**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 
| SECRETARY  OF LABOR

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                Petitioner,

 

                        v.

 

CONSOL  PENNSYLVANIA COAL 

  COMPANY  LLC,

                Respondent.                                                               |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket  No. PENN 2022-0070

    A.C.  No. 36-07416-552312

 

 

 

 

    Mine:  Enlow Fork Mine          |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**DECISION AND ORDER**

 

Appearances:              RyanM. Kooi, Esq., & Doug Sciotto, CLR, Office of the Solicitor, U.S.Department of Labor, Arlington, Virginia, for the Secretary of Labor

 

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

 

Before:                        Judge Lewis

** **

**STATEMENT OF THECASE**

This case arisesunder the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (The“Act” or “Mine Act”). A hearing was held via Zoom Government on May 2-3, 2023.[1] The partiessubsequently submitted briefs. The within Decision has been reached aftercareful consideration of the evidence presented at hearing and argumentsadvanced by the parties.

** **

            Atissue in this case is a single violation—Citation No. 9206769—issued under 30 C.F.R.§75.1725(a) for failure to maintain a continuous miner in safe operatingcondition. Specifically, the Citation states: 

** **

The Company No. 25continuous miner located on the H-2 Development Section (MMU 007-0) is notbeing maintained in safe operating condition. There are 2 damaged cutting bitson the right outer sump ring of the cutting head, approximately 2 feet fromeach other. One of the bits is missing the carbide tip, and the other is brokenoff at the lug. The continuous miner was out of service at the time due to a103(k) order being issued for an ignition investigation. According to minersworking on the section who witnessed the ignition, the ignition originated onthe right-hand side of the cutting drum, was orange in color, and wasapproximately 2-2.5 feet in diameter. This is a contributory citation to anon-injury face ignition which occurred at 11:18 AM on 2/16/2022.

 

P-1 at27*.*

** **

**LAW ANDREGULATIONS**

** **

30 C.F.R. § 75.1725(a)provides, in pertinent part: 

 

Mobile 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.

** **

**CREDIBILITYASSESSMENT**

** **

The findings offact are based on the record as a whole and the undersigned’s carefulobservation of the witnesses during their testimony. In resolving any conflictsin the testimony, the undersigned has taken into consideration the interests ofthe witnesses, or lack thereof, and consistencies, or inconsistencies, in eachwitness’s testimony and between the testimonies of the witnesses. In evaluatingthe testimony of each witness, the undersigned has also relied on his demeanor.Any failure to provide detail as to each witness’s testimony is not to bedeemed a failure on the undersigned’s part to have fully considered it. Thefact that some evidence is not discussed does not indicate that it was notconsidered. *See Craig v. Apfel,*212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to discuss all evidence and failureto cite specific evidence does not mean it was not considered).

 

**JOINT STIPULATIONS**

** **

The parties agreed to the following stipulations which wereadmitted as Joint Exhibit 1 (“J-1”). 

 

1.     The Respondent wasan “operator” as defined in 3(d) of the Federal Mine Safety and Health Act of1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. 802(d), at the mine atwhich the citations at issue in this proceeding were issued.

2.     At all timesrelevant to these proceedings, Enlow Fork Mine (ID 36-07416) is a “mine” asdefined in 3(h) of the Mine Act, 30 U.S.C. 802(h).

3.     Operations of theRespondent at the Enlow Fork Mine at which the citations were issued 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 Judges pursuant to Sections105 and 113 of the Mine Act.

5.     Enlow Fork Mine isowned by the Respondent.

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

7.     MSHA InspectorBrandon Crutchman was acting in his official capacity and as an authorizedrepresentative of the Secretary of Labor when Citation No. 9206769 was issuedand during the course of the accident investigation and inspection.

8.     MSHA InspectorWalter Young was acting in his official capacity and as an authorizedrepresentative of the Secretary of Labor during the course of the accidentinvestigation and inspection.

9.     A true copy ofCitation No. 9206769 was served by a duly authorized representative of theSecretary of Labor upon an agent of Respondent at the date, time, and placestated therein, as required by the Act.

10.  Exhibit “A”attached to the Secretary’s Petition in Docket No. PENN 2022-0070 contains anauthentic copy of Citation No. 9206769 at issue in this matter with allmodifications or abatements, if any.

11.  Petitioner’sExhibits are authentic copies of the documents they depict.

 

*S. Br*. at 4-6 (July 14,2023).[2]

** **

**STATEMENT OF FACTS**

** **

ConsolPennsylvania Coal Company, LLC is the owner and operator of Enlow Fork Mine, anunderground bituminous coal mine located in Southeastern Pennsylvania. J-1;P-14. In February of 2022, Enlow Fork Mine was liberating in excess of 11million cubic feet of methane per 24-hour period. Tr. I at 57, 169. At thattime, the mine used three portals: Oak Springs Slope, Sparta Portal, and ArcherPortal. Tr. I at 27. Most active mining was conducted through the ArcherPortal. Tr. I at 27.

 

**I.     ****The Ignition**

** **

At approximately11:18 a.m. on February 16, 2022, a face ignition occurred on the H2 developmentsection of Enlow Fork Mine. Tr. 1 at 82-83; P-1; P-2. At that time, MSHAInspectors Brandon Crutchman and Walter “Bud” Young were conducting regularquarterly inspections in the Oak Springs side of the mine. Tr. I at 27, 161. Atapproximately 11:30 a.m., they met with Matt Roebuck—a company representative—atthe Oak Springs hoist bottom to exit the mine. Tr. I at 27-28, 89, 161-62. Itwas at this time that Roebuck received a call on the mine radio reporting thatan ignition had occurred and requesting that he report it to the MSHAinspectors to investigate. *Id*. Crutchman, Young, and Roebuck immediatelyexited the mine along with Inspector Rob Hutchinson, who had already issued averbal 103(k) order to control and preserve the scene of the accident.[3] Tr. I at28-29; P-2, P-9.

 

At the surface, Crutchmanand Young learned the location of the ignition and that no injuries occurred.Tr. I at 32, 162. They gathered the pre-shift and on-shift examiners’ reports,relevant pages of the mine’s ventilation plan, and a map of the section. *Id.*The inspectors then proceeded underground, accompanied by companyrepresentatives—Scott Watson, John Heffelfinger, Gaven Verbosky, Don Blumetti,Brett Farrell, and Steve Barr—and two inspectors from the PennsylvaniaDepartment of Environmental Protection—Harry Casteel and Ralph Scott. Tr. I at32-33, 163. They arrived at the H2 development section via mantrip and met thesection crew who had gathered at the section power center. Tr. I at 33, 91,163. Crutchman and Young then conducted a group interview of eight miners whowitnessed the ignition—Sam Stempell, return side bolter; Josh Polk, mineroperator; Brad Simpson, shift foreman; Cody Gibson, intake side bolter; JustinDrew, continuous miner coordinator; Dave Eisenhower, foreman; TristianDemidovich, return rib bolter; and Mike Kuzma, intake rib bolter. Tr. I at 34,91, 163-65, 247; Tr. II at 332; P-2.

 

The minersreported witnessing an orange ball or glow in the face of the number threeentry that measured between two and two-and-a-half feet in diameter and lastedapproximately ten seconds before self-extinguishing. Tr. I at 34-35, 92,164-65, 244-48, 258-59; Tr. II at 325; P-2; P-16. Prior to the ignition, theminers had cut the bottom of the coal face underneath the hard rock binder. Tr.I at 198-99, 244. After mining one foot into the middle cut, the ignitionoccurred. Tr. I at 37, 198-99, 252. When he saw the orange glow, Polkappropriately glanced at the methane monitor which read 0.1 percent,de-energized the continuous miner, and started spraying the area where theignition occurred with a wash down hose. Tr. I at 111-112, 165, 244, 258-59;P-2.

 

**II.    ****The Investigation**

** **

Upon arrival atthe site of the ignition, Young—escorted by Mine Superintendent SteveBarr—conducted an initial methane check at the number 3 entry that detectedmethane levels twelve inches from the roof, face, ribs, and floor between 0.3and 1.7 percent. Tr. 58, 165-66; P-16. After Young adjusted the ventilationcontrols, the methane levels dropped below 1 percent. *Id*. Young alsoobserved a methane feeder—a fracture in the coal near the rock binder that wasemitting higher concentrations of methane between 2.7 and 3.4 percent. Tr. I at58, 113-14, 167; P-16.

 

Crutchman beganhis investigation by conducting an imminent danger run of the other entries inthe H2 development section. Tr. I at 58, 165-66. Following his return from theimminent danger run, he conducted methane tests that showed the adjustment ofthe ventilation controls had lowered the level of methane near the feeder tobetween one and two percent. Tr. I at 58-59, 64, 113; P-2. Crutchman determinedthe methane levels were safe and modified the 103(k) order to permit Consol toclean up the coal behind the continuous miner and back the machine out of theface area so that they could continue the investigation. Tr. I at 59, 64-65,102.

 

After thecontinuous miner was removed, Crutchman and Young inspected the methane feederand observed a mist of water coming from the rib and a low hiss that would havebeen inaudible while the continuous miner was in operation. Tr. I at 59-60, 69,167-68. Crutchman conducted a test which confirmed that methane was emittingfrom the feeder at levels of one to two percent. Tr. I at 59-60, 64.[4] Theinspectors also checked the cutting bits on the head of the continuous minerand found two bad bits within approximately two feet of each other—one that hadthe carbide tip completely worn off and one that was broken off at the lugwhere it attached to the cutting head. Tr. I at 69, 172-73; P-1; P-2; P-16. Thebits were located on the right side of the outer sump of the cutting head, inthe area where the ignition occurred. Tr. I at 69, 254-55; P-1; P-2. Polk—thecontinuous miner operator—testified at hearing that the damaged bit looked wornand the broken bit looked like it had been broken by a sulfur ball. Tr. I at246-47.

As a result of theinvestigation, Inspector Crutchman concluded that the direct cause of theignition was damaged or missing cutting bits contacting intrusions in the facearea—sulfur balls and laminated sandstone—which then created a spark andignited the methane feeder. Tr. I at 82; P-2. Respondent replaced the two bitsin order to abate the violation. Tr. I at 79, 179. The mine also submitted aventilation plan addendum to MSHA, which included a requirement that Consolcheck the bits on the cutting head of the continuous miner every twenty feetwhen mining in the H1 to H5 districts. Tr. I at 81; P-8.[5] MSHA approvedthis plan. *Id*.

A.    Conditions in theH2 Development Section

 

At the beginningof the shift, the crew examined the cutting bits, sprays, and parameters, anddid not find any worn or broken bits. Tr. I at 37, 164, 240; P-2; P-16; R-3.The water pressure at the cutting head measured at 80 P.S.I. with a flow of 62gallons per minute. Tr. I at 37, 129, 164; P-2; P-16; R-3. The crew used an18-inch ventilation tube with a 16-inch slider that extended to approximatelyfive feet from the face. Tr. I at 37; P-2; R-3. The crew had minedapproximately 47 feet that shift and the continuous miner had not de-energizeddue to high methane. Tr. I at 37, 109, 164, 245, 252; P-2; P-16. Methanereadings on a probe had increased to 0.3 percent during the shift. Tr. I at 37,164; P-2; P-16.

 

The mining of thecoal seam in the H2 development section was complicated by the presence of arock binder and sulfur balls. Tr. I at 39, 69, 98, 174. The rock binder—made ofhard shale and thin layers of sandstone—measured approximately eight inches andwas located 5.7 feet above the bottom of the coal seam. Tr. I at 39, 69, 98,174; P-2. The miners told the inspectors that they occasionally witnessedsparking while cutting into it. Tr. I at 39, 98; P-2. The inspectors noted thatthere was evidence of hard rock binder in the ribs as well as the face,indicating that the miners had mined through the binder during the shift. Tr. Iat 40-41, 174. Sulfur balls—round, hard rock formations—and a clay vein—anintrusion of clay within the coal seam that indicated a possible source ofmethane or adverse roof conditions—were also present in the face area. Tr. I at41-2, 69, 174-75, 246; P-2; P-16. Shale, sandstone, and sulfur balls are hardermaterials than coal, and mining through them causes bits to wear down faster.Tr. I at 40, 107. This increases the potential for the bits to break and forsparking to occur. Tr. I at 40, 107, 246.

B.    The Coal BedMethane Well NV-89 Cut Through Plan

 

Prior to theignition, the crew was approaching a coal bed methane well (CBM well NV-89),which was drilled laterally into the coal seam from the surface to reducemethane levels. Tr. I at 50, 57, 132, 178-79, 234; P-14. At the time of theignition, the miners had advanced approximately 20 feet into the minimumworking barrier around the suspected location of the well. Tr. I at 38, 50,52-55; P-2; P-7. This would have been the first intersection of that well. Tr.I at 38. The first intersection of a coal bed methane well can be hazardousbecause there is no way of knowing if the previous well preparation wassufficient to prevent a methane inundation. Tr. I at 38, 47, 49, 134, 141, 178;P-7.

 

Mining throughcoal bed methane wells is a hazardous process that has the potential to causemethane to inundate mines, possibly leading to explosions or ignitions. Tr. Iat 42. Respondent has a history of explosions—including one explosion causinginjuries at the Enlow Fork mine—caused by the presence of methane at the coalface. Tr. I at 74-75, 183. Four of these ignitions occurred on the H Section. Tr.I at 183. As a result, 30 C.F.R. § 75.1700 prohibits mining through gas wells.Tr. I at 42. In this case, however, Respondent had submitted a Petition forModification to permit mining through the coal bed methane well. *Id.*MSHA approved Consol’s Petition for Modification, Docket No. M-2009-039-C, andConsol submitted a cut-through plan as an addendum to its approved ventilationplan incorporating approximately 40 additional procedures mandated by MSHA dueto the hazardous nature of mining through gas wells. Tr. I at 45-46; P-7.

 

As soon as miningencroaches on the minimum working barrier, the mandatory procedures specifiedin the cut-through plan must be implemented. Tr. I. at 45, 234; P-7. These specialprocedures are designed to mitigate the risk of methane inundations andassociated hazards. Tr. I at 49-50; P-7. Among other things, the mandatoryprocedures include more frequent methane tests, the application of rock dust towithin 20 feet of the face rather than 40 feet, more frequent permissibilitychecks, daily calibration of the methane monitor on the continuous miner ratherthan once every 31 days, a prohibition from traveling or working in remoteareas of the mine while crews are working within the minimum working barrier,the adjustment of the mining cycle to prevent methane from advancing into otheractive areas of the mine, and additional equipment to prevent and extinguishfires. Tr. I. at 46, 49, 54, 132-34, 176-77, 234-35; P-7. The procedures alsorequire that the mine notify MSHA in the event that a methane inundation wereto occur and normal section ventilation is unable to dilute the methane. Tr. Iat 47-48; P-7. At the time the ignition occurred, the mine had implemented theprocedures required by the cut through plan. Tr. I at 55. The miners hadfinished applying rock dust to the entry, ventilation was compliant, and therequired firefighting equipment was present and operational. Tr. I at 39, 56,108.

 

 

 

C.    The Testimony ofMichael Bohan—Consol’s Senior Geologist

 

At hearing therewas some controversy as to whether Respondent’s witness, Michael Bohan, wasappearing as an expert witness and, if so, whether Respondent had failed togive proper notice of such. Tr. II at 345-348.

 

Said issues havebeen rendered essentially moot in that this Court afforded Bohan’s testimonylittle or no probative weight. Often argumentative and non-responsive to theSecretary’s questioning, Bohan was evasive in answering whether the continuousminer’s damaged bits posed any risk, including that of ignition.[6]

 

**CONTENTIONS OF THEPARTIES**

 

The Secretarycontends that Respondent violated 30 C.F.R. 75.1725(a) when it failed to maintaina continuous miner in safe operating condition or remove it from service when onebit was damaged and one bit was missing from the cutting head of the machine. Inaddition to affirming the violation and penalty, the Secretary argues that for CitationNo. 9206769, the gravity should be modified from “Reasonably Likely” to “HighlyLikely,” and from “Lost Workdays or Restricted Duty” to “Fatal.”

The Respondentcontends that this citation should be vacated or—at the very least—modified from“Reasonably Likely” to “Unlikely” gravity and to remove the S&Sdesignation. Respondent argues that it is common for a shower of sparks tooccur when the metal bits on a spinning continuous miner drum strike ironpyrite or sulfur balls, and that sparking is well-documented even when cuttingbits are in perfect condition. Respondent’s Post-hearing Brief at 3-4.Respondent also contends that the Secretary did not produce adequate evidenceto support the “reasonably likely” gravity designation, and that the S&Sdesignation is not warranted because the continuous miner operator immediatelystopped the machine and called MSHA when the bits sparked, thereby negating thepossibility of a hazard.

**BURDEN OF PROOFAND STANDARD OF PROOF**

** **

The burden ofpersuasion is upon the Secretary to prove the gravamen of a violation by thepreponderance of the evidence. *Jim Walter Res. Inc.,*28 FMSHRC 983, 992(Dec. 2006). *RAG Cumberland Res. Corp.,* 22 FMSHRC 1066, 1070 (Sept.2000). *Jim Walter Res., Inc.,*9 FMSHRC 903, 907 (May 1987). Thisincludes every element of the citation. *In re: Contests of Respirable DustSample Alteration Citations: Keystone Mining Corp.,*17 FMSHRC 872, 878(Aug. 2008).

 

Commissionprecedents have held that “[t]he burden of showing something by a‘preponderance of the evidence,’ the most common standard in the civil law,simply requires the trier of fact ‘to believe that the existence of a fact ismore probable than its nonexistence.’” *RAG Cumberland Res. Corp.,*22FMSHRC 1070 (Sept. 2000), (quoting*Concrete Pipe & Prods of Cal., Inc.v. Constr. Laborers Pension Trust for S. Cal.,*8 U.S. 602, 622 (1993).

 

The United StatesSupreme Court has held that “[b]efore any such burden can be satisfied in thefirst instance, the factfinder must evaluate the raw evidence, finding it to besufficiently reliable and sufficiently probative to demonstrate the truth ofthe asserted proposition with the requisite degree of certainty.” *ConcretePipe & Products of California, Inc. v. Constr. Laborers Pension Trust forS. California.*508 U.S. 602, 622 (1993). The assessment of evidence is aprocess of weighing, rather than mere counting: “[T]here is a distinctionbetween civil and criminal cases in respect to the degree or quantum of evidencenecessary to justify the [trier of fact] in finding their verdict. In civilcases their duty is to weigh the evidence carefully, and to find for the partyin whose favor it preponderates.” *Lilienthal’s Tobacco v. United States,*97U.S. 237, 266 (1877).[7]While the Secretary must prove the elements of a citation by a preponderance ofthe evidence, this Court’s factual determinations must be supported bysubstantial evidence. 

 

**ANALYSIS**

** **

Following theinvestigation of the ignition, Crutchman issued Citation No. 9206769 for aviolation of 30 C.F.R. 75.1725(a). Crutchman determined the violation wasreasonably likely to result in injuries causing lost workdays or restrictedduty to five miners and designated it as S&S. Tr. I at 74-77; P-1. Heexplained that he evaluated the gravity as S&S and reasonably likely due tothe violation of a mandatory safety standard; the existence of a discretehazard; the fact that the mine liberates over 11 million cubic feet of methaneper day; the presence of anomalies in the coal such as a hard shale binder withsandstone and sulfur balls that could cause sparking; the mine’s history ofapproximately 14 ignitions, several of which were caused by bad bits; and thefact that the miners were anticipating mining through CBM well NV-89. Tr. I at74, 149. He also noted that a prior ignition at the mine had burned a miner anddamaged the section where the ignition occurred. Tr. I at 75. Crutchmantestified that based on the facts uncovered during his investigation, he wouldhave marked the citation as S&S and reasonably likely even absent theoccurrence of an ignition. Tr. I at 79.

 

Crutchman furtherevaluated the gravity of the violation to include injuries resulting in lostworkdays restricted duty based on the burns that could be expected or due tosmoke inhalation by miners trying to extinguish the ignition. Tr. I at 76. Heconsidered five miners to be affected by the hazards presented by the damagedand missing bits because there were five miners working in the immediatearea—the continuous miner operator, the left-side roof bolter, the left-siderib bolter, the right-side roof bolter, and the right-side rib bolter. Tr. I at76. 

 

**I.     ****The Secretary carriedhis burden of proving a violation of 30 C.F.R. 75.1725(a).**

 

The Secretary mustprove the elements of an alleged violation by a preponderance of the evidence. *SeeJim Walter Res., Inc*., 28 FMSHRC 983, 992 (Dec. 2006); *RAG CumberlandRes. Corp*., 22 FMSHRC 1066, 1070 (Sept. 2000). 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).

 

Section 75.1725(a)provides, in pertinent part, “Mobile and stationary equipment shall bemaintained in safe operating condition and machinery or equipment in unsafecondition shall be removed from service immediately.” 30 C.F.R. 75.1725(a). Thequestion, then, is whether or not the equipment in this case was “unsafe.” The Commission has established that the standard for aSection 75.1725(a) violation is whether “a reasonably prudentperson familiar with the factual circumstances surrounding the allegedlyhazardous condition, including any facts peculiar to the mining industry, wouldrecognize a hazard warranting corrective action.” Otis Elevator Co. v. Sec'y ofLab., 921 F.2d 1285, 1291 (D.C. Cir. 1990) (citing Alabama By–Products Corp., 4FMSHRC 2128, 2129 (1982)).

 

In 2013, MSHAissued public guidance stating that MSHA considers the operation of continuousmining machines with damaged or missing cutting bits unsafe because mining withdamaged, worn, or missing cutting bits can result in sparks—the most commonsource of methane ignitions. Tr. I at 73; P-13. This guidance was validated onMarch 31, 2021, and is currently in effect through March 31, 2024. P-13. Specifically,this guidance states that “[c]utting coal or rock with continuous miningmachines or longwall shearers that have damaged, worn, or missing cutting bitshave ignited methane resulting in serious injuries and fatalities.” Tr. I at73; P-13.[8]

 

The Commission has affirmed a violation of this standard formissing components. In *Martinka Coal Co.*, a belt structure was missingrollers, causing the belt to rub against the structure. *Martinka Coal Co.*,15 FMSHRC 2452, 2456 (Dec. 1993). The Commission affirmed the violation becauseof the presence of combustible accumulations and an ignition source. *Id.* In *So.Ohio Coal Co.*, the Commission found it sufficient that the inspector andoperators testified that the condition--broken track pads--was unsafe. *So.Ohio Coal Co.*, 13 FMSHRC 912, 915-16, 916 n.2 (June 1991) (quoting *Ala.By-Prods. Corp.*, 4 FMSHRC at 2129) (“Substantial evidence supports thejudge's finding that the two broken track pads presented an unsafe condition.”).It concluded that “safe operating condition” means that a machine can be usedsafely by miners. *Id.* at 915.

* *

Whethermissing or broken components are involved, there still must be a danger posedto miners by use of the cited machinery. The Commission recently affirmedtwo Section 75.1725(a) violations as S&S where cables were found to bein bad condition and posed a risk of snapping or dropping loads. *ConsolPa. Coal Co.*, 43 FMSHRC at 150-51, 153-54. There, a cable was found to notbe connected as designed--merely wrapped around the reel. *Id.* at150.

 

Here, it isundisputed that the machinery contained two missing or damaged bits. There iscredible testimony and evidence that missing and damaged bits increase thechances of sparking when mining and—in the presence of methane—the chances ofignition. See Tr. I at 40, 73, 184; Tr. II at 323-24; P-13. Methane faceignitions are commonly understood to lead to explosions resulting in seriousinjury and death. In fact, Enlow Fork Mine itself has a history of 14 methaneface ignitions since 2017, and the mine experienced at least one explosioncaused by a methane face ignition that resulted in serious injuries to a miner.See Tr. I at 74-75, 183.

 

At this step, Ineed not address whether there is a confluence of factors making an injuryreasonably likely. It is sufficient for purposes of the violation finding thata dangerous condition could be created by use of the cited machinery with thesemissing and damaged bits. A reasonably prudent miner familiar with the miningindustry and the factual circumstancessurroundingdamaged and missing bits—the observed sparking, the slow-moving and difficultmining progress, the presence of the hard binder and sulfur balls, and theproximity to the CBM well—would recognize that operating a continuous minerwith damaged or missing bits presents the hazard of methane ignitions. I findthat Respondent failed to maintain the continuous miner in safe operatingcondition and failed to remove the continuous miner from service when in anunsafe condition. Therefore, I find that Respondent violated section75.1725(a).

 

**II.    ****The violation of30 C.F.R. § 75.1725(a) was significant and substantial in nature.**

 

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.     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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.”).

 

For the followingreasons, this Court finds that the Secretary has established that all fourprongs of *Mathies/Newtown*have been met, and therefore Citation No.9079562 was properly designated as S&S.

 

A.    A violation of a mandatorysafety standard occurred.

 

The facts anddiscussion *supra* establish a violation of 30 C.F.R. § 75.1725(a), whichis a mandatory safety standard. 

 

B.    There was a reasonablelikelihood of the occurrence of the hazard.

 

*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). The Secretary need not prove a reasonablelikelihood that the violation itself will cause injury, but rather whether thereis a reasonable likelihood that the hazard contributed to by the violation willcause an injury. *Musser Engineering, Inc.* 32 FMSHRC 1257, 1280-1281(Oct. 2010).

 

Here,the standard requires that machinery be maintained in a condition that enablesits safe use by miners. *See So. Ohio Coal Co.*, 13 FMSHRC at 915.The hazard the standard aims to prevent is one resulting from the dangerousoperation of the cited machinery. The Secretary contends that “[b]y operatingthe continuous miner in an unsafe condition, Consol placed miners at risk ofserious injury or death due to the high likelihood of an ignition, fire, orexplosion.” Therefore, the specific hazard here is one of ignition, fire, orexplosion caused by sparks from damaged or missing bits striking iron pyrite orsulfur balls.

 

Theremaining issue is whether a reasonable likelihood exists that the damaged ormissing bits will spark and cause an ignition, fire, or explosion. The likelihoodof hazard should be based upon the “particular facts surrounding theviolation.” *Newtown Energy, Inc.*, 38 FMSHRC at 2038. Operating thecontinuous miner on the H2 development section while there was one damaged bitand one missing bit on the cutting head posed a discrete safety hazard tominers because it was highly likely to lead to—and in fact did lead to—a faceignition. Damaged and worn bits increase the potential for sparking whenmining, and in the presence of methane, sparking is highly likely to lead to anignition, as it did here. Tr. I at 40, 73, 184; P-13. 

 

As amatter of logic and common sense, I find that an event that *has* occurred*is* reasonably likely to occur. Methane face ignitions are, without adoubt, a discrete safety hazard to miners. The particular facts surrounding theviolation created a reasonable likelihood of the occurrence of the hazardagainst which 30 C.F.R. § 75.1725(a) was directed. Mining through hard shale,sandstone, and sulfur balls further increases the potential for sparking. Thepresence of the methane feeder and the machine’s position within the minimumworking barrier of a CBM well makes an ignition even more likely. In view ofthe foregoing, this Court finds that the Secretary presented sufficientevidence to meet the second step of *Mathies* and *Newtown*.

 

C.    Based upon theparticular facts surrounding the violation, the occurrence of the hazard—ignition,fire, or explosion caused by sparks from damaged or missing bits striking ironpyrite or sulfur balls—would be reasonably likely to result in an injury thatwould be reasonably likely to be serious, and indeed, fatal. 

 

The third and fourth steps of the *Mathies* test require ashowing of a reasonable likelihood that the hazard contributed to will resultin an injury, and that the injury in question will be of a reasonably seriousnature.[9]In evaluating the likelihoodof injury, judges must assume the occurrence of the hazard. *See NewtownEnergy, Inc.*, 38 FMSHRC at 2037. One only reaches Step 3 of the *Mathies* analysisafter determining that the hazard is reasonably likely to occur. I thus assumethe occurrence of the hazard—ignition, fire, or explosion caused by sparks fromdamaged or missing bits striking iron pyrite or sulfur balls. 

 

Methane ignitions are reasonably likely to result in injuries of areasonably serious nature, including burns, smoke inhalation, concussiveforces, or even death. Methane ignitions have caused serious injuries to minersthroughout mining history. Enlow Fork Mine has a history of at least oneexplosion caused by a methane ignition that resulted in burns to a miner. Tr. Iat 75. Twenty-nine miners were killed by an explosion caused by a methane faceignition at the Upper Big Branch Mine in 2010. Tr. I at 85, 186-87. MSHAdetermined that the face ignition at Upper Big Branch that led to the explosionwas caused by two damaged bits on the shearer cutting head. Tr. I at 86, 186. 

 

An inspector’sjudgment is an important factor in determining whether there is “a reasonablelikelihood that the hazard contributed to will result in an injury.” *HarlanCumberland Coal Co.*, 20 FMSHRC 1275, 1278-79 (1998). Given the evidencepresented and the reasonable inferences flowing from such, I find that theinspector reasonably concluded that the expected injury would affect fiveminers and that, as discussed *supra*, the resulting injury wouldreasonably cause injuries at least as serious as lost workdays or restrictedduty. I therefore find that the hazard—ignition, fire, or explosion caused bysparks from damaged or missing bits striking iron pyrite or sulfur balls—wouldbe reasonably likely to cause serious injury or death. Accordingly, the thirdand fourth step of *Mathies* and *Newtown* are met. 

 

**III.    ****The low level ofnegligence designated by the inspector is supported by a totality of thecircumstances.**

 

According to 29C.F.R. § 103.3(d), negligence is considered low when “the operator knew orshould have known of the violative condition or practice, but there are considerablemitigating circumstances.” 30 C.F.R. § 100.3, Table X. In *Sec’y of Labor v.Brody Mining, LLC.,*37 FMSHRC 1687, at 1701 (Aug. 2015), the Commissionaffirmed that, in making a negligence determination, Commission judges are notrequired to apply the definitions of Part 100, may evaluate negligence from thestarting point of a traditional negligence analysis, are not limited to anevaluation of allegedly mitigating circumstances, and can consider “thetotality of the circumstances holistically.” 

 

InspectorCrutchman testified that he found the operator to be negligent for thefollowing reasons: (1) The miners that reported the incident were experiencingdifficulties cutting through the binder; (2) the miners reported observingfrequent sparking; and (3) the miners anticipated mining through a well andshould have known to check for increased wear on the bits. Tr. I at 76. Basedon this, Crutchman reasoned that the operator should have known that there wasan increased chance for wear on the bits when mining was difficult andslow-going, which could have led to increased sparking and the potential for anignition. Tr. I at 76-78, 116. I agree with his reasoning.

 

InspectorCrutchman evaluated negligence as “low” due to the following considerablemitigating circumstances: (1) the mine was in compliance with its ventilationplan and all applicable provisions of the cut-through plan for the well; (2)only one of the 67 water sprays was not working correctly; (3) the atomizersprays were working correctly; and (4) the miners inspected the bits on thecutting head at the beginning of the shift and did not find any bits that weremissing or damaged. Tr. I at 76-77, 108, 130-31, 185. 

 

I agree with theSecretary that the mining conditions were difficult and warranted checking thebits more frequently. The bits were likely damaged when the continuous minercut through the hard binder and sulfur balls, but the inspectors were unable todetermine the exact time when the bits were worn or broken. Considering thetotality of the circumstances, this Court finds low negligence to be appropriatefor Respondent’s failure to adhere to § 75.1725(a) requirements. 

 

**IV.     ****The originallyassessed penalty of $716.00 for the violation is appropriate.**

 

Section 110(i) ofthe Mine Act delegates to the Commission and its judges “authority to assessall civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). In assessing civilmonetary penalties, an ALJ shall consider the six statutory penalty criteria:

 

[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 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).

 

In *ThunderBasin Coal Co.*, 19 FMSHRC 1495, 1503 (Sept. 1997), the Commission held thatall of the statutory criteria in § 110(i) should be considered in the court’s *denovo* penalty assessment, but not necessarily assigned equal weight. In *MusserEngineering, Inc.,*32 FMSHRC at 1289, the Commission held that,generally speaking, the magnitude of the gravity of the violation and thedegree of operator negligence are important factors, especially for moreserious violations for which substantial penalties may be imposed. 

The Secretary has proposeda penalty of $716.00 for the violation cited in Citation No. 9206769. I haveconsidered and applied the six penalty criteria found in § 110(i) of theAct. Consideringall the circumstances, the Secretary’s original proposed penalty assessmentappears appropriate. 

 

The mine and its controlling entityare considered large in size under 30 C.F.R. § 100.3. The parties stipulatedthat payment of the proposed total penalty would not affect Respondent’sability to continue in business. Jt. Stip. 6. The history of assessedviolations, admitted into evidence at Ex. P-1, showed 10 violations of thisstandard at this mine in the two years prior to issuance of this citation. *Seealso* Tr. I at 73-74. 

 

I have addressednegligence and gravity in the discussion above. This Court notes that Respondent’sargument for a reduced penalty rests upon a modification of the gravity findingfrom “Reasonably Likely” to “Unlikely,” and the removal of the S&Sdesignation. For reasons already discussed *supra*, this Court rejectssuch suggested modifications. Finally, while accepting that Respondent acted ingood faith in abating the dangerous condition, this Court accords more weightto the gravity of the violation and the reasonable likelihood of serious or fatalinjury posed by the hazard in determining an appropriate penalty. 

 

Based on theforegoing, this Court finds that a penalty of $716.00 is appropriate. 

** **

**ORDER**

 

The Respondent,Consol Pennsylvania Coal Company, is **ORDERED** to pay the Secretary ofLabor the sum of $716.00 within 30 days of this order.[10]

 

 

 

 

/s/John Kent Lewis

John Kent Lewis

Administrative LawJudge

 

 

 

 

 

 

Distribution:

 

Ryan M. Kooi,Esq., Office of the Solicitor, Division of Mine Safety and Health, 201 12thStreet South, Suite 401, Arlington, VA 22202-5450 (kooi.ryan.m@dol.gov)

 

James P. McHugh,Esq., Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25301, (jmchugh@hardypence.com)

 

Craig Aaron,CONSOL Energy, Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, (craigaaron@consolenergy.com)

----

[1]This docket originally included four citations. Prior to hearing, the partiessettled Citation Nos. 9205021, 9204786, and 9205026. A Decision ApprovingPartial Settlement was issued on May 18, 2023. 

[2] Hereafter,the joint stipulations, transcript, the Secretary’s exhibits, Respondent’s exhibits,the Secretary’s post-hearing brief, and Respondent’s post-hearing brief areabbreviated as “Jt. Stip.,” “Tr.,” “Ex. P-#,” “Ex. R-#,” “S. Br.,” and “R. Br.,”respectively.

[3]Inspector Hutchinson has since retired and was unavailable to testify athearing, as he resides outside of subpoena range under Fed. R. Civ. P. 45(c).Tr. I. at 29.

[4] Theinspectors discovered that the methane monitor mounted on the continuous minerdetected a lower level of methane than their monitors—2.2 percent compared to2.5 percent—and issued a citation for failing to maintain the methane monitorin permissible and proper operating condition. Tr. I at 66; P-3. This citationwas issued as non-contributory to the face ignition. Tr. I at 66-68, 184-85.

[5]Since Consol implemented this addendum, there have been no further ignitions inthe H district. Tr. I at 81-82, 183. However, there have been additionalignitions in the G District, which does not require more frequent bit checks.Tr. I at 82.

[6]This Court specifically rejects the Respondent’s and Bohan’s implications thatthe “glow” caused by the frictional contact of the continuous miner with a sulfurball was comparable to the benign bioluminescence of a lightning bug. 

[7]“What is the most acceptable meaning of the phrase, proof by a preponderance,or greater weight, of the evidence? Certainly, the phrase does not mean simplevolume of evidence or number of witnesses. *One definition is that evidencepreponderates when it is more convincing to the trier than the opposingevidence.* This is a simple commonsense explanation which will be understoodby jurors and could hardly be misleading in the ordinary case.” 2 McCormick onEvid. § 339 (7th Ed.). Indeed, the notion of justice being anassessment by weighing has ancient roots, extending at least as far back as the*Iliad’*s Book XXII: “Then, at last, as they were nearing the fountainsfor the fourth time, the father of all balanced his golden scales and placed adoom in each of them, one for Achilles and the other for Hektor.” Homer, TheIliad, Book XXII (Samuel Butler trans., [Publisher] [ed.]) (1898).

[8]MSHA’s internal policy is to issue a citation for two or more damaged ormissing bits when they are within four feet of each other on the continuousminer head. Tr. I at 73, 121.

[9]The Commission expected that the third and fourth steps of the *Mathies*test would “often be combined in a single showing.” *Knox Creek*, 811 F.3dat 163, citing *Mathies*, 6 FMSHRC at 3-4.

[10]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.