**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

 

March 9, 2021
| SECRETARY  OF LABOR

 MINE  SAFETY AND HEALTH       

 ADMINISTRATION  (MSHA),

                Petitioner,

 

                        v.

 

CONSOL  PENNSYLVANIA COAL 

COMPANY  LLC,

                Respondent.                                                            |   |   | CIVIL PENALTY PROCEEDING

 

     Docket No. PENN 2019-0094

     A.C. No. 36-10045-486018

 

 

 

     Mine: Harvey Mine          |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION ANDORDER**

 

Appearances:              MathewG. Tom, Esq., & Kenneth J. Polka, CLR, Office of the Solicitor, U.S.Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor

 

                                    JamesP. 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 in Pittsburgh, Pennsylvania. The parties subsequentlysubmitted briefs which have been fully considered in reaching the withindecision.[1]

** **

**LAWAND REGULATIONS**

** **

30 C.F.R. § 75.380(d)(7) provides: 

** **

Eachescapeway shall be . . . [p]rovided with a continuous, durable directionallifeline or equivalent device that shall be . . . [l]ocated in such a mannerfor miners to use effectively to escape.

 

**FINDINGS OF FACT AND CONCLUSION OF LAW**

** **

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**

** **

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 Citation at issue in this proceedingwere issued.

 

2.     Harvey Mine 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 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.     Harvey Mine isowned by the Respondent.

 

6.     Payment of thetotal proposed penalty of $768.00 for the one remaining citation in this matterwill not affect the Respondent’s ability to continue in business.

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

 

8.     Citation No.9076458 contained in Docket No. PENN 2019-0094 was properly issued and servedby a duly authorized representative of the Secretary of Labor upon an agent ofRespondent at the date, time, and place stated in the Citation, as required bythe Act.

 

9.     Exhibit “A”attached to the Secretary’s Petition in Docket No. PENN 2019-0094 containsauthentic copies of Citation No. 9076458 with all modifications or abatements,if any.

 

10.  Citation 9076458remains in contest.

 

SBat pp. 1-2.[2]

 

**SUMMARYOF TESTIMONY**

** **

**Witnesses**

** **

JosephA. Vargo

 

            Atthe time of hearing, Inspector Vargo had worked for MSHA for over 12 years. T.13. He initially worked as a coal mine inspector and later in 2012, had beenworking as an electrical specialist. Prior to working for MSHA, Vargo hadworked as a coal miner for approximately 30 years.[3] T. 24.

 

            InspectorVargo had issued Citation No. 9076458 to Respondent arising from conditionsobserved at the Harvey Mine during a quarterly EO-1 inspection conducted onFebruary 21, 2019. T. 27; *see also*P-2. 

 

            Whiletraveling the No. 2 track entry of the 5A longwall section, which wasdesignated as an alternate escapeway, Inspector Vargo walked inby the No. 2entry towards the working section. As he was walking, he observed hosesprotruding from a pump car into a walkway at the 47 1⁄2crosscut. The hoses were located directly under a lifeline. T. 33; 64. WhenVargo travelled underground, he was accompanied by Consol representative TroyHellen.[4]T. 86.

 

            Athearing, photographs of the condition were admitted into evidence. However, becauseneither Vargo nor anyone else at the scene carried a camera at the time thecondition was observed, the photographs were taken after abatement of thecondition. As such, the lifeline was not visible in the photographs. T. 34-40; *seealso*R-8A-8D.

 

            Thelowest hose protruding from the pump car was fourteen inches vertical distancefrom the mine floor. The highest hose was 38 inches vertical distance from themine floor. T. 41. The farthest extending hose was 43 inches away from the pumpcar and into the walkway. T. 43. At the end of the 43-inch protrusion of hosesinto the crosscut, there was a rock dust bag on the ground. T. 46-47. 

 

            Thecitation at issue cites a § 75.380(d)(7)(iv) violation, which requires thatlifelines be located in such a manner for miners to effectively use them toescape during an emergency.[5]T. 48. 

 

Accordingto Inspector Vargo’s notes, the lifeline at issue was hung approximately 12inches away from the pump car and 12 inches off of the roof of the mine. T. 52.

 

Minersare trained to use taglines, or lines resembling clotheslines that attach toeach miner in the working section to keep them together in case of anevacuation. Miners attach themselves to taglines after they have donned theirself-rescuers and proceed in a single-file line to the exit, guiding themselvesby keeping one hand on the lifeline. T. 53-54. In an emergency, miners aretrained to don one self-rescuer and potentially carry an extra depending on theratio of miners to self-rescuers. T. 52. 

 

Thelifeline at issue was able to be pulled down from the art clips on the roof ofthe mine and stretched up to 54 inches in length. At the time the condition wasobserved, the safety representative tested whether the line stretched farenough outward for miners to avoid the slip and trip hazard presented by thehoses. Vargo determined that even when the line was stretched to its furthestextent, the hoses would not be avoided. T. 57-58. 

 

InspectorVargo indicated that the gravity of this citation was “Reasonably Likely,”because in the event the lifeline had to be used, it would have been more thanreasonably likely that a miner would trip and fall over the obstruction in thewalkway and could have possibly cause a domino effect of miners tripping overone another as they tried to quickly exit the mine. T. 59-60. 

 

InspectorVargo marked this citation “Significant and Substantial,” and explained in histestimony that he found an underlying violation of § 75.380(d)(7)(iv);identified a slip, trip, and fall hazard posed by the hoses protruding out fromthe pump car; determined that the hazard was likely to occur; and concludedthat injury would have been reasonably likely and reasonably serious. T. 61-63.

 

Assupport for the likelihood of injury occurring, Inspector Vargo explained thatin an emergency, miners would be walking quickly and may not be able to seewhere they are walking, particularly if there is smoke. In a smoke-filledatmosphere, headlamps, flashlights, or reflectors would not help withvisibility. T. 64. Vargo contemplated a number of possible injuries includingbumps, bruises, dislocations, sprains, lacerations, and contusions, and alsomentioned the possibility of self-rescuers falling off if miners tripped or hitthe corner of the metal pump car. T. 62-64. Due to the possibility ofthese injuries occurring, Vargo designated the likely injuries as “LostWorkdays and Restricted Duty.” T. 66. 

 

Vargotestified that in the No. 2 entry, the air flowed from the area of the hosesinby to the working section. In regular conditions, there are multipleelectrical installations outby that could catch on fire as well as dieseltransportation rides traveling the haulage route that could spread smoke up theNo. 2 entry to the working section if a fire were to occur. T. 65. In anemergency situation, when ventilation is disrupted, all three entries could befilled with smoke. T. 65-66. Vargo added that he was aware of ignitionsoccurring in this mine in the past. T. 66. 

 

Thefastest route for the miners to escape in the event of an emergency would bethe No. 2 entry, which means they would have passed by the citedcondition. T. 68. The citation indicates that ten miners would have beenexposed to the hazard. Vargo counted a stage loader operator, a supervisor, twoshieldmen, two shear operators, two mechanics, a maintenance foreman, and somecontractors in the working section at the time he issued the citation. T. 67. However,Inspector Vargo marked one person as affected. His reasoning was that the firstperson to reach the pump car would be the one who trips, falls, or slips. T.68. 

 

InspectorVargo marked negligence as “Moderate” because, in his estimation, the operatorshould have known the condition existed. The condition had been in existencefor at least eight days, as the pump car had been moved eight days prior to theissuance of this citation. During this period, three shifts of miners, includingthe supervisor, traveled past the condition three times daily. T. 69-71. 

 

Oncross-examination, Inspector Vargo was asked about stretcher tests. In astretcher test, a stretcher measuring 72 inches long by 16 inches wide isnavigated through an area and around obstacles to ensure that a stretcher wouldfit through the area in the event of an evacuation. T. 177. Vargo clarifiedthat a stretcher test is not performed to check for slip and trip hazards. T. 79.The Inspector denied that there was an issue of clearance and claimed that thestretcher test was never discussed or asked for by anyone underground. T. 80;84-85; 110. 

 

            Thepump car from which the hoses protruded was part of a “mule train,” which movedas a unit on tracks along the longwall. The mule train was made of multiplecars, one of which was the pump car. As the miners move farther away from themule train to retrieve the longwall panel, a “power move” occurs, wherein themule train is backed up so that the cables are positioned correctly. T. 88-89. 

 

            Oneside of the mule train is referred to as the “walkway side,” while the other isreferred to as the “tight side” or the “off-side.”[6] T. 90-91.

 

            Vargodenied being told that the position of the lifeline above the hoses was usualpractice in the mine and that the miners were used to its location. He furtherdenied ordering the miners to move the lifeline to the tight side of the pumpcar. T. 92-93. 

 

            Vargorecalled Consol representative Troy Hellen explaining that the miners couldpull on the lifeline and maneuver around the hoses and onto the rock dust bags,although he disagreed with counsel’s characterization of the bags as a bridge.T. 94. He stated that he had no problem with the lifeline being positionedabove the rock dust bags as long as the lifeline did not pull back towards thepump car. T. 95. 

 

Thelifeline at issue was manufactured like a bungee cord that allowed miners tostretch the line up to 54 inches. After measuring the lifeline, Vargodetermined that even at its furthest extent, the lifeline did not stretch farenough to ensure that evacuating miners would avoid the tripping hazard. T.99-100; 103. 

 

Vargotestified that the use of rock dust bags to even out the walkway was common,but also mentioned that at the site of the citation, there were hosesprotruding above the rock dust bags where the bags were supposed to be flat. T.100; 102. 

 

Vargodid not agree that the condition had been the same for five years and fivepanels, explaining that if the car was not moved up to the point where it wason the day the citation was issued, the hoses would have been eight feet backand would have been in a position to lay flatter on the ground. T. 102-03.

 

            Consoltypically positions the pump car so that its hoses are aligned with a crosscut,but it is often difficult to center the pump car at a crosscut because of thefunctions of other cars in the train. T. 110-11. 

 

            Vargoaddressed the Judge during his testimony in order to clarify that clearance wasnot at issue in this citation, stating “I didn’t even consider the stretcher. Iconsidered where the lifeline was located was a tripping hazard.” T. 124. Whenasked whether he considered the lifeline’s flexibility when issuing thecitation, the inspector replied that if the lifeline was over the top ofsomething, he would have cited it. In the event of an emergency, it’s notlikely that a miner under stress would have a clear enough mind to put seriousthought into maneuvering around obstacles. T. 125-26.

 

            AlthoughVargo recalled a meeting with several miners following his inspection, he did notrecall the names of the persons in attendance or what was discussed. T. 126-27.

 

            Inthe event that the lifeline passed through a mandoor that presented a trippinghazard, Vargo claimed he would have cited it. T. 129. He also claimed that hewould cite uneven ground depending on the vertical distance of the deviation. T.130-131. 

 

            AnotherMSHA inspector, Inspector John Hayhurst, inspected the area of the conditiontwo days prior to the issuance of this citation and did not cite a violationfor the lifeline. T. 133. Vargo denied any knowledge of what Hayhurst wasinspecting when he was at the 47 1⁄2 crosscut.It is possible that he was on the opposite side of the crosscut, where the beltis located, in which case he may not have observed the cited condition. T.134-35; 137-38.

 

Onredirect examination, Vargo explained that there are directional cones indifferent shapes connected to lifelines that signify caches of self-rescuers,refuge alternatives, or mandoors. T. 137. 

 

            Vargostated that the “safety guy” with him decided how to abate the lifeline issue andultimately abated this particular citation in his presence. T. 138-39. 

 

            Vargoclarified that the lifeline was not routed above the rock dust bags, butinstead hung directly over the hoses coming out of the pump car. T. 139-40. 

 

TroyHellen

 

Atthe time of hearing, Troy Hellen had worked at the Harvey Mine for approximately10 years, and held the title of respirable dust coordinator at the Harvey Mine.T. 153-54; 162. Hellen accompanied Inspector Vargo and another inspector duringthe inspection on February 21, 2019. The citation at issue was served on Hellenby Inspector Vargo. T. 154. 

 

Hellentook the photographs labeled as R-8 either later on the day of the inspectionor the day after the inspection in order to document the condition after thecitation was issued. With the exception of the lifeline having been moved,Hellen testified that the photographs accurately depicted the scene. T. 158-59.

 

Vargoand Hellen discussed their opposing views on the safest location of thelifeline after Vargo informed Hellen he would be issuing a citation. Hellen wasof the belief that the lifeline was able to be stretched over and around thehoses, allowing for a sufficient walkway on the walkway side of the entry. Hellenrecollected that Vargo thought the hoses were a problem, and that theyultimately decided to move the lifeline, although Vargo did not instruct him todo so. T. 159-60.

 

Hellentestified that the lifeline had been hung in the same location and position forfive panels and five years. T. 162. That is, it was hung from the roof of themine down the middle of the walkway and over the protruding hoses. T. 167-68. Consoldealt with the obstacle by building a bridge with rock dust bags or placing abridge over the hoses. T. 162-63. 

 

Theexact location of the pump car, and the train in general, depends on multiplefactors and changes with each power move. T. 163. The pump car is necessary forthe operation of the longwall section. T. 177. 

 

Thelifeline was on a bungee extension so that escaping miners could stretch theline without losing contact. In Hellen’s opinion, miners would have had noproblem holding onto the lifeline and following a path around the hoses in thewalkway. T. 163-64. The use of rock dust bags to make an area as level aspossible is customary in mining. The crew at the longwall used rock dust bagsto level out various tripping hazards in the mine, including track ties thatstick out into the walkway. T. 164-65. 

 

Consolinstalled the lifeline with flexible extensions throughout its entire length inorder to allow miners flexibility when using the lifeline. T. 168-69. *Seealso*R-6. Because of the bungee extension on the lifeline, the rock dustbags used to even out the floor would not impair the miners’ ability to use astretcher in the area. T. 179. The miners working near the affected area walkedthrough the cited area several times per day. T. 169. 

 

Accordingto Hellen, the lifeline could be used effectively where it was hung. T. 181-84.In an interview requested by Hellen, Inspector Vargo spoke with several crewmembers who conveyed their belief that a stretcher would be able to passthrough the walkway side in case of an emergency.[7] T. 181-184.Hellen himself was of the opinion that the walkway side would pass a stretchertest, and that escaping miners would have no difficulty navigating the area,even with a disabled miner on a stretcher. T. 190. 

 

InHellen’s opinion, the decision to move the lifeline from the walkway side tothe tight side was illogical. Hellen testified that the tight side was narrowerthan the walkway side and had many more obstacles that needed to be moved orheld back, including hoses, airlines, mesh, catheads, knee-high cable trays,cable troughs, head height airlines, and drisco lines. T. 184-85. He was of thebelief that the walkway side was “by far the better choice,” as it had fewerthings the miners would need to navigate around. T. 186. 

 

Hellenprovided examples of conditions that would provide obstacles similar to rockdust bags, including track crossties and rails, fallen ribs, and rocks, all ofwhich could be present in an emergency situation. T. 188-89.

 

Oncross-examination, Hellen did not dispute two recent instances in which a slip,trip, and fall hazard led to reasonably serious injuries at the mine: (1) aJuly 24, 2019 slip and fall that resulted in three stitches; and (2) an October1, 2019 twisted ankle resulting in two lost workdays. T. 203. 

 

Onredirect, Hellen stated that Consol will either need to place rock dust bags ora bridge over the hoses regardless of the exact location of the pump car. Oncethe car is parked in its new location, the miners ensure that the lifeline willgo around the obstacles without a problem. T. 225.

 

ChaseShaffer

 

Atthe time of hearing, Chase Shaffer was employed by Consol as a safetyinspector. He had worked at Harvey Mine for approximately six years.[8] T. 231-32. Shafferaccompanied the group of MSHA inspectors who went underground in Harvey Mine onFebruary 21, 2019. He served as Consol’s company representative. He personallyescorted Inspector Rob Hutchinson. T. 233-34.

 

Shafferexplained that the pump car from which the hoses protruded was one of severalcars in the mule train along the longwall. Other cars included equipment fordusting, power, and hydraulic pumping. T. 234-35. Shaffer stated that thelongwall pump car was essential to the ongoing operation of the longwallsection. T. 246.

 

Shafferwas aware that two days prior to the issuance of this citation, InspectorHayhurst had issued an unrelated citation at the 47 1⁄2crosscut. T. 239-40. 

 

Abrief discussion took place between Shaffer and Vargo, in which Shaffer voicedhis opinion that the lifeline was better off in its original position thanwhere it was moved to for abatement. This was in part because the clearance onthe tight side was smaller and there were more obstacles (things coming off thepump car and trough arms holding various cables) on the tight side, limiting thespace through which miners could move. T. 241-242. Mr. Shaffer also explainedto Vargo that the original position of the lifeline on the walkway side wasnormal practice and expressed at hearing that leaving the lifeline in itsoriginal position would have promoted consistency for the miners. T. 242. 

 

            Accordingto Shaffer, the biggest difference between a primary and secondary escapeway isthe mandatory required clearance. Primary escapeways must be six feet wide,while secondary escapeways must only be four feet wide. Secondary escapewayscan be even narrower if necessary equipment is present, in which case they needonly be wide enough to safely egress with an injured or ill miner. Oftentimes,questions pertaining to the adequacy of clearance are addressed by a stretchertest. T. 245-46. 

 

Ifan emergency were to occur underground, Shaffer believed that miners would relyheavily on their memory of their surroundings which, before this citation wasissued, had not changed in about five years. T. 251-52.

 

The5A longwall mining crew had worked the longwall since its first panel. Eachpanel is 15,000 feet in length and is worked for a little over a year. At thetime the citation was issued, the crew was on its fifth panel. T. 252. For themost part, the 5A longwall crew was still made up of its original members.[9] Shaffer wasof the opinion that because this crew had worked in the same setup for fiveyears, an alteration to the familiar environment could “mess them up.” T. 253.

 

HarveyMine does not have any policies dictating the proper way to level out unevenwalking surfaces in the mine. However, the mine had used a few differentmethods to flatten out areas where obstacles present themselves. Sometimes the minersused rock dust bags. Other times, they placed an aluminum platform crossoverbridge over the hoses. In wetter places, the miners had even used brick. T.253-54.

Afterthe miners and inspectors returned aboveground, Shaffer questioned the validityof the citation during a second conversation with Vargo. Shaffer was of theopinion that the walkway side would have passed a stretcher test if Vargo hadagreed to go back underground to test the area. T. 256. Shaffer did not believea violation existed. He believed the walkway was adequate in width and that theflexibility allowed by the lifeline made the walkway no different from anyother part of the escapeway. T. 256-58.

 

Oncross-examination, Shaffer explained that the mine employs GMS contractors thatwork in the longwall section along with the mine’s longwall crew. T. 262.

 

Ifthe lifeline was deployed by miners leaving the working section, the tensionclips holding the lifeline near the ceiling would release in a domino effect alongthe entire length of the lifeline so that it could be used along the entireescapeway. T. 270-72. 

 

AdamMachak

 

Atthe time of his testimony, Adam Machak had been a coal miner for approximatelyeight years and held the position of maintenance supervisor on the longwall forapproximately four years.[10]T. 275-76. Machak had worked on all five longwall panels at Harvey Mine. T.277. The crew that Machak worked with on the longwall were “pretty much the sameexact crew” that had worked together in that area for the five years leading upto the issuance of this citation. *Id.*

 

Atthe time Inspector Vargo arrived underground, Machak was working at the trainin the section.[11]T. 278. Machak observed Vargo saying that he was not happy with the way thelifeline was routed over the hoses or the bridge and recalls that Shafferoffered to perform the stretcher test, which Vargo repeatedly turned down. T.279. In an interview led by Inspector Vargo, members of the crew repeatedly expressedthat a stretcher would be able to pass through the walkway side and that theywould have been able to escape in an emergency regardless of whether the areawas filled with smoke.[12]T. 280. 

 

It was necessary for thehoses to be in their position along the longwall panel in order for them totransfer emulsion back to the tank and get pressure to the face. Consol dealtwith the obstruction caused by the hoses by making walkways around the hoses outof rock dust bags. T. 281. *See also* R-8A. The walkway around the hoseshad been like this since the first panel. T. 282. Similarly, Consol alsoplaced rock dust bags over crossties, spaced between 50 and 60 feet apart alongthe track, as makeshift bridges.[13]*Id.*

 

            Machaktestified that Vargo instructed the miners to move the lifeline to the tightside of the track. T. 283. Machak echoed Hellen and Shaffer’s concerns aboutmoving the lifeline to the tight side of the track, stating that there was lessroom, cables at knee height along the length of the track, and an airline anddrisco line hanging low enough from the roof that miners would have to duckdown to avoid potentially hitting their heads as they passed through. T.284-85. Although Machak did not agree with the decision to move the lifeline,he did not express this to Vargo at the time the lifeline was relocated. T.283-84.

 

            Consolminers attend trainings that simulate conditions of a smoke-filled mine. Inthese trainings, miners navigate through various obstacles in a smoke-filledroom. As part of this training, they must transfer a stretcher with an“injured” miner through the smoke and through a mandoor to fresh air. T. 286. Minersare taught to walk with slow and steady steps so that they do not rush in theevent of an emergency. T. 287. 

 

            Oncross-examination, Machak reiterated his belief that escaping miners would haveno problem following the rock dust bag path and keeping ahold of the lifelinein the event of an emergency. T. 293-94. 

 

**CONTENTIONSOF THE PARTIES**

 

            TheSecretary contends that the Respondent improperly allowed the positioning ofobstacles below a lifeline that hindered miners’ ability to use an escapeway asan effective means of escape. Specifically, the Secretary argues that ninehoses protruding from a pump car under the lifeline posed a slip, trip, andfall hazard that could possibly lead to injuries. The Secretary states thatregardless of the lifeline’s ability to stretch outwards into the escapeway,miners would have been forced to adapt to the adverse position of the lifelinein the event of an emergency. The Secretary further contends that the citedcondition is significant and substantial in nature, reasonably likely to resultin lost workdays or restricted duty for one person, and is the result ofmoderate negligence. Finally, the Secretary requests that the originallyassessed penalty of $768.00 remain unchanged. 

 

TheRespondent contends that the citation should be vacated due to the Respondent’sbelief that the lifeline at issue was fully accessible to miners and wouldserve as an effective means of escape in the event of an emergency. If theCourt does not vacate the citation, the Respondent requests that the citationbe modified from significant and substantial to non-significant and substantialand from the originally assessed penalty of $768.00 to a lower penalty of$100.00. 

 

**ANALYSIS**

 

Issue I:      WasCitation No. 9076458 properly issued in that the cited condition constitutes aviolation of 30 C.F.R. § 75.380(d)(7)? 

 

Issue II:     Assumingthe citation was a violation of 30 C.F.R. §75.380(d)(7), was the violation significant and substantial in nature? 

 

Issue III:    Assumingthe citation constitutes a violation, was the inspector’s gravity assessment oflost work days or restricted duty and of one person being affected supported bythe record? 

 

Issue IV:    Assumingthe citation constitutes a violation, is the moderate level of negligencedesignated by the inspector supported by a totality of the circumstances? 

 

Issue V:   Assumingthe citation constitutes a violation, is the originally assessed penalty of$768.00 appropriate? 

** **

I:          CitationNo. 9076458 was properly issued in that the cited condition constitutes a violationof 30 C.F.R. § 75.380(d)(7).

 

A violation of 30 C.F.R. § 75.380(d)(7)(iv) exists when there is no “continuous, durable directional lifeline in the alternateescapeway” or the lifeline is not “located in such a manner for miners to useeffectively to escape." 30 C.F.R. § 75.380(d)(7)(iv). At hearing and in their post-hearing brief, the Respondentchallenged that a violation existed and argued that the lifeline at issue couldbe used effectively. Furthermore, the Respondent argued that this citation “expand[s]the application of § 75.380(d)(7)(iv) beyondits clear language.” T. 181-84; 280; *see also* RB at p. 15. 

 

The Secretary cites to the same section of the Act as supportfor his opposing argument, contending that the lifeline at issue was notlocated in such a manner that miners could use it effectively to escape themine in the event of an emergency. *Id.* at 7. For the reasons thatfollow, this Court finds that the conditions that existed on February 21, 2019,violated 30 C.F.R. § 75.380(d)(7).

 

      Citation No. 9076458 describes the violation asfollows: “The continuous durable directional lifeline located at 47 1⁄2 crosscutNo. 2 track entry in the 5A operating longwall section MMU 001-0 is not locatedin such a manner for miners to use effectively to escape. There are 7 two inchhydraulic hoses and 2 three inch hydraulic hoses that extend out from the pumpcar 43 inches into the walkway. The vertical distance from the mine floor tothe top of the hoses range from 14 inches to 38 inches. The lifeline is locateddirectly above the subject hoses. This entry is the alternate escapeway forthis section.” Ex. A.

 

Inspector Vargo testified that the violation was issued after hecame upon an area in the escapeway “where hoses were protruding out of the pumpcar. And directly overhead of that was a lifeline.” T. 33. Under examination byCLR Polka, Inspector Vargo testified that his primary concern in issuing theviolation was a “slip and trip from the hose that’s protruding out from thepump car that the miners would trip over using the lifeline.” T. 16-17; 58; 62;67-68; 78; 80. Inspector Vargo also testified that, in his opinion, thelocation of the lifeline was reasonably likely to cause an injury in the caseof an emergency, particularly if the area was filled with smoke and visibilitywas limited. T. 62-63. The possible injuries contemplated by Inspector Vargoincluded bumps, bruises, dislocations, sprains, lacerations, and contusions. T.63-64.

 

The question before the Court is whetherthe lifeline’s location above the protruding hoses posed the risk of a trip andfall hazard and whether the lifeline is located in such a manner that minerscan use it effectively to escape in an emergency situation. As noted in *BlackBeauty Coal Co.*and *American Coal Co.,*the Commission interprets“effectively” in the context of § 75.380(d)(7)(iv) to mean “quickly andsafely.” *Black Beauty Coal Co.,* 33 FMSHRC 1174, 1176 (May 2011) (ALJ), *aff’d*36 FMSHRC 1121 (May 2014); *American Coal Co.*, 29 FMSHRC 941 (Dec.2007). 

 

In *AmericanCoal Co.*, the Commissiondiscussed the importance of escapeways and concluded that:

 

There is nodisputing that escapeways are needed for miners to quickly exit an undergroundmine and that impediments to a designated escapeway may prevent miners frombeing able to do so. The legislative history of the escapeway standard statesthat the purpose of requiring escapeways is to allow persons to escape quicklyto the surface in the event of an emergency. 

 

S. RepNo. 91-411, at 83, *Legis.Hist.*, at 209 (1975). 29 FMSHRC 941 (Dec. 2007). 

 

In*Black Beauty*, the ALJ stated that “the existence of a continuouslifeline is the means to quickly and safely exit the mine” and stressed “thedanger of not being able to access or use the lifeline in the event of anemergency where visibility is reduced and miners must rely upon the tangiblenature of the lifeline to quickly and safely escape the mine.” 33 FMSHRC at1177-78. TheCommissionlater affirmed the ALJ’s conclusion that a violation of § 75.380(d)(7)(iv)occurred because the lifeline was located at a height of seven to twelve feetabove the mine floor and could not be used effectively. 36 FMSHRC 1121.

 

ThisCourt does not find Respondent’s argument that the lifeline was in anappropriate position and readily accessible persuasive, even given its abilityto stretch into the escapeway. The ALJ in *Twentymile*held that a 1-inchwater hose that ran underneath a lifeline presented an obstruction to miners,and that asking miners to let go of the lifeline, reach around a 1-inch waterhose that ran underneath the lifeline, and find the lifeline again on the otherside of the hose constituted an impediment to a quick escape in difficultconditions. *Twentymile Coal Co.*, 34 FMSHRC 2293 (June 2010) (ALJ). Here,even if miners never lost contact with the lifeline, its position would haverequired escaping miners to identify the protruding hoses as an obstacle andmaneuver around them in order to escape quickly and safely. In emergencysituations, miners “must exit the mine as quickly as possible.” *Id*at2303.

 

Respondentargued in its post-hearing brief that Inspector Vargo cited the wrong standard,and that the Inspector confused § 75.380(d)(7)(iv)with §75.380(d)(1), which covers obstacles andtripping hazards. At hearing, there was muchtestimony directed toward various escapeway conditions, including the width ofthe escapeway and stretcher clearance. *See* T. 83-85; 123-24;176-78; 182-84; 191; 248. Such conditions may or may not constitute violationsin and of themselves. However, in reaching this decision, this Court onlyconsidered conditions that specifically relate to the location of thelifeline and whether miners could have used it as an effective means of escape.

      Considering, therefore, the record *in toto* andPetitioner’s persuasive arguments on point, this Court finds Citation No.9076458 to be properly issued.

 

II:        Theviolation was correctly designated as significant and substantial.

 

For nearly a generation, the Commission's analytical framework forevaluating purported S&S violations rested upon the four-step analysis setforth in *Mathies Coal Co.*, 6 FMSHC 1, 3-4 (Jan. 1984). Under the *Mathies*test, a violation was S&S if: 

 

(1)the underlying violation of a mandatory safety standard; (2) a discrete safetyhazard; (3) a reasonable likelihood that the hazard contributed to will resultin injury; (4) a reasonable likelihood that the injury in question will be of areasonably serious nature.**

* *

*Mathies Coal Co.*, 6 FMSHRC 1, (Jan. 1984).

 

In *MSH**A v. Newtown Energy, Inc.,*38 FMSHRC 2033,2036-2040 (Aug. 2016), the Commission modified *Mathies*by adding a“reasonable likelihood" inquiry to the second step. Under *Newtown*,the S&S analysis inquires whether:

 

(1) there has been a violation of a mandatory safety standard;

(2) based upon the particular facts surrounding the violation, thereexists a reasonable likelihood of the occurrence of the hazard againstwhich the mandatory safety standard is directed;

(3) based upon the particular facts surrounding the violation, theoccurrence of that hazard would be reasonably likely to result in aninjury; and

(4) anyresultant injury would be reasonably likely to be reasonably serious. 

 

*MSHA v. ICG Illinois, LLC,*38 FMSHRC 24*7*3, 2483(Oct. 2016) (Althen Dissenting).

 

The Commission, in *Newt**own*, held that the properfocus of the second step in *Mathies*was the likelihood of the occurrenceof the hazard the cited standard is designed to prevent. *Newtown*, 38FMSHRC at 2037, FN 8. The majority further emphasized that it was essential forthe judge to adequately define the particular hazard to which the violationallegedly contributed. *Id.*at 2038. The starting point for determiningthe hazard should be the actual cited section. *Id.*

 

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. 9076458 was properly designated as S&S.

 

a.      Violation of a Mandatory Safety Standard 

 

The factsand discussion *supra* establish a violation of 30 C.F.R. § 75.380(d)(7), which is a mandatory safety standard. 

 

b.      Reasonable Likelihood of the Occurrence of the Hazard 

 

Thehazard at issue is a trip and fall hazard posed by the position of hoses belowa lifeline. The Commission has repeatedly stated thatwhen emergency standards are at issue, the Court should analyze them in thecontext of an emergency. Emergency standards “are different from other minesafety standards,” as they are “intended to apply meaningfully only when anemergency actually occurs.” *ICG Illinois,LLC*, 38 FMSHRC 2473, 2476 (Oct. 2016), *citingCumberland Coal Res., LP*, 33 FMSHRC at 2367, *aff'd*, 717 F.3d 1020(D.C. Cir. 2013). Accordingly, when determining whether a violation of anemergency standard is significant and substantial in nature, the violationshould be considered in the context of the emergency contemplated by thestandard. *Id.*, *citing**Spartan Mining Co.*, 35 FMSHRC 3505,3508-09 (Dec. 2013).”[14] This Court finds that there was a reasonable likelihood thata trip and fall would have occurred as miners traveled through the No. 2 entry.This entry is the fastest route out of the section and is traversed daily bythree shifts of miners traveling to and from the 5A longwall. T. 68-69. At the timethe citation was issued, Inspector Vargo counted 10 miners working in thissection. T. 66-67.

 

The occurrence of a trip and fall is particularly likely in theevent of an emergency when miners would be hurrying to evacuate the mine indangerous conditions. At hearing, Inspector Vargo testified that miners wouldhave difficulty identifying and avoiding the hoses in a smoky atmosphere. T.63; 132. Inspector Vargo’s concern about the difficulty of maneuvering withlimited vision was further supported by parts of Troy Hellen and ChaseShaffer’s testimonies. T. 187; 222; 250-51.

 

This Court has carefully considered the arguments advanced byRespondent that miners working in the cited area were accustomed to locatingand avoiding the hoses protruding from the pump car as they moved through thearea. However, this Court does not find the arguments persuasive for severalreasons. First, the location of the pump car constantly changes, as it is partof a mule train that moves as a unit along the longwall. Second, in the eventof an emergency, the miners exiting the section may not be thinking clearly dueto alarm or confusion. Third, the prolonged presence of a violation does notjustify its existence or make the condition acceptable.

 

Given these considerations, it is reasonably likely that in theevent of an emergency, miners using the escapeway would be reasonably likely totrip and fall over obstacles located below the lifeline.

 

c.      Occurrence of the Hazard Would Be Reasonably Likely to Resultin an Injury 

 

In the event of an emergency, it is reasonably likelythat miners hurrying to escape the section in dangerous conditions could tripand fall over the hoses located below the lifeline. The trip and fall hazardwould be reasonably likely to result in injuries including strains, sprains, andfractures for the miner or miners who tripped and fell as well as for thosearound them. *See, e.g., Maple Creek Mining, Inc.*, 27 FMSHRC 555, 562-63(Aug. 2005) (affirming a Judge’s finding that a trip and fall in a muckyescapeway would lead to leg or back injuries); *Buffalo Crushed StoneInc.*, 19 FMSHRC 231, 238 n.9 (Feb. 1997) (finding that slipping on awalkway would reasonably result in head injuries or finger or wristfractures); *S. Ohio Coal Co.*, 13 FMSHRC 912, 918 (June 1991)(affirming a Judge’s conclusion that a trip-and-fall accident would result ininjuries such as “sprains, strains, or fractures”). Additionally, fallen minersor equipment dislodged during the fall could become obstacles to othersattempting to escape, increasing the likelihood of an injury occurring.

 

d.      Any Injury Resulting from the Occurrence of a Trip and Fall WouldBe Reasonably Likely to Be Serious in Nature 

 

At hearing, MSHA Inspector Vargo credibly testifiedregarding the serious injuries that could becaused by a trip and fall over the hoses, including bumps, bruises,dislocations, sprains, lacerations, and contusions from falling onto the pumpcar or to the mine floor. T. 63-64. The Commission has longrecognized that broken bones and other injuries likely to result from atrip-and-fall accident are sufficiently serious in nature to support an S&Sdesignation. *See, e.g., Maple Creek Mining*, 27 FMSHRC 555,562-63(affirming a Judge’s conclusion that leg and back injuries arising fromthe failure to maintain an escapeway in a safe condition constitute reasonablyserious injuries); *Buffalo Crushed Stone Inc.*, 19 FMSHRC 231, 238(concluding that finger or wrist fractures resulting from slipping on a walkwayconstitute reasonably serious injuries)); *S. Ohio Coal Co.*, 13 FMSHRC912, 918 (June 1991) (affirming a Judge’s conclusion that a trip-and-fallaccident would result in reasonably serious injuries including sprains,strains, or fractures). The Inspector also noted that self-rescuers could be dislodged. T.63-64. Because the hazard was located in an escapeway, miners would be movingthrough the area quickly and may experience limited visibility. A trip and fallcould result not only in an immediate injury, but may also delay evacuation ofthe mine or require more individuals to enter the mine to perform a rescue,leading to serious injury or even death. Given this, the occurrence of a tripand fall would reasonably be likely to result in a serious injury.

 

III:      Theinspector’s gravity assessment of lost work days or restricted duty and of oneperson being affected is more than supported by the record.

 

TheCommission has noted that the “gravity penalty criterion under section 110(i)of the Mine Act, 30 U.S.C. § 820(i), ‘is often viewed in terms of theseriousness of the violation.’” *Consolidation Coal Co.*, 18 FMSHRC1541, 1549 (Sept. 1996) (citing *Sellersburg Stone Co.*, 5 FMSHRC287, 294-95 (Mar. 1983), *aff'd*, 736 F.2d 1147 (7th Cir.1984); *Youghiogheny & Ohio Coal Co.*, 9 FMSHRC 673, 681 (Apr.1987)). The gravity analysis focuses on factors such as the likelihood ofinjury, the severity of an injury if it occurs, and the number of minerspotentially affected.” *Sec’y of Labor v. Newtown Energy, Inc.*, 38 FMSHRC2033, 2049 (2016). Considering the serious nature of a potential injuryresulting from a trip-and-fall accident, discussed *supra*, theinspector’s gravity assessment of lost work days or restricted duty is morethan supported by the record. Miners exiting the mine in an emergency would betravelling quickly and may not be not be thinking clearly, making seriousinjuries including bumps, bruises, dislocations, sprains, lacerations, andcontusions more likely. Additionally, the presence of smoke could severelylimit visibility and increase the risk of disorientation and injury.

 

Theinspector’s assessment of one person affected is also supported by the record. Inthe event of an evacuation, it is unlikely that more than one miner attached tothe tagline would trip, fall, or slip over the protruding hoses while exitingsingle file.

 

IV:       Themoderate level of negligence designated by the inspector is supported by atotality of the circumstances. 

 

Anoperator is moderately negligent when “the operator knew or should have knownof the violative condition or practice but there are mitigating circumstances.”30 C.F.R. § 100.3 Table X. This Court finds that Respondent knew or should haveknown that this condition existed and posed a reasonable risk of injury.Respondent does not deny its awareness of the condition, which existed forapproximately five years. T. 162; 251-53. At hearing, Respondent argued that miners working in the cited area were accustomed tolocating and avoiding the protruding hoses as they travelled through theescapeway multiple times per day.**Given that the operator knew orshould have known of the condition, this Court finds that the moderate level ofnegligence designated by the inspector is supported by a totality of thecircumstances.

 

V:        Theoriginally assessed penalty of $768.00 is appropriate. 

 

Theprinciples governing the authority of Commission Administrative Law Judges toassess civil penalties *de novo* for violations of the Mine Act are wellestablished. 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). Commission Judges are not bound by the Secretary’s penaltyregulations. *Am. Coal Co.*, 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, theAct requires that in assessing civil monetary penalties, the judge shall considerthe six statutory penalty criteria:

 

...the operator'shistory of previous violations, the appropriateness of such penalty to the sizeof the business of the operator charged, whether the operator was negligent,the effect on the operator's ability to continue in business, the gravity ofthe violation, and the demonstrated good faith of the person charged inattempting to achieve rapid compliance after notification of a violation. 

 

30U.S.C. 820(i).

 

The Secretary has proposed a penalty of $768.00 forthe violation cited in Citation No. 9076458. I have considered and applied thesix penalty criteria found in Section 110(i) of the Act and, for thefollowing reasons, affirm the Secretary’s assessment.

 

 Thehistory of assessed violations has been admitted into evidence and shows 230violations by this operator in the 15-month period prior to the issuance of thecitation, seven of which involve a similar standard. P-4. I have addressednegligence and gravity in the discussion above and have found that theviolation was the result of moderate negligence and was reasonably likely to resultin lost workdays or restricted duty to one person. The mine is a large minethat produces well over the annual tonnage required to fall into the largestcategory of mines under 30 C.F.R. § 100.3. The parties have stipulatedthat an assessment of $768.00 would not affect the operator’s ability tocontinue in business. *See supra* J.S. 6. Finally, I have considered that thecitation was abated in good faith. Based on the foregoing, this Court findsthat a penalty of $768.00 is appropriate. 

 

**ORDER**

 

The Respondent, Consol Pennsylvania Coal Company, is**ORDERED** to pay the Secretary of Labor the sum of $768.00 within 30 daysof this order.[15]

 

 

 

/s/John Kent Lewis

JohnKent Lewis

AdministrativeLaw Judge

 

 

Distribution:

 

KennethJ. Polka, CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt.Pleasant, PA 15666; polka.kenneth@dol.gov

 

JamesP. McHugh, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329; jmchugh@hardypence.com

 

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

----

[1] The DecisionApproving Partial Settlement issued by this Court on February 10, 2020, disposedof Citation Nos. 9080394 and 9079324.

[2] “T” refersto the hearing transcript. “P” refers to the Secretary’s exhibits. “R” refersto Respondent’s exhibits. “SB” refers to Secretary’s post hearing brief and“RB” refers to Respondent’s post hearing brief.

[3]*See* T.23-25 for a detailed description of Vargo’s mining experience and specializedcertifications. 

[4] InspectorRob Hutchinson, Inspector Steve Cofuss (Vargo’s supervisor), and anotherinspector were underground with Vargo, but split off to do the permissibilityon the longwall face before Vargo encountered the condition at issue. T. 87;105. 

[5] Lifelinesare thin nylon lines resembling clotheslines that are hung in mines for minersto hold onto and follow when escape is necessary, particularly when vision isobstructed by smoke. T. 48-49. Tactile signals are placed along lifelines tosignify emergency resources such as mandoors, self-rescuers, or caches nearby.T. 49-50. 

[6] Vargorepeatedly denied his familiarity with the term “tight side.” Hellen laterstated that he would be surprised if an inspector was not familiar with theword. T. 156. For the remainder of this Decision, the “tight side,” or“off-side,” of the track will be referred to as the “tight side” in theinterest of uniformity.

[7] Hellenrecollects that the group of crew members was made up of: Abraham Dickie,stageloader operator; Scott Yakicic, face foreman; Larry Anderson, outbyforeman; Mike Petrich, maintenance P&M; and himself. T. 181. 

[8] For othermining positions held and certifications received, see T. 230-234.

[9] Shafferestimated that of the six longwall crew members, five were original. T. 262. 

[10]*See*T.275-76 for other mining positions held and certifications received. 

[11] The trainis also referred to as the “power car.” Machak believes he was doing somethingalong the lines of changing emulsion filters at the time the inspector arrived.T. 278. *See also* R-8C.

[12] Machakidentified two crew members that were questioned by Vargo: Abraham Dickie andScott Yakicic. T. 280.

[13] Crosstiesare also referred to as “picker ties.” T. 282. 

[14]The likelihood of an emergency occurring is irrelevant tothe *Mathies *inquiry. *See Black Beauty Coal Co.*, 36FMSHRC 1121, 1124 (May 2014); *Cumberland*,* *717 F.3d at 1027; *ICGIllinois*, 38 FMSHRC 2473, 2476.

[15] 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.