven mine floor,which were not present at the time of inspection. Resp’t Br. at 6-7; Resp’tReply Br. at 4. Further, Respondent contends that pins do not become airbornewhen they fail and, even if that were to happen, they would not be reasonablylikely to strike a nearby miner. Resp’t Br. at 9; Resp’t Reply Br. at 4.

The Commission hasrecently restated the four *Mathies* criteria that the Secretary mustestablish in order to prove that a violation is S&S under *NationalGypsum*:

(1) the underlyingviolation of a mandatory safety standard; (2) the violation was reasonably likelyto cause the occurrence of the discrete safety hazard against which thestandard is directed; (3) the occurrence of that hazard would be reasonablylikely to cause an injury; and (4) there would be a reasonable likelihood thatthe injury in question would be of a reasonably serious nature. 

*Peabody Midwest Mining, LLC*,**42 FMSHRC379, 383 (June 2020); *see ICG Illinois, LLC*, 38 FMSHRC 2473, 2475-76(Oct. 2016); *Newtown Energy, Inc.*, 38 FMSHRC 2033, 2036-37 (Aug. 2016); *MathiesCoal Co.*, 6 FMSHRC 1, 3-4 (Jan. 1984); *see also Buck Creek Coal, Inc. v.FMSHRC*, 52 F.3d 133, 135 (7th Cir. 1995); *Austin Power, Inc. v. Sec’y ofLabor*, 861 F.2d 99, 103-04 (5th Cir. 1988) (approving *Mathies*criteria),aff’g 9 FMSHRC 2015, 2021 (Dec. 1987). Resolution of whether a violation isS&S must be based “on the particular facts surrounding that violation.” *Texasgulf,Inc.*, 10 FMSHRC 498, 501 (Apr. 1988); *Youghiogheny & Ohio Coal Co.*,9 FMSHRC 2007, 2011-12 (Dec. 1987).

The fact ofviolation has been conceded, satisfying the first *Mathies*criterion. Thesecond *Mathies*criterion, under the Commission’s *Newtown*refinement language, requires the Secretary to prove the reasonable likelihoodof the violation causing the occurrence of the hazard that the standard targets.*Peabody*,**42 FMSHRC at 383. The Commission explained in *Peabody*that the judge must determine “whether [the] hazard was reasonably likely tooccur given the particular facts surrounding this violation.” *Id.*at 382(quoting *Newtown*,**38 FMSHRC at 2041); *see Consol PennsylvaniaCoal Co.*,*LLC*,**43 FMSHRC 145, 147 (Apr. 2021). “Reasonablelikelihood” is not an exact standard, but rather an evaluation of risk with “aparticular focus on the facts and circumstances presented.” *ICG Illinois*,38 FMSHRC at 2476; *see Newtown*,**38 FMSHRC at 2039. Whenevaluating the third *Mathies* criterion, the judge is to assume that thehazard identified in step two has been realized, and then consider whether thehazard would be reasonably likely to result in injury in the context of“continued normal mining operations.” *Newtown*, 38 FMSHRC at 2045 (citing*Knox Creek Coal Corp*., 811 F.3d 148, 161-62 (4th Cir. 2016)); *PeabodyMidwest Mining*, *LLC*, 762 F.3d 611, 616 (7th Cir. 2014); *BuckCreek*, 52 F.3d at 135; *U.S. Steel Mining Co*., 6 FMSHRC 1573, 1574(July 1984). The Secretary need not prove a reasonable likelihood that theviolation, itself, will cause injury. *Musser Eng’g, Inc.*, 32 FMSHRC1257, 1280-81 (Oct. 2010). At step four, the judge determines whether anyresultant injury would be “reasonably likely to be reasonably serious.” *Newtown*,**38 FMSHRC at 2038. 

**a.    ****Testimony**

Inspector Walter Youngtestified that as he was walking down the face of the longwall, he observedthat the number 2 headgate shield and the number 269, 270, and 271 tailgateshields were missing keeper pins in the clevises. Tr. I 59-61, 75, 122-23. Hestated that mining operations had ceased at 3:30 a.m., and when he issued thecitation later that morning at 8:12 a.m., because he could not find the missingkeeper pins anywhere along the longwall, he estimated that they had beenmissing for at least a couple of passes. Tr. I 74-75, 137. He stated that hedid not inspect the wear and tear on the exposed breakaway pins, and that herequired Consol to replace the keeper pins in order to abate the condition. Tr.I 59, 75, 137. Young explained that breakaway pins are two inches in diameter,four or five inches long, have round tops, and are placed in the clevises toattach the shields to the relay bar. Tr. I 62-63, 122, 139; see Exs. R–2A-2D,2G. He noted that these pins are under the pressure of line and gate shieldsweighing anywhere between 27 and 35 tons. Tr. I 59, 63, 133-34, 140. He furtherexplained that when the shields are left back or fail to advance, the breakawaypins shear to relieve stress on the heavy equipment. Tr. I 63, 67-69, 117, 131,133-140; Ex. P–3 at 6. Additionally, Young testified that keeper pins are designedto hold breakaway pins in place and that, although they may become dislodgedalso and fly out of place under certain circumstances, unlike breakaway pins, theyonly project a foot or two in a very limited area up or down the pan line. Tr. I66, 113-14. Without keeper pins, he asserted, pieces of breakaway pins can flyat least 15 feet, putting miners at risk even when they are standing twoshields away from the shields being operated. Tr. I 70-72, 140, 146, 195. Youngasserted that he has seen “thousands” of breakaway pins fail, and explainedthat broken pieces rarely fly vertically, but rather ricochet off of theshields which, in his opinion, accounts for why some miners are struck withoutsustaining injury. Tr. I 67, 131, 197-98, 214. He identified possible injuries fromdirect contact to include lacerations of the wrist and face, loss of eyes or teeth,and bruising. Tr. I 69-70, 73. Young also testified that, as a former miner,himself, he had personally observed a coworker get hit at the headgate by abreakaway pin, resulting in a deep laceration to his face requiring cosmeticstitches. Tr. I 69-70, 118-21. Finally, Young acknowledged that, as aninspector, he had never seen an accident resulting from projectile breakawaypin fragments, nor did he know of any MSHA or Consol accident reports pertainingto injuries caused by airborne pins. Tr. I 127, 128. 

Enlow Fork safetysupervisor Frank O’Brien testified that the first and last few shields on thelongwall at the head and tailgate are moved by procedures different from shieldmovement in the middle mining zone, rendering the risk of breakaway pin failuremuch less likely at the gates. Tr. I 259, 272-75, 278. He explained that in themiddle mining zone, the shearer is operating at speeds of 45 to 55 feet perminute and, using the SRB automated mode, once the shearer passes, the shieldsautomatically pull in. Tr. I 253, 259, 272, 278-79. He noted that the middle miningzone is where he has seen breakaway pins break when faulty sensors occasionallyfail to advance the shields. Tr. I 272-73, 278-79. He also explained that atthe gates, the shearer operates at a speed of five to ten feet per minute, andthe shields are moved manually at a considerably slower pace. Tr. I 259,274-75, 278-79. Further, O’Brien testified that when shields are moved at the gates,the computer program prevents miners from operating them any closer than adistance of two shields, about 12 feet, away from an advancing shield. Tr. I236, 259, 275-76, 280, 298-99. He stated that if a breakaway pin on a gateshield were to work its way out of place in the clevis, it would simply fall tothe ground and that, throughout his mining career, he had never heard of orseen a breakaway pin become airborne or hurt a miner. Tr. I 229, 269, 272.

Jeremy Fabery,Enlow Fork’s longwall maintenance coordinator, testified that there is areadily available supply of keeper and breakaway replacement pins down thelongwall face on the toes of the shields, themselves, on rings welded to theshearer, and on the parts car outby the section. Tr. II 16-17, 39-40, 45-46. Healso stated that, without keeper pins in place, when the shields pull and push,the breakaway pins work themselves out of place and eventually fall out. Tr. II16, 25-26. Fabery explained that breakaway pins typically fail in the mainmining zone, where the automated SRB system is operating, rather than at thegate ends; he asserted that this happens when shields are left back due tofaulty sensors and the pins, designed to bear the stress instead of the heavyequipment, snap in two rather than shatter. Tr. II 20-23, 28, 43-44, 45-47. Healso acknowledged that breakaway pins can fail at the head and tailgates, butonly under adverse conditions, such as a roof fall. Tr. II 27-28. He testified thatPMC-R computers on the head and tailgate shields allow the shieldmen to pull inthe shields at a distance no closer than two shields away from the shieldsbeing operated, and that this manual process is much more controlled thanautomated SRB shield advancement in the main mining zone. Tr. II 23-25, 34. Finally,Fabery averred that he had never seen nor heard of pins becoming projectile andinjuring anyone. Tr. II 29-32, 42.

**b.    ****Analysis**

Focusingon the second *Mathies* criterion, the discrete safety hazard to which theviolation contributed is breakaway pin fragments dislodging and forciblyprojecting. Resolution of the reasonable likelihood of a hazard occurring mustbe analyzed through the particular facts surrounding the violation and theevidence established by the record. It is undisputed that breakaway pins failunder extreme stress when shields are left back. The record establishes thatthe cited shields, without keeper pins, were located at the head and tailgateof the longwall. Gate shields are manually moved using PMC-R computers, a muchmore controlled process than in the main mining zone, where the automated SRBmode moves the shields at a far faster pace. In the main mining zone, pins failwhen faulty sensors cause line shields to be left back while the pan line ispushed. However, for a pin to fail on a gate shield, the shieldman would haveto manually leave the shield back. While the parties agree that breakaway pinsfail, they disagree about whether they become projectile. The only evidence ofa failed breakaway pin forcibly projecting at the headgate was provided byYoung; however, the balance of his testimony, respecting projectile pins beingcommonplace on the longwall, was non-specific as to whether this occurs in themain mining zone or at the gates.[2] Additionally, by his concession that pinsare less likely to fail on the gate shields, it is reasonable to infer that pinfailure more likely occurs in the faster moving main mining zone.

Despite Consol’scontentions, the evidence of a breakaway pin injuring a miner, combined withthe fact that breakaway pins are under the extreme pressure of moving shieldsweighing up to 35 tons, establishes that pin fragments *can*becomeairborne, even at the gates. However, the Secretary has failed to put forthsufficient evidence to establish the reasonable likelihood of this occurring. Conversely,credible evidence demonstrates that breakaway pins are far less likely to failat the gates because, except for adverse mine conditions on the longwall, the slower,more controlled mining process minimizes the likelihood of shields being left back.Even if pins were to fail at the gates, the evidence establishes that theslower shield movement considerably decreases the likelihood of them becoming projectile.The Secretary does not reckon with this evidence whatsoever. Therefore, under thecircumstances surrounding this violation, the Secretary has failed to prove, bya preponderance of the evidence, the reasonable likelihood**of the breakawaypins on the cited gate shields becoming projectiles without the keeper pins inplace. Consequently, I find that the Secretary has failed to satisfy the second*Mathies*criterion and, therefore, this violation was not S&S.

**3.    ****Negligence**

Consol does notcontest the degree of negligence ascribed to the violation. Resp’t Br. at 2, n.5.The evidence establishes that the missing keeper pins were plainly visible, andthat replacements were readily available. Tr. I 75; Tr. II 40. Indeed, the onlynoted obstructions on the otherwise clean tailgate shields were a rock overeach missing keeper pin, apparently strategically placed to evade Young’sdetection. Tr. I 60-61, 75. Moreover, Consol had almost five hours betweenidling the longwall and Young’s inspection to replace the missing keeper pins. Tr.I 74-75. Accordingly, I find that Consol was appropriately charged withmoderate negligence in violating the standard. 

**B.   ****Citation No. 9204074**

** **

**1.    ****Fact of Violation**

** **

Inspector Youngissued 104(a) Citation No. 9024074 on November 18, 2020, alleging a violationof section 75.1200-1(d) that was “unlikely” to cause an injury that couldreasonably be expected to result in “lost workdays or restricted duty,” and wascaused by Consol’s “low” negligence.[3]Ex. P–4 at 1. The “Condition or Practice” is described as follows:

 

The Operator failed to accurately plot all drill holeswhich penetrate the coalbed being mined on the E32 Longwall Working Section(035-0 MMU). An uncharted borehole was inadvertently mined through at thenumber 39 shield at plus number 87+28. The Operator believes that the unchartedborehole could be Company Well Number 2057, but this borehole is approximately125 feet closer to the Headgate and approximately 122 feet inby where theCompany Number 2057 Well was plotted on the official mine map.

 

Standard 75.1200-1(d) was cited 1 time in two years atmine 3607416 (1 to the operator; 0 to a contractor).

 

Ex. P–4 at 1. Thecitation was terminated later that day, after the intersected borehole wasaccurately plotted on the official mine map. Ex. P–4 at 2. 

 

The Secretarymaintains that a gas well is a drill hole and, therefore, irrespective ofwhether the mined-through drill hole was gas well DNF 2057, a violation ofsection 75.1200-1(d) occurred because it was not accurately plotted on theofficial mine map. Sec’yBr. at 14-16.Consol makes counter arguments that the wrong standard was cited because a gaswell is not a drill hole and, even if it were, it did not have fair notice ofsuch classification. Resp’tBr. at 14-18, 24-25.Consol also contends that in order to prove a violation of the standard, theSecretary must produce a copy of the official mine map, and failed to do so. Resp’t Br. at23-24.Further, Consol asserts that by plotting gas well DNF 2057 in accordance withits Plan for Mining Operations Near a Well Believed Not to Exist, it satisfiedthe mapping requirements of section 75.1200-1(d). Resp’t Br. at20-21. Finally,Consol asserts that the mined-through hole was gas well DNF 2057 and, since itwas plotted at the “best estimated” location, the official mine map wasaccurate. Resp’tBr. at 21-23.

 

**a.    ****Testimony**

InspectorWalter Young was dispatched to Enlow Fork on November 18 after the mine had reportedto MSHA earlier that morning that it had cut through a suspected gas well. Tr. I26-27. Young testified that when he arrived at the mine, he looked at thepre-shift and on shift record books, and a map that Consol provided to him showinggas wells in the active mining area. Tr. I 30-32; Ex. P–3 at 23. Young, FrankO’Brien, and Justin Higman proceeded underground to the E-32 longwall section where,at the number 39 shield, Young observed the 10-inch diameter drill hole. Tr. I33, 77, 79. No methane was detected at the top of the drill hole and more thanfive percent methane was detected at the bottom, it was full of water,contained no casing, and there was no sign of clay, oil, or a gas smell. Tr. I 77-79;Ex. P–4 at 8. Young testified that he elected to cite a section 75.1200-1(d) violationbecause he could not be 100 percent certain that the uncharted drill hole was agas well, but that it was certainly a drill hole that penetrated the coal seam.Tr. I 76, 163, 171. He explained that gas or oil wells often have gray clayaround them and a musty smell but, in this case, nothing other than the size ofthe drill hole and the presence of methane at the bottom suggested that it wasa gas well. Tr. I 82-84, 171. Young further testified that later in hisinspection, he examined the official mine map, as well as the copy hanging onthe wall across from the foreman’s office, and he confirmed that the drill holewas not accurately plottedon the officialmap. Tr. I 44, 105, 111-12, 160. 

Safetysupervisor Frank O’Brien testified that he believed the mined-through hole tobe a gas well due to its diameter, and he agreed that it could be classified asa drill hole. Tr. I 283, 299. He opined that the drill hole was DNF 2057, a gaswell existing on old producer maps that 18 Karat had not been able to find onthe surface, and based his belief on the fact that the drill hole was in theapproximate area where the search for DNF 2057 had been conducted. Tr. I286-91. 

Consolproject engineer and former 18 Karat project manager Matthew Ruckle alsotestified that he believed the intersected drill hole to be gas well DNF 2057. Tr.II 85. Ruckle stated that he coordinates contractor 18 Karat’s surface searchesfor old gas wells, and ensures that they are plugged underground for safemining once they are located. Tr. II 54, 58-59, 115. He explained that oldproducer and farm-line maps are studied to identify wells within 500 feet ofplanned mining and, because the maps were hand-drawn and created prior topromulgation of regulations requiring drilling permits, they are not veryaccurate and make locating the wells particularly difficult. Tr. II 53-56. Rucklefurther explained that alleged wells, i.e., those not found by 18 Karat, aremarked DNF (“Did Not Find”) on the old maps and in their estimated location onConsol’s official mine map. Tr. II 56, 64, 145. He testified that the surface searchfor DNF 2057 had included the area where Consol intersected the drill hole but,since the surface area is now a golf course, no evidence of the drill hole wasever found, even after it had been intersected underground. Tr. II 82, 84. WhileRuckle opined that the intersected drill hole was DNF 2057 based on itslocation and diameter, he acknowledged that the location where Consol minedthrough it was 122 feet inby and at least 125.4 feet closer to the headgate thanwhere DNF 2057 was plotted on the mine map. Tr. II 86, 88, 137-38, 147; Ex.P–4at 10, see Ex. R–6.

**b.    ****Analysis**

The standard atissue is clear on its face, unambiguously imposing a duty to accurately depicton mine maps drill holes penetrating the coalbed being mined. Indeed, infinding a violation of section 75.1200(h), requiring adjacent mine workingswithin 1000 feet of active mining to be accurately shown on mine maps, the Commissiondetermined that “the plain meaning of section 75.1200 is that a mine map’s depiction. . . must be accurate.” *Musser,*32 FMSHRC at 1273-74. This plainreading of the standard is consistent with the legislative history of section 215of the Coal Act, the predecessor provision to section 312 of the Mine Act,which states that “[r]ecent inundation accidents . . . point up the need foraccurate mapping of mines. Active mines often cut through into adjacent mines,or worked out and abandoned areas of the same mine, because of the lack of mapsor because of inaccurate maps.” S. Rep. 91-411, at83 (1969). 

 

Consol assertsthat “the hole which was intersected underground was unquestionably a gas well,”and that section 75.1200(k), requiring producing or abandoned oil and gas wellsto be accurately shown on mine maps, was the appropriate standard to have cited;therefore, it contends, the citation should be vacated. Resp’t Br. at 14-18. Further,Consol argues that it did not have fair notice that a gas well is a drill hole.Resp’t Br. at 24-25. Conversely, the Secretary established that certaincharacteristics of the drill hole cast some measure of doubt as to whether itwas a gas well. It is well settled that more than one standard can beapplicable to a violation, and the instant citation should stand as long as thecited standard is broad enough to encompass the violation. *See, e.g.*, *JimWalter Res., Inc*., 7 FMSHRC 493, 495-98 (Apr. 1985) (finding a regulationgoverning the transport of “materials” to include the transport of coal,despite the judge's finding that a more appropriate standard existed); *seealso Dawes Rigging & Crane Rental*, 36 FMSHRC 3075, 3077 (Dec. 2014) (notingthe ambiguity in the scope of the regulation’s application, but finding thedictionary meaning of the term “materials” “sufficiently broad” to encompass asuspended boom).**The term “drill hole” is defined broadly as “a hole inrock or coal made with an auger or drill,” and is synonymous with the term“borehole.” *Drillhole*, Dictionaryof Mining, Mineral, and Related Terms (2d ed. 1996). The term “well” isdefined as “a borehole or shaft sunk into the ground” for numerous purposes,including “obtaining water, oil, . . . [or] gas,” and is “commonly used as asynonym for borehole or drill hole.” *Well*, Dictionary of Mining, Mineral, and Related Terms (2d ed.1996). The term “drill hole” is “sufficiently broad” to encompass gas wellsand, like the Commission in *Dawes*, I “decline to read a limitation intothe standard where none exists.” 36 FMSHRC at 3077. Further, not only doConsol’s own witnesses interchangeably use “gas well,” “drill hole,” and “borehole,” but the broad definition of “drill hole” should have put Consol onnotice that a gas well is one of many types of drill holes. Accordingly, I findthat Consol had fair notice of section 75.1200-1(d)’s requirements, and thatthe standard is applicable to this violation.

 

Consol alsocontends that the Secretary could only prove a violation of section75.1200-1(d) by introducing a copy of its official mine map into the recordand, because of its failure to do so, the citation should be vacated. Resp’t Br. at 23-24.The record establishes that the official mine map is very large, measuring 12by 12 feet, and that Young did, in fact, inspect it on-site, as well as thecopy hanging outside of the foreman’s office, in addition to the smaller mapprovided to him of the active longwall section where the drill hole was intersected.Further, the smaller maps in evidence are accurate copies, depictinginformation included on the official mine map by Consol. Moreover, Consolacknowledges that the drill hole was not depicted on any of the maps, officialor otherwise, corresponding to the location where it was intersected. See**Tr.I 300, 301-03; Tr. II 137-38,147. Therefore,Consol’s argument is unavailing.

 

Consolfurther argues that an MSHA-approved modification for section 75.1700 extendsto its Plan for Mining Operations Near a Well Believed Not to Exist (“DNF WellPlan”), a part of its MSHA-approved Cut Through Plan and, in essence, transformsthe DNF Well Plan, itself, into a “reasonable precautions plan” under the *Musser*“alternative precautions” exception.[4]  Resp’t Br. at 19-21(citing In re Petition for Modification, Docket M-2014-011-C (Jun. 16, 2017)); Resp’t Reply Br. at 9-10;Ex. P–4 at 25-35. Therefore, according to Consol, by plotting gas well DNF 2057in accordance with its DNF Well Plan, it met the requirements of section75.1200-1(d). Rep’t Br. at 21; Resp’t Reply Br. at 9-10. The Commission notedin *Musser* that an operator may petition the Secretary, under section101(c) of the Mine Act, to “modify the strict application of section 75.1200”if adequate “alternative precautions” are implemented. 32 FMSHRC at 1275. BeyondConsol’s bare assertions in its Briefs, its blanket expansion theory as to howthe MSHA-approved modification for section 75.1700 permits modified complianceof section 75.1200 through its DNF Well Plan, is difficult, at best, todiscern. Section 101(c) contains specific petition, investigation, and noticerequirements which the approved Cut Through Plan, in and of itself, does notsatisfy. 30 U.S.C. § 811(c); see Ex. P–4 at 20-24.The record is simply bereft of any indication that Consol petitioned MSHA for amodification of section 75.1200, and Consol advances no authority in support ofits position that mere adherence to its DNF Well Plan satisfies the standard’smapping requirements. Consequently, Consol is held to the strict application ofsection 75.1200-1(d) unless or until, at some later date, it obtains anapproved modification from MSHA.

Finally, Consol assertsthat the intersected drill hole was alleged gas well DNF 2057 and, since it wasplotted at the “best estimated” location, it was mapped accurately. Resp’t Br.at 21-23. The foundation of this argument rests on Consol’s misplaced interpretationof the term “accurate.” In discussing the mapping violation of section75.1200(h) in *Musser*, the Commission emphasized that “because thestandard requires that the operator maintain an ‘accurate and up-to-date map,’it follows that if the mine map fails to meet these requirements, the operatorhas violated the standard, regardless of whether it did everything possible tolocate an accurate historical map of adjacent mine workings.”**32 FMSHRCat 1272; *see also Dominion Coal Corp*.,**35 FMSHRC 3557, 3594 (Dec.2013) (ALJ) (noting that section 75.1200 does not require operators to makereasonable efforts to plot gas wells on mine maps, but rather imposes anabsolute duty to be accurate). The strict liability nature of the Mine Act attachesliability, irrespective of operators’ best efforts at compliance and, consequently,Consol’s argument, i.e., that its best estimate is tantamount to accurateplotting, runs afoul of the clear mandate of the standard. Furthermore, resolutionof whether the intersected drill hole was, as Consol contends, gas well DNF2057, has no bearing on Consol’s duty to plot the drill hole accurately. Putanother way, assuming, *arguendo*,**that the drill hole intersected byConsol on November 18 was gas well DNF 2057, it was not accurately plotted onthe official mine map. End of story. It follows that Consol violated section75-1200-1(d).

 

**2.    ****Gravity andNegligence**

** **

Therecord establishes that low levels of methane in the drill hole made itunlikely for there to be an ignition and injury. Tr. I 103-104. Further,Young’s testimony was credible, that if there were an ignition, two minersoperating the shearer would reasonably be expected to incur lost workdays orrestricted duty as a result of burns, smoke inhalation, concussions, or brokenbones. Tr. I 105. Accordingly, I find the Secretary’s gravity designations forthis violation to be appropriate. 

TheSecretary asserts that Consol’s negligence was low in violating the standarddue to its extensive efforts to locate old, abandoned gas wells. Sec’y Br. at19-20. Credibleevidence, as Young acknowledged multiple times, demonstrates Consol’s diligencein searching for DNF 2057 and, even after the drill hole was mined through,there were no surface indicia of its existence on the golf course. See Tr. I104-105, 182-84, 200, 286-89; Tr. II 53-56, 83-84;    Ex. R–7.Considering the antiquated, inaccurate producer maps and drastically alteredsurface conditions, no prudent operator, conducting the most exhaustive search,could have likely located the drill hole prior to its intersection, and I findno fault in Consol’s fruitless efforts. Therefore, I find that Consol was notnegligent in committing the violation.

 

**IV.         ****Penalty**

** **

While theSecretary has proposed a total civil penalty of $905.00 for the violations,the judge must independently determine the appropriate assessment byproper consideration of the six penalty criteria set forth in section 110(i) ofthe Mine Act:

 

(1) the operator's history of previous violations; (2)the appropriateness of the penalty to the size of the business of the operator;(3) whether the operator was negligent; (4) the effect on the operator'sability to continue in business; (5) the gravity of the violation; and (6)whether good faith was demonstrated in attempting to achieve prompt abatementof the violation.

 

30 U.S.C. § 820(i); *seeSellersburg Co.*, 5 FMSHRC 287, 291-92 (Mar. 1983), *aff'd*, 736F.2d 1147 (7th Cir. 1984).

 

            Applyingthe penalty criteria, and based on a review of MSHA’s online records, I findthat Consol is a large operator. The record also establishes that Consoldemonstrated good faith in achieving rapid compliance after notice of theviolations, and the parties stipulated that imposition of the proposed penaltywill not adversely affect Consol’s ability to remain in business. Jt. Stip. 6. Considerationof Consol’s history of violations, gravity, and negligence factors for eachviolation follows below.

 

**A.   ****Citation No.9204073**

** **

It has beenestablished that this non-S&S violation was unlikely to cause an injurythat was reasonably likely to result in lost workdays or restricted duty, andwas caused by Consol’s moderate negligence. In the fifteen-month periodpreceding issuance of this citation for missing horizontal keeper pins, nineviolations of section 75.1725(a) became final Orders of the Commission. Ex. P–5at 15. Given that section 75.1725(a) is a general equipment maintenancestandard, and that the record is lacking as to the specific nature of thoseviolations, I find Consol's violation history neither a mitigating noraggravating factor in assessing an appropriate penalty. The Secretary hasproposed a penalty of $782.00 by application of his Part 100 penalty table toan S&S violation. Applying the civil penalty criteria, I find that apenalty of $275.00****is appropriate.

** **

**B.   ****Citation No. 9204074**

** **

It has beenestablished that this non-S&S violation was unlikely to cause an injurythat was reasonably likely to result in lost workdays or restricted duty, andthat Consol was not negligent in its commission. In the fifteen-month periodpreceding issuance of this citation for a mapping violation, one violation ofsection 75.1200-1(d) became a final Order of the Commission, a mitigatingfactor in assessing an appropriate penalty. Ex. P–5 at 13. The Secretary hasproposed a penalty of $123.00 by application of his Part 100 penalty table. Applyingthe civil penalty criteria, I find that a penalty of $100.00 is appropriate. 

** **

** **

**ORDER**

 

**WHEREFORE,**it is **ORDERED**that Citation No. 9204073 is **AFFIRMED**, **as****modified**,****todelete the “significant & substantial” designation, and that Citation No.9204074 is **AFFIRMED**, **as modified**, to reduce the degree ofnegligence to “none,” and that Consol Pennsylvania Coal Company, LLC, **PAY**a civil penalty of $375.00****within 30 days of the date of this decision.[5]**ACCORDINGLY**,this case is **DISMISSED**.

 

 

 

/s/Jacqueline R. Bulluck

                                                                        JacquelineR. Bulluck

Administrative Law Judge

 

 

 

 

Distribution:

 

RyanKooi, Officeof the Solicitor, U.S. Department of Labor, 1835 Market Street, MailstopSOL/22, Philadelphia, PA 19103

kooi.ryan.m@dol.gov

 

JamesP. McHugh, Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329

jmchugh@hardypence.com

 

Kenneth Polka, CLR, U.S. Department of Labor, MSHA, 631 ExcelDrive, Suite 100, Mt. Pleasant, PA 15666

polka.kenneth@dol.gov

 

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

craigaaron@consolenergy.com

----

[1] 30 C.F.R. §75.1725(a) provides: “[m]obile and stationary machinery and equipment shall bemaintained in safe operating condition and machinery or equipment in unsafecondition shall be removed from service immediately.” 

 

[2] Young’sconflicting testimony about his actual observance of this incident does notundermine his overall credibility as to its occurrence, and is viewed as anoverstatement corrected on cross-examination. See Tr. I 70, 118, 120-21.

[3] 30 C.F.R. §75.1200 provides: “[t]he operator of a coal mine shall have in a fireproofrepository location in an area on the surface of the mine chosen by the mineoperator to minimize the danger of destruction by fire or other hazard, anaccurate and up-to-date map of such mine drawn on scale.”

 

30C.F.R §75.1200-1 provides: “[a]dditional information required to be shown onmine maps under § 75.1200 shall include the following:

 (d)All drill holes that penetrate the coalbed being mined.” 

[4] Consol’s usage of“reasonable precautions” terminology refers to the Commission’s “alternativeprecautions” exception in *Musser*. 

[5] Payment should bemade electronically at Pay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO63179-0390. Please include Docket and A.C. Numbers.