FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

February 16, 2022

DECISION AND ORDER

Appearances: Ryan Kooi, Esq., Office of the Solicitor, U.S. Department of Labor,

Philadelphia, Pennsylvania, for the Petitioner

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

Pennsylvania, for the Respondent

Before: Judge Young

SUMMARY

Citation No. 9203910, 30 C.F.R. § 75.904: Failure to properly identify a high-voltage 

(995-volt) circuit breaker. Two continuous miner machines were plugged into adjacent circuit 

breakers, each marked with the same number. 

Facts p. 4 (Slip Op.)

Fact of violation Affirmed p. 5

S&S Affirmed p. 6

Negligence Moderate p. 10

Penalty $700 p. 10

Citation No. 9204098, 30 C.F.R. § 75.370(a)(1): Failure to maintain bleeders safe for 

travel due to standing water, violating the approved Ventilation Plan. Deep water was 

allowed to accumulate in travelway used to examine the bleeders. 

Facts p. 11

Fact of violation Affirmed p. 13

S&S Affirmed p. 14

Negligence None p. 16

Penalty $150 p. 17

I. INTRODUCTION

This case is before me upon petition for assessment of civil penalty filed by the Secretary 

of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

v.

CONSOL PENNSYLVANIA COAL

 COMPANY, LLC,

 Respondent.

 CIVIL PENALTY PROCEEDING

Docket No. PENN 2021-0074

 A.C. No. 36-07416-532307

 

 Mine: Enlow Fork Mine
2

1977, as amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are two citations under 

section 104(a), issued to Respondent, Consol Pennsylvania Coal Company, LLC (“Consol” or 

“Respondent”).1

 The parties presented testimony and documentary evidence at a video 

conference hearing on September 28–29, 2021, and filed post-hearing briefs.

Consol owns and operates the Enlow Fork Mine, located in Greene and Washington 

counties, Pennsylvania. Jt. Stips. 1, 2, 5; S. Post-Hearing Br. at 3 (Jan. 7, 2022) (“S. Br.”). The 

mine is an underground coal mine and is subject to the jurisdiction of the Mine Act and the 

Commission. Jt. Stips. 3, 4; S. Br. at 3. Citation No. 9203910 alleged that Respondent failed to 

properly identify a 995-volt circuit breaker, posing a risk of miners inadvertently removing 

power from the wrong equipment. Citation No. 9204098 alleged that Respondent failed to 

comply with its approved Ventilation Plan (“Plan”) by permitting the accumulation of standing 

water that prevented safe travel. For reasons set forth below, I AFFIRM both citations with 

their assessed gravity, but I MODIFY the degree of negligence for Citation No. 9204098 from 

“moderate” to “none.”

II. STANDARDS

A. Violation

The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000).

The requirements of a MSHA-approved ventilation plan are enforceable in the same 

manner as mandatory safety standards. See Prairie State Generating Co. v. Sec’y of Lab., 792 

F.3d 82, 93 (D.C. Cir. 2015) (citing Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (D.C. Cir. 

1976)) (“Zeigler recognizes, as do we, both the regulatory character of mine-specific plans, and 

the Secretary’s paramount control over the responsibility for mine-specific plans, which ‘must 

also be approved by the Secretary.’”). Mine operators are generally strictly liable for mandatory 

safety standard violations. See Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 

361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc., 33 FMSHRC 1759, 1764 (Aug. 2011).

B. Gravity

The “likelihood” contemplated within the assessment of gravity is that of the resulting 

injury. A severity assessment of “lost workdays or restricted duty” is defined as “[a]ny injury or 

illness which would cause the injured or ill person to lose one full day of work or more after the 

day of the injury or illness, or which would cause one full day or more of restricted duty.” 30 

C.F.R. § 100.3(e) (2022).

Specifically, a gravity evaluation is different from S&S analysis because it assumes the 

occurrence of the hazard. See Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996) 

1 This docket included ten section 104(a) citations. Eight were settled by the parties and 

approved prior to hearing. See Decision Approving Partial Settlement at 3 (Oct. 26, 2021).
3

(comparing S&S inquiry, which focuses on “the reasonable likelihood of serious injury,” with 

gravity inquiry, which focuses on “the effect of the hazard if it occurs”) (emphasis added).

C. Significant and Substantial (“S&S”)

A violation is properly designated as S&S if, “based upon the particular facts surrounding 

the violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 

1984) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)). The four 

elements required for an S&S finding are expressed as follows:

(1) [T]he 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 the 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) (integrating the refinement 

of the second Mathies step in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016)).

An S&S determination must be based on the assumed continuation of normal mining 

operations. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ must be based on the facts existing at the time of issuance and assuming continued 

normal mining operations, absent any assumption of abatement or inference that the violative 

condition will cease.”).

D. Negligence

Judges may use a traditional negligence analysis, rather than relying upon Part 100 

definitions. Brody Mining, LLC, 37 FMSHRC 1687, 1701–02 (Aug. 2015) (citing Jim Walter 

Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014) (“JWR”); Sellersburg Stone Co. v. 

FMSHRC, 736 F.2d 1147, 1151–52 (7th Cir. 1984)) (Part 100 regulations apply only to the 

proposal of penalties by MSHA and the Secretary of Labor; under both Commission and court 

precedent, the regulations do not extend to the independent Commission, and thus the MSHA 

regulations are not binding in any way on Commission proceedings.”). The reasonable prudent 

person standard should be that of one “familiar with the mining industry, the relevant facts, and 

the protective purposes of the regulation.” Id. at 1702.

E. Penalty

The Commission considers the following factors, from Section 110(i) of the Act, in 

assessing penalties under the Act:

[T]he operator’s history of previous violations, the appropriateness of such 

penalty to the size of the business of the operator charged, whether the operator 
4

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

gravity of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i) (2006).

III. CITATION NO. 9203910

A. Factual Findings

This citation was issued by Inspector Robert Hutchison on February 17, 2021. Ex. P-1. 

He assessed the gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” and 

one person affected. Id. He assessed negligence as “moderate.” Id. The inspector stated:

The 995 volt circuit breaker servicing the Co. # 25 continuous miner is 

improperly identified as the Co. # 43 continuous miner. This condition could 

cause a miner to inadvertently remove power from the wrong machine which 

would cause lost work day injuries including electrical shock or burns. Both 

cables are plugged into the power center between the #4 and #3 entries at 36 

crosscut of 2 South Left section (MMU#050-0).

Id. Two of the circuit breakers were marked as the #43 continuous miner—one was #43, and the 

other was actually #25. See Tr. Volume I at 59, 131 (Sept. 28, 2021) (“Tr. I”). Mr. Heffelfinger, 

Consol’s safety inspector, acknowledged that the #25 continuous miner was not identified 

properly at the top of the breaker. Id. at 146. He did state, however, that there was a brass tag 

affixed to the cable, where it was plugged into the breaker, that properly identified the cable as 

that of the #25. Id. 

In his testimony, the inspector acknowledged this tag, but he also stated that it was 

difficult to find or read because it was a “half-inch thick diameter brass tag that did have mud 

and debris on it” and was located under the plug instead of on top. Id. at 62, 131, 142. Mr. 

Heffelfinger acknowledged that the breaker marking and cable tag should match. Id. at 148.

The #25 had been brought into the mine between three and four days prior to the 

inspection. Id. at 86, 132. The #25 was not in operation, and there was no testimony as to 

whether it was fully assembled or whether the cable was plugged into the continuous miner 

itself. Id. at 99–100, 133. The #25 breaker was not switched on at the time of inspection. Id. at 

71. The #43 was in operation. Id. at 77. The breakers were located next to one another. Id. at 

87. Neither machine was within sight of the load center. Id. at 65.

The inspector did not observe damage to cables. Id. at 90. However, he described the 

likely need to fix cables damaged in the course of continued normal mining operations by 

making a splice or reentering the cable—both of which require handling exposed conductors. Id.

at 65–68. He stated that cables often get damaged by mobile equipment, shuttle cars, or scoops, 

when they are over roadways, and that he generally finds damaged cables about once per month. 

Id. at 65, 104. These cables carry 995 volts. Id. at 69. While the inspector acknowledged that 
5

people have been killed by such voltage, id., he believed the most likely injury would be severe 

burns or shock. Id. at 75.

Mr. Heffelfinger testified that he brought the #25 into the mine a few days prior. Id. at 

132. He stated that it had not yet been examined. Id. at 135, 138. He noted, and the inspector 

acknowledged, the existence of “lockout, tagout, tryout” procedures, that the cable would be 

“blocked” before maintenance, and that an exam would be conducted before using the #25. Id.

at 93–94, 138, 139. Further, he stated that permissibility exams are done in the normal course of 

mining. Id. at 149. Section foremen inspect the load center twice per day. Id. at 76, 96.

B. Disposition

1. Violation

The cited standard states, “Circuit breakers shall be marked for identification.” 30 C.F.R. 

§ 75.904 (2022). The Secretary argues that the standard requires proper labeling. S. Br. at 12. I 

find that this is a reasonable interpretation of the regulation.

The Secretary’s interpretation is reasonable where it is “logically consistent with the 

language of the regulation[s] and . . . serves a permissible regulatory function.” Gen. Elec. Co v. 

U.S. Env’t Protection Agency, 53 F.3d 1324, 1327 (D.C. Cir. 1995). Here, the Secretary has 

interpreted this regulation “without the aid or constraint” of rulemaking procedures, so he is 

entitled to deference to the extent that it has the “power to persuade.” See Knox Creek Coal 

Corp. v. Sec’y of Lab., 811 F.3d 148, 160 (4th Cir. 2016) (quoting Skidmore v. Swift & Co., 323 

U.S. 134, 140 (1944)). I therefore weigh its thoroughness, validity, and consistency. See id.

The Secretary provided credible testimony that a miner intending to deenergize one piece 

of equipment might deenergize another because another circuit breaker was marked with the 

correct equipment’s identification. See Tr. I at 72. First, this interpretation is consistent with the 

language because the regulation requires the breakers to be marked for identification. Plain 

meaning dictates that breakers should be identified. The only logical reason for such a 

requirement is to enable the control of power to the specific equipment that a miner intends to 

operate or maintain.

Second, this interpretation serves a permissible regulatory function. The Secretary’s 

reasoning is valid because the regulation is intended to protect miners—in this case, from the 

danger of electrocution or serious injury.

I find that the Secretary proved the violation by a preponderance of the evidence. There 

were two breakers marked as #43. One connected to the #43, but the other was for the #25. 

Therefore, the breaker for the #25 was improperly identified. This is sufficient to establish a 

violation under the strict liability applied to mandatory safety standards.
6

2. Gravity

a. Likelihood

The Secretary asserts that the injury is reasonably likely. If the hazard—attempting to 

repair a cable that had not been properly deenergized—occurred, it is reasonably likely to result 

in electrocution or serious injury if a miner contacts bare conductors. I have found that a miner 

may contact bare conductors while repairing cables. I therefore affirm the assessed likelihood.

b. Severity

The Secretary provided credible testimony that contact with uninsulated conductors while 

repairing an energized cable could result in severe burns or shock, or even death. I find that 

electric shock or burns could reasonably result in a miner missing at least a full day of work. I 

affirm the assessed severity.

c. Number of Persons Affected

The inspector assessed that only one miner would be affected by the hazard. I agree that, 

logically, one miner would be repairing the cable to contact exposed conductors. Further, I find 

it reasonable that another miner would not contact the cable after finding that the other miner 

was injured during that activity. I affirm the assessed number of persons affected.

3. S&S

I affirm the S&S designation for the following reasons. 

a. Step 1: The Violation has Been Established.

An improperly marked circuit breaker is sufficient to constitute an underlying violation of 

a mandatory safety standard for the purposes of Mathies Step 1. See supra Section III.B.1.

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—a miner 

deenergizing the wrong equipment.

Mathies Step 2 is a two-step process: (1) determine the specific hazard the standard is 

aimed at preventing; and (2) determine whether a reasonable likelihood exists that the hazard 

against which the mandatory standard is directed will occur. Newtown Energy, Inc., 38 

FMSHRC at 1868. This finding must be based on “the particular facts surrounding the 

violation.” Northshore Mining Co., 38 FMSHRC 753, 757 (2016).

Here, the standard requires proper identification of circuit breakers to inform miners 

which equipment they are powering or deenergizing. Thus, the hazard is the deenergizing of the 

wrong equipment prior to conducting maintenance on the equipment or cable.
7

The Secretary provided testimony that two breakers at the power station were labeled as 

continuous miner #43 (though one was in fact the #25), that cables are often damaged during 

normal mining operations, and that repair requires handling bare conductors. The Secretary 

argues that the Commission acknowledges danger even when there are no exposed copper 

conductors. S. Br. at 14–15; see Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1284–86 

(Dec. 1998); U.S. Steel Mining Co., 6 FMSHRC 1573, 1575 (July 1984).

The Secretary’s reliance on these decisions is misplaced because both cases involved 

exposure to damaged cables and different regulatory standards.2

 

Nonetheless, I find that the violation was reasonably likely to result in a miner 

deenergizing the wrong equipment, risking electric shock. The inspector described the methods 

of cable repair requiring contact with bare wires. He credibly stated that cable damage and 

subsequent repair are common. 

The fact that another breaker was labeled #43 is sufficient for me to conclude that a miner 

might reasonably deenergize the wrong cable before conducting a repair. A miner who finds 

what he is looking for might stop looking and would fail to notice that there was another breaker 

marked with the same number. A miner might not look for or see the mismatched tag, especially 

if it was below the cable and obscured by mud. Therefore, the violation—failure to properly 

identify a breaker—is reasonably likely to result in the discrete safety hazard against which the 

regulation is directed—deenergizing the wrong equipment before repair.

Respondent cites two ALJ cases to assert that Step 2 requires actual—not just 

theoretical—potential of the proffered event. These decisions do not control my decision here. 

As ALJ decisions, they are non-precedential. Further, neither case involved an S&S evaluation. 

Both cases instead dealt with imminent danger orders. Jim Walter Res., Inc., 29 FMSHRC 1043, 

1043 (Nov. 2007) (ALJ); Consol of Ky., Inc., 30 FMSHRC 1, 1 (Jan. 2008) (ALJ).3

 Here, the 

2 The operator in U.S. Steel Mining Co. failed to fully cover a gash in a cable, but the wires 

inside still had insulation apparently intact. 6 FMSHRC at 1573. The Commission affirmed the 

judge’s S&S finding because the lack of both layers was sufficient to put miners at risk of 

electric shock. Id. at 1575.

The Commission in Harlan Cumberland Coal Co. affirmed a judge’s S&S finding where 

a splice was not completely insulated. 20 FMSHRC at 1285, 1286. The Commission rejected 

the argument that reasonable likelihood of injury could not be established where there were not 

exposed copper leads. Id. at 1286. Both cases are inapposite to my evaluation here. There is no 

cable damage alleged for me to apply the Commission’s finding that danger exists because of the 

protection degradation and lack of knowledge about the integrity of the internal wire insulation.

3 Imminent danger orders presume that if normal mining continues, there will be a danger of 

severe injury or death from a known hazard it can be abated. Here, we must determine whether a 

hazard not yet present may develop, and we presume that it will not be discovered or abated if 

so. But even if I applied the standard suggested by respondent, the case here is distinguishable.
8

dangerous condition would be created by deenergizing the wrong equipment before conducting 

repairs. The #43 miner was operating at the time. If a miner needed to repair the cable on the 

#43 miner—a fairly common occurrence—it is reasonably foreseeable that he could deenergize 

the mislabeled #25 instead—creating the contemplated hazard.

Respondent argues that the Secretary failed to demonstrate that the #25 was energized or 

would be without an examination, or that miners would be exposed to an energized, damaged 

cable in normal mining operations. Resp’t Post-Hearing Br. at 8 (Jan. 7, 2021) (“Resp’t Br.”). 

In support, it states: the #25 was brought underground only recently; the #25 breaker was not 

powered; no cables were damaged; the #43 was identified correctly; and it would have conducted 

an examination before use. Id.

The recent installation may support a modification in negligence, but it does not negate 

the fact that the #25 is plugged into a breaker marked #43. The proper identification of the #43 

adds nothing because the danger is the possibility that a miner wanting to deenergize the #43 will 

deenergize the #25 because it is improperly marked as #43. That Respondent would conduct an 

exam first relies on miner precaution, which is irrelevant to an S&S analysis. See Sec’y of Lab. 

v. Consolidation Coal Co., 895 F.3d 113, 118 (D.C. Cir. 2018)

The contentions that the violative breaker was not powered, and that no cables were 

damaged at the time of inspection, are overcome by the requirement to assume the continuation 

of normal mining operations. The #25 was already plugged in, and the cables were running to 

the machine. Therefore, I assume, in normal operations, that the improperly marked #25 would 

be energized, and that the cables would require eventual repair from common mining operation 

damage. See U.S. Steel Mining Co., 6 FMSHRC at 1574 (holding that, in the Mathies analysis, 

one “cannot ignore the relevant dynamics of the mining environment or processes”).

The inspector in Jim Walter Resources, Inc. improperly assumed a possible roof fall as a 

potential ignition source. 29 FMSHRC at 1045 (failing to note any indications of imminent roof 

fall or other roof hazards). This was, therefore, pure conjecture. Id. at 1048. Where it is 

incorrect to assume a roof fall, the standard here is logically aimed at ensuring equipment can be 

properly deenergized, which is necessary for movement or maintenance of the equipment or 

cables. I have found the reasonable likelihood of damage to the cables, and the necessity for 

deenergizing them for repair, to be supported by credible testimony about the conditions and 

practices in the mine environment.

A withdrawal order was issued in Consol of Kentucky, Inc. because of speculation that 

electrical equipment and cables could be left in the area as an ignition source. 30 FMSHRC at 1, 

6, 7 (noting no credible evidence that such equipment was left in the area, making ignition, at 

best, a theoretical possibility). A judge cannot assume the presence of an ignition source that is 

not established as present or imminent when reviewing an imminent danger order, but may find 

that conditions arising in the continuance of normal mining operations may result in the 

emergence of a hazard in the future.
9

c. Step 3: It is reasonably likely that a failure to deenergize the correct 

equipment would cause an injury—electrocution.

Mathies Step 3 asks whether the hazard, not the violation itself, is reasonably likely to 

cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the 

likelihood of injury, judges must assume the occurrence of the hazard. See Newtown Energy, 

Inc., 38 FMSHRC at 2037.

I assume the occurrence of the hazard—a miner conducting repairs on an energized cable 

because he deenergized the wrong [improperly marked] continuous miner at the breaker. The 

Secretary provided undisputed testimony that contact with a live cable during repairs could result 

in electrocution. I therefore find that the hazard is reasonably likely to result in an injury.

Respondent correctly notes that the Commission has held it insufficient that a violation 

“could” result in an injury. Wolf Run Mining Co., 32 FMSHRC 1669, 1678 (Dec. 2010) 

(remanding for more precise discussion of potential injuries). However, I do not find only that 

an injury could occur. I find that one is reasonably likely to occur during normal mining 

operations because of the improperly identified breaker.

I reject Respondent’s contentions:

a) That the #43 was identified properly. Resp’t Br. at 10. While true, the hazard of 

injury results from the improper marking of the #25 breaker as #43. 

b) That the breakers at issue were next to each other, so that a miner could see both and 

would deenergize both or look at the cable tag to be safe. Id. This all relies on miner 

precaution—irrelevant to Mathies Step 3. Consolidation Coal, 895 F.3d at 118. 

c) That the #25 was recently brought in and was not energized. Resp’t Br. at 10. The 

machine would be energized during continued normal mining operations because it was brought 

into the mine to be used in those operations. See supra Section III.B.3.b. 

d) That the #25 would have been properly identified prior to use. Resp’t Br. at 11. This 

again assumes miner precaution.

e) Finally, that there were no issues with any of the equipment. Id. I assume the 

necessity of repairs based on credible inspector testimony and the “relevant dynamics of the 

mining environment or processes.” See U.S. Steel Mining Co., 6 FMSHRC at 1574.

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature—severe burns or shock.

An inspector’s conclusion that a possible injury is of a reasonably serious nature has been 

held sufficient for Mathies Step 4. See Consol Pa. Coal Co., 43 FMSHRC 145, 149 (Aug. 2021) 

(finding it sufficient that the inspector characterized the potential injury as “serious” and noted 

potential injuries). The Commission also does not require a specific type of injury for it to be 

considered serious. See S&S Dredging Co., 35 FMSHRC 1979, 1981–82 (July 2013).

Here, the Secretary provided credible, undisputed testimony that that the hazard could 

result in severe burns or shock, or even death. Respondent only addressed the likelihood of 
10

injury, see Resp’t Br. at 9–11, making no assertions about the severity of the injury if it occurred. 

I find it is reasonably likely that an injury that could include electrocution would be a reasonably 

serious injury.

4. Negligence

I find that negligence was properly assessed as “moderate.” The foremen charged with 

inspecting the load center are familiar with the mining industry and relevant facts. They should 

have been familiar with the protective purpose of labeling the breaker properly to identify which 

equipment it powers. Therefore, I find that a reasonable prudent person in their position should 

have known about the violative condition and acted to remedy it.

Respondent clearly could have known of the condition because it provided no rebuttal to 

the inspector’s contention that the foreman inspects the load center twice per day.4

 While it is 

possible that the #25 miner was only brought into the mine within the last inspection cycle, it 

was plugged into a breaker with the wrong marking, the same as another breaker in that load 

center, and nobody noticed it during the installation or subsequent examinations. Further, the 

existence of a small tag on the cable with the correct marking does not negate the obvious 

violative condition of the more apparent, improper identification on the breaker.

5. Penalty

The Secretary has entered Respondent’s violation history [MSHA Directorate of 

Assessments, Assessed Violation History Report] into evidence. See Ex. P-6. I have reviewed 

Respondent’s general and repeat violations, and I find that the Secretary has properly considered 

Respondent’s minimal violation history in his calculation. I agree that the Secretary has properly 

evaluated the size of the mine in his calculation. The parties have stipulated that payment of the 

penalty will not affect Respondent’s ability to continue in business. Jt. Stip. 6; S. Br. at 2.

The proposed penalty was based, in part, on the negligence [moderate] and gravity

[reasonably likely] assessed in the citation. While I affirm the negligence and gravity as 

assessed, I do find that the operator’s negligence here was at the low end of the moderate scale 

due to its proactive adoption of a program, not required by the regulations, to “lock-out, tag-out, 

try-out” equipment. The inspector acknowledged that he was aware of the program. One cannot 

rely on this program, and the miner cooperation and precaution upon which it depends, as an 

absolute protection against injury. But it seems logical that the program would reduce the 

likelihood of injury in these circumstances, and I find that the operator should be credited for 

that.

4 It is somewhat ironic that the operator asserts that a miner would have noted and avoided the 

hazard, yet a foreman charged under the Act with the responsibility of identifying hazardous 

conditions failed to do so in this case. This is not a criticism of the foreman, but an observation 

on the dangers of confirmation or other biases and the possible effect of time and other pressures 

and distractions on miners working in a challenging, dynamic underground environment. 
11

The citation was terminated almost immediately by properly marking the breaker as #25, 

so the operator rapidly complied upon notification. Thus, Respondent demonstrated good faith 

in achieving rapid compliance following citation. Taking into account both the gravity of the 

violation—particularly, the S&S finding—and the mitigation of that gravity by the “lock-out, 

tag-out, try-out” initiative, I assess a penalty of $700. 

C. Conclusion

For the above reasons, I affirm the citation as written and assess a penalty of $700.

IV. CITATION NO. 9204098

A. Factual Findings

This citation was issued by Inspector Walter Young on February 8, 2021. Ex. P-3. He 

assessed gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” and one 

person affected. Id. He assessed negligence as “moderate.” Id. The description read, in part:

The Mine Operator failed to comply with their approved mine Ventilation Plan . . 

. in that, the perimeter of the Bleeder system was not maintained safe for travel. 

Accumulations of dark, orange, murky, standing water were permitted to 

accumulate . . . at various locations[]. These areas contain tripping hazards in the 

form of yellow air lines, slick lines, suction hoses, rocks, coal sloughage, crib 

blocks, rocks and other debris which could not be seen under the surface of the 

colored water.

Id. Respondent’s Plan was approved by MSHA on February 26, 2020. Ex. P-5, MSHA0065. 

Section AA is the provision Respondent is alleged to have violated, and reads in part:

The means for maintaining the bleeder safe for travel will include compressed air 

lines routed underground, used in conjunction with air pumps to remove water as 

necessary to permit safe travel through the perimeter bleeder system. . . . 

Standing water shall be pumped and or drained down below the top of elevated 

walkways to assure for safe passage around the perimeter of the bleeder system.

Ex. P-5, MSHA0067.

In bleeder systems measuring several miles, the inspector was only able to enter 

approximately 40 feet before having to stop because of “murky,” “dirty dark orange water” that 

came above his 16-inch boot. Tr. I at 206, 208, 214, 228; Tr. Volume II at 45–46 (Sept. 29, 

2021) (“Tr. II”); Ex. P-4, MSHA0018. The inspector took depth measurements of 1.6 and 1.8 

feet by reaching as far into the bleeder as he could, noting that he also observed fresh water 

stains up to three feet high. Tr. I at 208, 211, 217. 

The inspector testified that he could not see below the surface of the water in the two 

inspection areas. Id. at 214. Mr. Verbosky, Consol’s safety inspector, acknowledged that he 
12

could not see through the water and would not be able to see obstacles underneath, see Tr. II at 

52–53, 65, though Mr. Houchins, Consol’s assistant mine foreman, stated that a lot of the water 

was clear, id. at 168.

The inspector said that the bleeders were not maintained to be safe for travel. Tr. I at 

170. Tripping hazards associated with the presence of standing water include rip sloughage, 

rocks, loose crib blocks, suction lines, discharge lines, air lines, slick lines, and generally uneven 

terrain. Id. at 170, 197. Possible injuries include slip and fall injuries, strains, sprains, 

concussions, contusions, and broken bones. Id. at 198, 208. He also noted the possibility of 

cellulitis from skin or wound contact with contaminated water. Id. at 208, 288–91. 

While acknowledging that it was possible to drown in an inch of water, see id. at 234, the 

inspector assessed the most likely severity of the injury to be “lost workdays or restricted duty” 

from a slip and fall injury. He also noted that examiners normally travel in pairs, but that the 

practice would not prevent one person from tripping. Id. at 235.

The standing water had no effect on the ventilation. Tr. II at 23, 141; Ex. R-5. The 

bleeder is not a place where miners regularly work—it is only traveled by examiners, and 

nobody was conducting exams at the time of the inspection. Id. at 32, 86. Mr. Baker, Consol’s 

mine examiner, stated that miners, including examiners, are supposed to walk carefully while 

doing their work. Id. at 115. Similarly, Mr. Houchins stated that the presence of standing water 

makes you walk more carefully. Id. at 158, 183.

Multiple bleeders had standing water, at different levels, for six weeks. See Tr. I at 188, 

190–94; Ex. P-4, MSHA0027, 0030–34. Consol continuously pumped the water and added 

equipment—pumps, compressors, discharge lines, sumps—as necessary. Tr. II at 35, 63–64, 89, 

112, 136, 164. Mr. Verbosky testified that water had been pumped down below the cited levels 

at dates prior to the inspection. Id. at 40. Mr. Baker testified that water had previously been 

pumped down to ankle depth or lower (calling it a “minimum level”), but that unforeseen 

circumstances and problems with pumps contributed to the cited standing water. Id. at 104, 121; 

see also Tr. I at 265–68; Ex. P-4, MSHA0027–30.

Respondent expended significant effort to remove water. Messrs. Verbosky and 

Houchins testified about installing multiple compressors on the surface. Id. at 63, 136, 161. 

They each also noted the creation of sumps to move water. Id. at 72–73, 136, 137, 176–77. Mr. 

Tajc, Consol’s ventilation engineer, and Mr. Houchins each described carrying new or repaired 

pumps several miles to abate the accumulation. Id. at 93, 146, 151, 152–53, 154.

Witnesses also described compounding problems. First, the inspector acknowledged that 

the bleeders in this mine were predominantly very wet, and that there is water in the bleeders all 

the time that is impossible to remove. See Tr. I at 170, 270. There were continuous equipment 

failures, but Respondent replaced, repaired, and installed additional pumps. See id. at 229–31, 

255–567; Ex. P-4, MSHA0007–08. Finally, a water pipe broke around the time of the citation, 

and Mr. Houchins attested to previously changing broken pipes. See Tr. II at 114, 146.
13

B. Disposition

1. Violation

The cited standard requires development of and compliance with an approved ventilation 

plan. 30 C.F.R. § 75.370(a)(1) (2022). Required contents include the means of maintaining 

bleeders free of standing water. See id. § 75.371(aa) (2014).

The requirements of a MSHA-approved ventilation plan are treated as mandatory safety 

standards for the purposes of inspection. The cited standard requires the operator to follow the 

contents of the approved plan. The approved plan required pumping to remove standing water 

specifically to make travel safe. See supra Section IV.A.; Ex. P-5, MSHA0067.

Respondent asserts that there is no violation because it complied with the Plan, stating, 

“[N]owhere in the mine’s ventilation plan does it state that the mere presence of standing water 

[of] any depth or color is a violation.” Resp’t Br. at 23. Respondent argues that because the Plan

“does not establish any criteria for when a certain depth or color of water constitutes a violation,” 

it lacked notice of the criteria the inspector used to assess the violation. Id. at 27.

The Plan requirements are enforceable as mandatory safety standards. Respondent was 

not without notice of the applicable standard. First, precedent provides that such a violation and 

corresponding S&S designation have been affirmed against this operator. See Consol Pa. Coal 

Co., 39 FMSHRC 1893, 1899 (Oct. 2017) (“Consol does not contest the finding that the 

accumulations of water violated the ventilation plan’s requirement that bleeders be maintained 

safe for travel, thus satisfying the first element of the Mathies test.”).

Second, per the Skidmore standards, I am persuaded that the Secretary’s interpretation of 

the regulation—that a violation occurs when standing water is at a depth and darkness that 

obscures possible obstacles—is reasonable. First, this interpretation is consistent with the 

regulation’s language requiring the removal of standing water to ensure safe travel. See Ex. P-5, 

MSHA0067. Plain language dictates that safe travel is hindered by the presence of standing 

water. This is due to the presence of obstacles obscured from view. 

Second, this interpretation serves a permissible regulatory function. The Secretary’s 

reasoning is valid because the regulation is intended to protect miners—in this case, from slip 

and fall hazards.

I find that the Secretary proved the violation by a preponderance of the evidence. 

Standing water existed in the violative bleeders. The water went above the inspector’s boots 

even before deeper points in the water. Testimony from the inspector and Consol employees 

demonstrated that the water was “murky” and darkly colored to the point that they could not see 

obstacles under the water. This is sufficient for a violation under the strict liability for 

mandatory safety standards.
14

2. Gravity

a. Likelihood

The Secretary asserts that the injury is reasonably likely. If the hazard—inability to see 

obstacles while traveling through standing water—occurred, it is reasonably likely to result in 

tripping and falling. I affirm the assessed likelihood.

b. Severity

The Secretary provided credible testimony that tripping over an obscured obstacle would 

result in a sprain, broken bone, or head injury. I find that such an injury would reasonably result 

in a miner missing at least a full day of work. I affirm the assessed severity.

c. Number of Persons Affected

The inspector assessed that only one miner would be affected by the hazard. I find this 

reasonable because only examiners and inspectors travel the bleeder systems. Further, while 

examiners usually do this in pairs, it is likely that one would see the other fall and avoid the 

hazard. I affirm the assessed number of persons affected.

3. S&S

I affirm the S&S designation for the following reasons.

a. Step 1: The violation has been established.

The failure to keep a bleeder clear of standing water that obscures fall hazards is 

sufficient to constitute an underlying violation of a mandatory safety standard for the purposes of 

Mathies Step 1. See supra Section IV.B.1.

The Commission has affirmed a judge’s S&S finding against this operator in sufficiently 

similar circumstances. See Consol Pa. Coal Co., 39 FMSHRC at 1901. The facts in that case 

are almost identical to those here. In that case, the same inspector cited Consol for a violation of 

section 75.370(a)(1) because water was taller than his 18-inch boot, extended over a large area, 

was discolored, and contained tripping hazards. Id. at 1897. I find that the remaining Mathies

factors were also established by a preponderance of the evidence.

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—inability to 

travel safely because of obscured obstacles.

Unsafe travel is the discrete safety hazard against which the Plan’s violated provision 

intended to protect. I find the inspector’s description of the depth and color of the water 

credible. Even accepting Mr. Houchins’ statement that a lot of clear water existed, that fact 

could not negate the presence, in other locations, of deep and “dark, orange, murky, standing 

water” as cited.
15

Further, the description mirrors the violative conditions already held to be sufficient for 

Step 2. In the previous similar Consol case, the Commission accepted the inspector’s 

explanation that there were uneven floors and debris, that some water was so murky that a miner 

could not see his feet, and that it was reasonably likely that a miner would trip and fall walking 

through that hazard. Consol Pa. Coal Co., 39 FMSHRC at 1899.

The Commission also expressly found that “[t]he requirement of a safe travelway is 

inextricably intertwined with the ventilation plan requirements of section 75.370.” Id. at 1900

(acknowledging that examiners are required to travel bleeders). This negates a defense that 

miners do not work in the area, because examiners are required to walk the bleeders in the course 

of their work, and it is the operator’s duty to ensure that they may travel there safely.

It is reasonably likely that a miner working in the area would not be able to see obstacles 

while traveling through the violative bleeders. Logic dictates that a person might reasonably trip 

over such an obstacle or unknown terrain and fall, or that the miner might step on or into an 

unseen obstacle, leading to a foot or leg injury. This possibility is sufficient to meet the 

requirement for Step 2. Therefore, the violation—failure to maintain bleeders free of standing 

water—is reasonably likely to result in the discrete safety hazard against which the regulation is 

directed.

c. Step 3: It is reasonably likely that inability to see obstacles in the 

standing water would result in an injury.

At this stage, the hazard caused by the inability to see obstacles in standing water has 

been established. For the reasons below, I find that the evidence establishes a trip, stumble, or 

fall due to obscured obstacles is reasonably likely to result in an injury.

Based on similar facts, the Commission has credited competent testimony that a miner 

who trips and falls is, “at a minimum, reasonably likely to suffer reasonably serious injuries such 

as broken bones.” Consol Pa. Coal Co., 39 FMSHRC at 1900. It is sufficient here that the 

inspector credibly testified that individuals could trip over many hidden obstacles in the murky, 

standing water, resulting in sprains, broken bones, or concussions. This testimony was bolstered 

by the fact that Mr. Verbosky acknowledged that there were places at which he could not see 

beneath the water’s surface and would not be able to see obstacles.

I reject Respondent’s assertions to the contrary. First, the operator contends that water in 

the bleeders never impeded or affected the ventilation. Resp’t Br. at 34. This is irrelevant to the 

particular provision of the Plan that requires removal of standing water to permit safe travel.

Second, the operator argues that examiners are trained to walk through water in a bleeder 

cautiously. Id. at 34–35. Mr. Baker and Mr. Houchins testified to the caution employed in 

traveling the bleeders to take ventilation readings and facilitate water removal. This testimony is 

irrelevant, however, because the Commission has stated that miner precaution is not a defense in 

a Step 3 analysis. See Consol Pa. Coal Co., 39 FMSHRC at 1900–01 (quoting Eagle Nest, Inc., 

14 FMSHRC 1119, 1123 (July 1992)) (“[T]he exercise of caution is not an element in 

determining the likelihood of injury once the reasonable likelihood of the occurrence of the 
16

hazard is established, because ‘[w]hile miners should, of course, work cautiously, that 

admonition does not lessen the responsibility of operators, under the Mine Act, to prevent unsafe 

working conditions.’”).

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature—broken bones, sprains, or concussions.

An inspector’s assessment of an injury as reasonably serious has generally been accepted. 

See supra Section III.B.3.d. Here, the Secretary has provided credible testimony that falling over 

obscured obstacles in standing water can result in strains, sprains, concussions, contusions, 

broken bones, and even death from drowning.

Respondent mostly addresses the likelihood of injury. See Resp’t Br. at 34–36. Most 

relevant, Respondent contests the inspector’s basis for his testimony that there are also hazards 

associated with the presence of contaminants that could cause cellulitis if the water contacted 

existing skin wounds. I need not address this, however, because it is sufficient for Step 4 that a 

trip, stumble, or fall over obstacles obscured by standing water would lead to the reasonably 

serious injuries cited by the inspector, and by the Commission and its judges in similar cases.

4. Negligence

I find that negligence was improperly assessed as “moderate.” This is supported under a 

reasonable prudent person standard specific to mine operators. Respondent is familiar with the 

mining industry and relevant facts, and it has explicit familiarity with the protective purpose of 

this particular regulation. See supra Section IV.B.3.a. (noting that Respondent’s similar 

violation has been affirmed as S&S by the Commission within the last five years). Therefore, I 

find that a reasonable prudent person in Respondent’s position should have known about the 

violative condition.

The operator knew of the violative condition, but I find that the operator conducted every 

reasonably expected action to abate the standing water condition, even in the face of 

compounding problems. The Commission has affirmed a finding of no negligence where the 

Secretary failed to describe any actions not taken to meet the standard of care. See JWR, 36 

FMSHRC at 1977. There, the Commission found no failure to act, noting that the inspector 

explained the citation was issued because “MSHA believed there was negligence and JWR ‘did 

not do everything [it] could’ to see that the contractor was following regulations.” Id.

Here, the inspector acknowledged that Respondent implemented all means of removing 

water, noting that so long as all the equipment continued to run, those methods would have been

sufficient. Tr. I at 274. He stated that the measures were clearly insufficient because everything 

should not have been failing at once. Id. at 238. 

This is similar to JWR because no specific failed actions were described. As with the 

broad failure to “do everything [it] could,” the Secretary here asserts that the failure of the 

measures taken equals negligence. I disagree.
17

While the presence of standing water existed for six weeks, the evidence demonstrates 

that considerable work was done to pump the water, that the number and severity of violative 

areas decreased over time, and that water was often pumped to acceptable levels before 

recurrence. 

This was no small feat under the circumstances. Employees hand-carried replacement 

water pumps miles to remove water. Respondent installed more compressors when the existing 

were insufficient, and it built sumps to facilitate removal in steps. I find it noteworthy that Mr. 

Houchins, the assistant mine foreman, was personally involved in extraordinary efforts to correct 

the problem. See Tr. II at 146–54; Ex. R-6, CONSOL 022.

Numerous compounding problems also existed. Respondent dealt with constant wet 

conditions, broken pumps, and broken water pipes adding to the natural accumulation. It was 

reasonable to progressively address the problem as attempts proved inadequate, and there was no 

evidence that the operator was insufficiently focused on the problem. See Tr. I at 254–57; Tr. II 

at 101–06, 115–16, 135–37, 146; Ex. P-4, MSHA0037–40; Ex. R-5, 6; see also Resp’t Br. at 38. 

Indeed, the inspector conceded that every corrective measure used to lower the water to 

acceptable levels had already been implemented by the operator before the inspection. See Tr. I 

at 200–01, 241–42, 274; see also Resp’t Br. at 38.

The Secretary argues that grossly inadequate actions should not be considered mitigating 

circumstances. See S. Br. at 18; Maple Creek Mining, Inc., 26 FMSHRC 539, 553 (June 2004) 

(ALJ), aff’d in part & rev’d in part on other grounds, 27 FMSHRC 555 (Aug. 2005). There, the 

judge affirmed the negligence finding because she found that the pumping conducted was 

“grossly inadequate.” 26 FMSHRC at 553. The Commission affirmed her negligence finding, 

agreeing that the testimony indicated a “lack of seriousness” on the operator’s part with respect 

to water accumulation in an escapeway. 27 FMSHRC at 566.

Accepting the Secretary’s contention, I find that the record in this case does not support a 

lack of seriousness on Respondent’s part. While previously inadequate, the measures employed 

made bleeder travel safe intermittently, and Respondent made continuous efforts, including the 

addition of a surface pump, before the inspection cited the violation. A senior mine manager was 

personally involved in these extensive efforts. The facts here are thus clearly distinguishable. 

For the above reasons, I reduce the negligence finding from “moderate” to “none.”

5. Penalty

I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here.

Respondent’s history of violations is reflected in Exhibit P-6. Its history consists of six 

repeat violations during the inspection period. Accordingly, this factor has already been properly 

considered and is of no consequence in my decision to modify this assessed penalty.
18 

I affirm the violation’s gravity as assessed. I found that injury is reasonably likely, is 

likely to result in lost workdays or restricted duty, is S&S, and would affect one person. 

Accordingly, this factor did not affect my decision to reduce the penalty. 

Following the citation, Respondent pumped the accumulations of water down and made 

the area safe for travel within nine days. Considering this fact with its demonstrated continuous 

mitigation, I find that the operator demonstrated good faith in attempting to achieve rapid 

compliance after notification.

 The proposed penalty was based, in part, on the negligence assessed in the citation. 

Because I find that a reduction in negligence is warranted, see supra Section IV.B.4., I also find 

that a penalty reduction is appropriate. The proposed penalty was $674.00, based in part on the 

Secretary’s finding of moderate negligence. Because I find that the operator was not negligent, I 

assess a penalty of $150.00. 

C. Conclusion 

I affirm the citation and gravity. I find a reduction in negligence from “moderate” to 

“none.” I therefore assess a penalty of $150.00 in accordance with the modification. 

V. CONCLUSION

It is ORDERED that Citation No. 9203910 be AFFIRMED as issued. 

It is also ORDERED that Citation No. 9204098 be AFFIRMED with the assessed 

gravity, and that the level of negligence be MODIFIED from “moderate” to “none.” 

Finally, it is ORDERED that the Respondent pay the Secretary of Labor the assessed 

penalty of $850.00 within 30 days of the date of this decision.5

 

 

 Michael G. Young 

Administrative Law Judge

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

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

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

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

Numbers. 
19

Distribution (First Class Mail and email):

Ryan M. Kooi, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street, Mailstop 

SOL/22, Philadelphia, PA 19103, kooi.ryan.m@dol.gov

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

15222, pdennison@fisherphillips.com

Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

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