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

June 15, 2020

DECISION AND ORDER

Appearances: Brittany Williams, 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, 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 post hearing briefs and reply briefs which have been fully considered in 

reaching the within decision.1

LAW AND REGULATIONS

§ 75.1700 Oil and gas wells.

[STATUTORY PROVISIONS]

Each operator of a coal mine shall take reasonable measures to locate oil and gas

wells penetrating coalbeds or any underground area of a coal mine. When located, 

such operator shall establish and maintain barriers around such oil and gas wells

 1 On August 16, 2019, this Court issued a Partial Decision Approving Settlement that disposed of 

Citation/Order Nos. 9079299, 9079304, 9079305, 9079239, and 9079241.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

v.

CONSOL PENNSYLVANIA COAL CO., 

LLC,

 Respondent.

 CIVIL PENALTY PROCEEDING

 Docket No. PENN 2019-0019

 A.C. No. 36-07416-476696

 

 Mine: Enlow Fork Mine
2

in accordance with State laws and regulations, except that such barriers shall not 

be less than 300 feet in diameter, unless the Secretary or his authorized 

representative permits a lesser barrier consistent with the applicable State laws 

and regulations where such lesser barrier will be adequate to protect against 

hazards from such wells to the miners in such mine, or unless the Secretary or his 

authorized representative requires a greater barrier where the depth of the mine, 

other geologic conditions, or other factors warrant such a greater barrier.

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

The parties’ joint stipulations are as follows:

1. Enlow Fork is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission.

2. Enlow Fork is an “operator” as contemplated by the Federal Mine Safety and 

Health Act of 1997, as amended (“Mine Act”).

3. The proposed penalties, if upheld, will not affect Enlow Fork’s ability to 

continue in business.

4. Each citation was properly served as required by the Mine Act.

T. at 5-6; see also SBI, p. 1.

2

 2 “T” refers to the hearing transcript. “GX” refers to the Secretary’s exhibits and “RX” refers to 

Respondent’s exhibits. “SBI” refers to the Secretary’s original post hearing brief and “SBII” 

refers to his reply brief. “RBI” refers to Respondent’s original post hearing brief and “RBII” 

refers to its reply brief.
3

SUMMARY OF TESTIMONY

WITNESSES

James Baker

James Baker had been employed at MSHA for five and a half years. T. 12-13. He had 

spent 22 week at the National Mine Academy and had a week-long class in journeyman training. 

T. 13. Prior to his employment with MSHA he had worked for approximately 22 years in 

mining, 17 years underground, and 5 years on the surface.3 T. 13.

At the time of hearing, Baker worked as a coal mine inspector. T. 13. On direct 

examination, Baker testified that in September 2018 he was performing a regular E01 inspection 

at Enlow Fork Mine when he was informed that the operator had struck a gas well. T. 15. Baker 

verbally issued a § 103(k) order. T. 18. He met with the mine foreman, Joe Bartolotto, traveled 

with Bartolotto to the E 30 Longwall Section, No. 73 Shield, and found the borehole that had 

been cut through. T. 19.

On September 10, 2018, Baker issued Citation No. 9079236. GX-1. He issued such based 

upon Respondent’s failure to properly locate and plug the cited gas well in violation of Section 

75.1700. GX-1; T. 22-22. As to the violation’s gravity, Baker found that an injury was 

reasonably likely to occur. T. 21. Without locating the well, there would be no way of knowing if 

methane gas were present. He concluded that bits on the shearer drum could turn and strike a gas 

well “not properly grouted or concrete,” possibly causing an ignition of any methane gas present. 

T. 21-22, 48. 

Enlow Fork had a history of methane and ignitions. T. 22. It had been on a five-day spot 

for the amount of methane liberated in a 24-hour period. T. 22.

Baker determined that three persons would be affected by the violation because typically 

two shearer operators and one shield man were at the face the entire 9-hour shift. GX-1; T. 22. If 

bits struck the unlocated borehole or casing with methane present, an ignition causing burns or 

smoke inhalation to three individuals could have taken place. T. 22-23. The worst case scenario 

would have been an explosion. T. 23.

On cross-examination Baker agreed that Consol had preserved the scene after the well 

breach. T. 30. There was no methane found. T. 31. The top hole was “very clean.” T. 32-33. The 

operator’s crew had done everything in regard to the DNF mining procedures longwall mining 

method.4 GX-3; T. 34.

 3 See T. 13-14 for more detailed description of Baker’s mining experience and certifications.

4 DNF stands for “did not find.” T. 23; GX-3.
4

The well was ultimately plugged with concrete being applied to the mine floor and a 36-

inch plug installed in the upper hole. GX-1, Section 17; T. 36. Baker conceded that Section 

75.1700 did not specifically set forth a duty to plug located wells. T. 38. He further 

acknowledged that he knew of no applicable definition or MSHA promulgated rules for 

“reasonable measures” to locate wells. T. 40.

The cited well was ultimately located under a sand mound at a third-party’s house. T. 41. 

Baker again affirmed his belief that the operator or operator’s contractors should “have 

probably found” the well because “it was so close to the way they found it underground that they 

probably should have found it on top...” T. 40.

Baker described the hazard thusly: “if your bits from your shearer hit that casing or well 

and it had methane in it, it could cause an ignition.” T. 48. There was, however, no casing 

involved in the within citation. T. 48-49. In reaching his S&S determination, he had taken into 

account the fact that MSHA’s cut-through plan allowed the operator to cut through wells that 

could not be located. T. 50. Baker was surprised that another inspector (Young) had found nonS&S in a similar situation in which an operator had cut through a well that it had been unable to 

locate. T. 51; GX-3. In reaching his S&S determination, Baker had not considered such factors—

as considered by Inspector Young—that the well was not producing, that the well contained no 

metal casing, that the well was covered over with dirt on the surface, that there was “plenty of air 

on the face to dilute the methane coming out of [the] well bore.” T. 53-54.

When asked how he could determine whether a violation was S&S if he did not know the 

four parts of Mathies, Baker replied: “I guess I can’t.”5 T. 54.

Baker again expressed surprise that, in another situation involving a borehole cutthrough, an inspector found that the risk of injury to be unlikely. GX-4; T. 54-55.

On redirect examination, Baker noted that wells should be properly sealed, grouted, and 

plugged before an operator cuts through them. T. 57-58.

On recross, Baker’s investigation as to the efforts exerted by Respondent in attempting to 

locate the cited well was limited to the information received from the contractor, 18 Karat, and 

Burns. T. 62.

Jeremy Williams

Jeremy Williams began his employment with MSHA in 2005 and had been employed as 

a supervisory mine safety and health specialist since 2012. T. 66. He had previously worked as a 

ventilation specialist and health specialist, receiving ventilation training every year. T. 66-67. 

 5 Despite Baker’s response, this Court is persuaded that the inspector did, in general, understand 

the steps in Mathies but was becoming frustrated by operator’s counsel’s vigorous crossexamination.
5

Prior to his employment with MSHA, Williams had worked for Consol Energy beginning in 

1998, last working as an assistant shift foreman and section foreman. T. 67. He had a bachelor’s 

degree in mining engineering from West Virginia. T. 67.

On direct examination, Williams testified that his current duties included review and 

approval of gas well pillar permits, gas well cut-throughs, and alternative borehole plans. T. 68. 

As to gas well cut-through plans, mine operators, as Respondent, must petition for modifications 

to plug and mine through gas wells pursuant to Section 75.1700. T. 69; GX-7. Operators may not 

engage in longwall mining through gas wells without plugging them. T. 74. Operators, through 

their engineering departments, obtain mapping and databases with the state, and gas well maps to 

locate on-the-surface gas and oil wells. T. 75.

Hazards associated with cutting into a well, which has not been plugged, included 

methane inundation, ignition, and explosion. T. 75. Enlow Fork was a gassy mine, probably 

liberating in excess of six million cubic feet a day, and having a history of ignitions. T. 75-78; 

GX-6, 7. Some of the past ignitions did not involve a metal casing. T. 89-90. Often boreholes 

were full of water with methane boiling up through the water. T. 92. Fuel, oxygen, and a heat 

source were necessary for an ignition to occur. T. 95-96.

Generally, the mine maps show where a gas well is located. T. 102. The mine operator, 

through its own personnel or contractors, will attempt to locate wells, observing the local 

topography, including depressions, using metal detectors, searching for any evidence of gas 

wells. T. 102. Once a well is located, the operator will plug it in order “to mine through to the 

point for the petition for modification.” T. 102. Given the different depths in the Pittsburgh Coal 

Seam, one would expect that a hole could deviate up to 40 feet away, and Williams believed that 

it was the operator’s responsibility to search that area. T. 103-104.

According to the DNF 2019, Williams testified that a reasonable search to locate a well 

would require an operator or its contractors to go out and conduct a physical examination of the 

area. T. 104. If evidence were found, metal detectors could be used to find any casings or other 

evidence of well drilling, such as couplers. T. 104. Subsurface excavations could also be 

performed with shovels, Bobcats, bulldozers, and any other types of equipment to strip off the 

top soil and dig down to locate a borehole. T. 104. Even if metal casings were not found, wood 

conductors might be discovered on the surface. T. 104. Once a well is located and plugged, the 

operator can mine through without incident. T. 104.

As to the well at issue, it “was basically in a guy’s back yard,” located in the leach bed 

for his sewage system. T. 104. Williams opined that the operator had not exercised due diligence 

in opting not to do subsurface excavation. T. 105.

At times there might be sand pipes sticking out of the ground, indicating the presence of a 

well. T. 105. However, here there were none, probably due to the construction of the home. T. 

105. The area was graded over and there was no evidence of the presence of a well due to 

excavations and landscaping over the years. T. 105. There was no hole present and no pipe 

sticking out of the ground. T. 105.
6

Given that the petition for modification required the operator to locate and plug gas wells, 

Williams opined that Section 75.1700 was violated because “in this scenario, a gas well was not 

located or plugged and then mined through.” T. 107, 108.

On cross-examination, Williams testified that he had been told that the mine operator had 

not dug with Bobcats or bulldozers. T. 110. Williams agreed that, consistent with the standard of 

the industry, Respondent’s contractors had dug down in the cited area to uncover any metal 

evidence. T. 110-111. Old mine maps might have wells separated by 700 to 1,000 feet. T. 111. 

MSHA has not promulgated any rules as to what would constitute reasonable measures to 

be taken by operators to locate wells. T. 111-112. Williams was unaware of any definition of 

reasonable measures that could be given to the regulated community. T. 112. He was aware that 

Respondent’s contractors had dug with hand tools in the area of the “guy’s yard” to search for 

metal fragments—but not with Bobcats, bulldozers, or high lifts. T. 113. Williams agreed that 

the petition for modification did not specifically set forth a requirement that wells be located; 

rather it dealt with the plugging procedures to be followed once a well was discovered. GX-8; T. 

115.

As to planning operations near a well believed to exist, Williams opined that this would 

not apply to a situation where the operator simply could not find the well. T. 116-118; GX-7, p. 

7.

Williams was aware that of five reported wells believed not to have existed, the operator 

had only intersected one. T. 124; RX-E. He could not remember whether in the past he had stated 

that the Respondent had taken reasonable measures to find the well in question. T. 124.

Of the approximately seven episodes characterized as ignitions, Williams agreed that all 

but one were located in the headgate, tailgate or development sections. T. 126-127. At 50,000 

CFM, there would be approximately ten times more ventilation delivered to the longwall surface 

at Enlow as opposed to the continuous miner development section, which only had 5,000 CFM. 

T. 128-129.

Williams was not aware of any incident where Consol had caused anyone to be injured 

because of intersecting a borehole or gas well. T. 134. He couldn’t “say for sure” whether the 

operator’s contractor’s grid search in the 100-foot zone area with metal detectors constituted a 

reasonable search. T. 137. Williams testified that Consol usually did a “good job” in looking for 

gas wells, and to the best of his knowledge 18 Karat was a reputable contractor. T. 138, 140.

Joseph Bartolotto

At the time of hearing, Joseph Bartolotto had been safety inspector at Enlow Fork Mine 

for the past 8 months. T. 143-144. He had gone to technical school for computer-aided drafting. 

T. 144. He had started in the coal industry in 2013 as a surveyor, moving into the dust 

department. T. 144. He had worked at Bailey Mine as a GMS contractor employee, working on 

the longwall, then as a dust technician. He had all his dust certifications, PA blasting cap, federal 

train-the-trainer card, West Virginia and Pennsylvania black hat. T. 144.
7

On direct examination, Baker testified that he had accompanied Baker on the date the 

inspector had issued Citation No. 9079236. T. 144-145. They went to the longwall, met with the 

section boss, and traveled onto the face. T. 146. They checked for gas immediately and found 

none. T. 146. People on the section had also found none. T. 146. After inspecting the intersected

borehole, they decided upon a course of action to plug it and then continue mining through. T. 

147. 

The well site was intersected at 12:10 and they were on the scene prior to 2:30. T. 147. At 

3:33 there was a verbal modification of the K order and permission was given to plug the hole. T. 

147; RX-D. 

Reflective signs hanging down from shields gave notice that the area was a gas well zone. 

T. 148. There was a sign reading “gas well zone starts here” and then a sign on the other side 

reading “ends here.” T. 148. The start of the zone was No. 62 Shield and the end of the zone was 

No. 80 Shield at the pluses of 107, plus 85 to 106. T. 149; RX-L. The gas well was intersected at 

No. 73 Shield. T. 151.

Robert Botroac

Botroac worked as a section foreman at Consol. He had an associate’s degree in mining 

and technology and had worked for Respondent since 2008, primarily as a longwall and gate 

foreman. T. 153. He was section foreman when the borehole in question was intersected. T. 154.

Botroac testified that on September 6, 2018, he had received information about a DNF well zone 

and had set the 100-foot zone with signs wired to a shield. T. 155-157. In mining the 100-foot 

zone, additional gas checks are taken. T. 157.

Robert J. Robinson

Since 2017, Robert J. Robinson had worked as director of engineering for Consol mines. 

T. 162. He had a bachelor’s of science in mining engineering. T. 162. He had worked in the coal 

industry since 1976, had transferred to Bailey Mine in 1998 and had been promoted to director of 

engineering for Respondent in 2017. 6 Dating back to the late 1980’s he had been involved in 

conducting searches for gas wells and plugging them according to the 101 (c) petition. T. 163-

164.

On direct examination, Robinson testified that some of the challenges presented to 

Respondent in locating old gas wells included the fact that many of the wells were drilled prior 

to 1940, using steam rigs. T. 164. These old wells were almost exclusively drilled with cable tool 

rigs. T. 164. Wells, such as the one at issue, were extremely difficult to find, because there was 

no permit requirement or plat that went with the well. T. 164. The driller simply reached an 

agreement with the landowner and started drilling, there being no record made. T. 164-165. 

Wooden derricks were erected on the site. T. 165. The equipment used—oil-and-gas driven 

 6 See pp. 162-164 for more detailed description of Robinson’s past experience.
8

steam engines—was small, as opposed to the large well pads utilized in the Marcellus Shale 

industry. T. 165.

The cable drill had a 12-inch very heavy drill bit, the drill being about 15 feet long. T. 

165. Typically, the wells would go 2,800 to 3,200 feet deep, depending where the coal was at or 

where the gas zone was located. T. 166. If, however, the drillers encountered an issue, they 

would simply skid the rig over 15 feet and begin a new hole with no need for permits. T. 167. 

Over the years such unpermitted skidded holes would be found and plugged. T. 167-168. 

In the 1970s and 1980s, plats provided good information as compared to previously when 

wells were unpermitted with no drawing or records.7 T. 168. In the modern day, handheld GPS 

devices are used so that one can walk up to a latitude/longitude location with the geographic 

coordinate value noted on the drilling permit and get within 10 feet of a platted or permitted well. 

T. 168.

In searching for unpermitted older wells, Consol uses farm line maps or producer maps. 

Such maps were developed by past gas companies such as Carnegie Manufacturers Heat and 

Light, Columbia, and Equitable Gas. T. 169. Gas company employees would go out to farms, 

meet with the landowners, and mark farm line maps with symbols showing the location of wells. 

T. 169. The problem with the older Carnegie/Columbia maps was that they might depict the 

same gas well in different locations. T. 170-171; RX-K. Furthermore, the range that the 

company’s (Carnegie’s) symbol might cover could be up to 1,000 feet. T. 172.

The petition for modification filed by Respondent for Enlow Fork Mine dealt with the 

procedures, practices, and methods for plugging gas wells to be mined through with a continuous 

miner or a longwall. T. 173. It did not specifically address the questions of locating a borehole or 

gas well. T. 173.

Once Consol has obtained maps and plotted them, it scans the hard copy images into an 

autoCAD-type program, scales them, rotates them, and fits them to a farm tract or to a 

quadrangle section. T. 174.

The digital image can be overlayed on Respondent’s § 75.1200 mine drawing. T. 174. A 

search map can be generated that will have the various gas company symbols which, together 

with available aerial imaging, can show where a gas well might be located. T. 175-176; RX-I.

The mapping however is not 100% accurate. “Not found wells” might never be found 

underground. T. 178. Exhibit RX-B was the Enlow Fork approved oil and gas well cut-through 

plan, which was an addendum that was used to spell out the procedure for the mine to follow 

when mining through a gas well area. T. 178-179. 

Robinson outlined the measures taken by Consol to locate wells or boreholes on the 

surface based on his past experiences. T. 179. All available mapping is reviewed; historical 

photographs are examined; the best location to conduct a field reconnaissance or foot search is 

 7 Robinson described “plats” as “basically, like, a property survey.” T. 168.
9

selected; people are sent out to the site and work under the supervision and direction of Matthew 

Ruckle, the project engineer. T. 179, 227.

A map may have five different companies’ symbols. T. 179. If one of the symbols ends 

up a vertical cliff, there is good probability that there was no drilling sitting there, so the area is 

narrowed down. T. 179-180. Aerial photography is used. Topography is looked at; a bench is 

tried to be found. T. 180. Once an area is zeroed in, there is always a metal detector search for 

cut nails, for past drilling, and miscellaneous materials. T. 179-180. A lot of times the material 

detected is old farm scrap and has nothing to do with a gas well. T. 180. If drilling material is 

discovered, the site is evaluated as to whether further excavation is warranted. T. 180. 

Depressions and sinkholes and ground features that don’t quite fit into the topography are noted. 

T. 180.

Exhibit J depicted the area where Respondent’s project engineer and contractors 

conducted their search for the well. T. 181. The type of search conducted for the subject well was 

the type “normally” employed. T. 182. The operator had already mined through three other areas 

that had shown wells believed not to exist (DNFs) and were not ultimately found there. T. 182. 

Given the number of duplicate wells on available farm line and producer maps, finding the actual 

location of wells was difficult. T. 182.

In the past, Consol had worked with the state of Pennsylvania and MSHA to get plans 

approved in order to mine using a longwall and continuous miner above a gas storage field. T. 

182. Due to Consol’s success in locating 32 more wells than the gas storage operator believed to 

have existed, Consol had been asked to train individuals as to how to properly search for wells. 

T. 182-182.

Anytime Consol is unable to locate a DNF, it shows a symbol to alert individuals to be 

watchful. T. 184; RX-B.

Robinson opined that Respondent was improperly cited for violating § 75.1700 in that the 

operator had taken reasonable measures to locate the well, employing methods routinely used for 

such searches. T. 185. This was not a situation where there was a plat that showed the well 

location with a surveyed location, or, even without a surveyed location, a plat that showed 

distances from two corners. A failure to locate in such situations would be the result of 

unreasonable measures. T. 185.

On cross-examination, Robinson opined that a cable tool rig had been used in the well at 

issue. T. 191. In the past, Respondent’s employees had utilized hard copy farm line maps. T. 

192. But when oil and gas came out with digital mapping, farm line maps were digitized and 

Respondent refined the symbols showing gas well locations. T. 192. The red symbol depicted a 

dry hole; the green symbol was also a dry hole; and the blue symbol was a gas well. T. 193; RXI. A second look at the mapping had taken place in late 2017-early 2018 prior to Respondent 

starting the longwall panel. T. 193.
10

According to the operator’s calculations the gas well was estimated to be located in the 

area of No. 71 Shield. T. 197. It was actually intersected at No. 73 Shield. T. 198. The operator 

would not have needed to tear down the private property owner’s house to locate the well. T. 

203. There was, however, a sewage sand mound or septic system where the well was eventually 

located. T. 203. 

Robinson had spoken with the private property owner, who had grown up in the area and 

whose father had owned the neighboring farm. T. 207. She had no knowledge whatsoever of a 

well in the area. T. 207. 

Robert Conner

Robert Conner worked since 2006 as foreman for gas well locating for 18 Karat. T. 209-

210. Over the years he had searched for approximately 1,000 wells and had performed services 

for multiple companies, including Consol, CNX Gas, and Murray Energy Corporation. T. 210. 

On direct examination, Connor testified that he had been contacted by Respondent to 

search for the gas well at issue. T. 210-211. He reviewed a Carnegie Gas map which showed a 

location that an earlier search company had found not to be accurate. T. 211. Conner overlaid the 

old gas map on top of Google Earth. T. 213. He pulled it in as best he could with the old roads 

and property lines; then faded out the old map on top of Google Earth and got a search location 

that was submitted to Respondent. T. 213.

At the selected site, 18 Karat worked a grid with searchers four feet apart, digging up any 

evidence that could be located. T. 214. On March 12, 2018, two searchers spent 10 hours 

searching, and found cable down by a fence. T. 213-215. They also found round nails and some 

modern nails with no rust. T. 213-215. On March 13, 2018, the same two people found part of a 

three way, which was described as “a T,” and round and modern nails. T. 215. On March 14, 

2018, the same searchers again found round and modern nails. T. 216. The property owner said 

there was 10 feet of fill over where 18 Karat was looking for the well, located behind his house, 

going down next to where a fence was at near a pond. T. 216. Conner was uncertain how long 

the pond had been on the property. T. 216. On March 15, 2018, Conner continued to hand-search 

for the well, searching down into the swamp on the pond on the hollow side of the fence. T. 216-

217. A few pieces of molten metal and right-handed cable were located at a depth of four feet in 

the hollow to the left of the pond in a wooden area. T. 217. Locating molten metal is relevant 

because it could be where past drillers dressed tools on old drilling rigs. T. 217. The March 16, 

2018 notes by 18 Karat indicate continued hand searching for well 2019, with a few pieces of 

molten metal found a few inches deep along a creek bank along with a few scattered nails in no 

pattern. T. 217. The lack of pattern was considered significant because in attempting to locate 

wells “there will be a pattern the way the rig sat in there, the derrick fell.” T. 218. No pattern of 

any kind was found. T. 218.

Metal detectors were used because metal was important evidence in locating a well: “you 

can lay out how that rig sat in there to give you direction of which way the hole would be.” T. 

218. Specifically, the metal that is relevant to where the rig sat would be: 16, 18, and 20-inch 

long rig bolts; 3⁄4 inch bolts with hex heads; hex nuts and a couple of washers on them. T. 219. 
11

These items would be about 6 feet apart and “pairs of four the way the rig laid in there for the 

motor house to be bolted onto.” T. 219. Such pattern of residual evidence would indicate the 

location of a well whereas scattered debris and molten metal and nails would not be helpful. T. 

219. 

Exhibit RX-J depicted the area searched by 18 Karat, with a yellow outline indicating the 

area searched and a red outline to indicate the items found. T. 219. 18 Karat employees searched 

with metal detectors in the yellow outlined area and dug in the area of the private property 

owner’s back yard, but found no indicia of a well’s presence. T. 220. 

Shovels were used to do the digging. Shovel digging was a normal practice in attempting 

to locate a well. T. 220. 18 Karat employees used shovels anywhere, including woods and yards. 

T. 220. When, however, searching in a private individual’s back yard, shovels were preferable 

because there are unmarked lines, including gas lines, phone lines, and electronic lines, which 

must be approached with care. T. 221. Shovels were “the common practice” for looking for a 

well. T. 221. Conner remembered 18 Karat employees searching in the third party’s yard. T. 221.

Of the thousand or so wells that Conner had searched for, he had been unable to locate 

approximately 300 of the older wells through field searches. T. 221-222. Of these 300, possibly 9 

wells had been intersected. T. 222. Some of such wells had actually been dug for in the past with 

equipment but with no success. T. 222.

The decision to use heavy equipment is based upon the “reasonable well evidence” 

uncovered by the initial hand search such as fire pit, drilling cable (left-handed) and rig bolts. T. 

223. However, during 18 Karat’s search there was nothing found to suggest that equipment 

should be brought in. T. 223. Conner opined there was no evidence found that warranted 

bringing in additional equipment. T. 223. 18 Karat could have gotten equipment if it had 

requested such. T. 223.

On cross-examination, Conner agreed that the large house and pond depicted on RX-J 

would have required a lot of ground to be moved in the digging and construction of such. T. 224. 

He also agreed that there was an area that had 10 feet of fill that was between the pond and the 

house, included in the red zone of RX-J. T. 224.

Matthew Ruckle

Matthew Ruckle graduated in 2008 majoring in engineering. T. 226. He began working 

for Respondent in May 2005 as a summer intern and started full time in January 2009 as a 

project engineer in such activities as air shaft installation. T. 226. He was laid off for two years,

during which time he worked for 18 Karat as a project manager, estimating and managing jobs, 

surface jobs, and site construction. He returned to Consol in March 2018 as a project engineer. 

He was responsible for gas well searching and maintaining degas boreholes. T. 227. 
12

On direct examination, Ruckle testified that he had reviewed the various searches for gas 

wells associated with the E 30 Longwall. T. 228. Exhibit RX-I contained a drawing showing the 

E 30, the back end of the longwall panel, depicting two wells that had been located and three 

wells that were not located shown as DNFs. The borehole that was intersected and subject of the 

within citation was 2019. T. 228. At some point Ruckle decided that a more extensive search for 

the well should be conducted. T. 228-229. He reviewed all the search records of 2019 located in 

his office. T. 229; RX-C. This file included the search records from Burns Drilling and 18 Karat. 

T. 229. Burns Drilling had found some pipe and some nails but not much more. T. 230. 

Respondent did some research, looking at old producer maps. T. 230. It was felt that 

more searching, a little further to the south, needed to be conducted. T. 230. 18 Karat was 

Respondent’s primary well searching company and was asked to go back out to search for the 

well further to the south. T. 232.

Exhibit RX-I depicted the location of well 2019 moved to the best estimated location 

away from its originally estimated location. T. 231. 

Ruckle reviewed all of Conner’s search reports and was provided with a best estimated 

location with GPS coordinates. T. 234-235. No actual evidence of a well, however, was 

uncovered. T. 239.

It was normal to use metal detectors and shovels in searches. T. 236. If Conner had 

requested heavy equipment, Ruckle would have approved the request. T. 236. 

Exhibit RX-E contained a notification letter sent to MSHA’s district manager by 

Respondent’s mine engineer, stating that the E Longwall would be mining through areas where 

there were five reported wells believed not to exist, including DNF well 2019. T. 237. This 

notification was based upon search records provided by Ruckle. T. 237. Ruckle did not believe 

any of the five wells existed based upon the lack of evidence. T. 238. 

The procedures utilized by Respondent in attempting to locate the well were consistent

with procedures used by Respondent in the past. T. 238. In the past Ruckle had gone out with 

MSHA personnel, including District Manager Riley, to attempt to locate DNF wells and had 

been unsuccessful. T. 238-239.

On cross-examination, Ruckle testified that he had not gone out to the search location 

until after the well was intersected. T. 241. Despite an 18 Karat search note dated March 14, 

2018, indicating there was “10 foot of fill over where the well should be,” Ruckle opined that the 

area could be accurately excavated with a shovel. T. 242-244; RX-C.

On redirect examination, Ruckle testified that 18 Karat notes from March 15, 2018,

indicated that the metal and a right-handed cable were located at 4-foot depth. T. 244. Diggers 

would follow where the evidence led. T. 244.
13

Jonathan Tajc

Jonathan Tajc had a Bachelor of Science degree from Penn State. T. 243. He had worked 

for Respondent as an industrial engineer foreman, assistant mine foreman, and mine engineer. He 

had also worked for the Commonwealth of Pennsylvania Bureau of Mine Safety as a mining 

engineering specialist. T. 246. As a mine engineer, Tajc had experience in plotting the location 

of gas wells. T. 246. His office maintained records such as the letter contained in RX-E. T. 247. 

CONTENTIONS OF THE PARTIES

The Secretary argues that Respondent violated 30 C.F.R. § 75.1700 when it failed to take 

reasonable measures to locate and plug a gas well prior to mining through the E 30 Longwall at 

Enlow Fork Mine. It argues that, given that Respondent had markings on its mine maps 

indicating the potential existence of a DNF well in the area where the gas well was ultimately 

intersected, the Respondent bears the burden of demonstrating that it had taken reasonable 

measures to locate the gas well. Specifically, Respondent’s contractors were negligent in failing 

to further search the gas zone area and to conduct additional digging and excavation with heavy 

equipment in the area.

Respondent initially argues that the intersected borehole referred to on Consol maps as 

“DNF 2019” was not, in fact, a gas well but rather an abandoned “dry hole” and, as such, would 

not be subject to § 75.1700 provisions.8 Assuming the site in question was a gas well, 

Respondent argues that it had, in good faith and with due diligence, followed its MSHA 

approved ventilation plan, including its gas well cut-through plan which dealt with mining

operation near a well believed not to exist. Despite that it had failed to locate the gas well before 

its intersection, Respondent had satisfied § 75.1700’s “reasonable measures” mandate by 

reviewing old farm line and gas producer maps, available photography, and by contracting with 

experienced gas well searchers. Considering the lack of evidence uncovered in the suspected gas 

well area, Respondent’s contractor(s) had not acted unreasonably in using only hand tools and 

shovels for digging and declining to use heavy machinery in its search.

 8 Given the within holding which is wholly dispositive, this contention need not be fully 

addressed. The ALJ does observe that MSHA has not yet promulgated a definition for “gas 

well.” In Sec’y. v Consol, 42 FMSHRC 118 (Jan. 30, 2020) (ALJ), this Court addressed the 

question of whether the Secretary’s interpretation of § 75.1700 should be given controlling 

weight in light of Kisor v. Wilkie, 139 S. Ct. 2400, 2411 (2019). The ALJ further notes that the 

distinction between an abandoned dry hole and an old gas well site becomes increasingly more 

problematic when passing time, decay, and/or property development destroys much of the 

evidentiary indicia distinguishing such. Suffice it to say that the Secretary had presented 

persuasive evidence and compelling arguments (see inter alia SBII, pp 1-2) in support of finding 

DNF to be a “gas well.” If required to resolve this issue, this Court would presently not be 

inclined to find that the Secretary had acted unreasonably in treating the intersected site in 

question as a gas well for § 75.1700 enforcement purposes.
14

ANALYSIS

Issue: Did the Secretary carry its burden of proving that Respondent failed to take reasonable 

measures to locate the cited gas well in violation of § 75.1700?

I. The Secretary bears the burden of proving Respondent’s violation of § 75.1700 oil 

and gas wells.

It is black letter Commission law that the Secretary has the burden of proof in 

establishing each and every element of a citation.9 See also 29 C.F.R. § 2700.63 (b). In his post 

hearing brief, the Secretary attempts to relieve himself of this burden thusly: “because the 

Respondent had all of the records including the mine maps pertaining to this gas well, (it) bears 

the burden of demonstrating that it took reasonable measures to locate the well.” SBI, p. 7. The 

Secretary cites no source or case cite for this bald proposition. Furthermore, this Court has found 

no statutory or appellate case law supporting Secretary’s argument for a shifted burden of 

persuasion as to operators cited under § 75.1700 and declines to do so instantly.10 The burden 

remains with the Secretary to establish a breach of each and every element of § 75.1700, 

including whether Respondent failed to take reasonable measures to locate the gas well sub 

judice.

II. The test to determine whether Respondent had violated § 75.1700 should be the 

reasonably prudent operator standard.

As noted intra, there is no statutory or case law directly on point as to what constitutes 

reasonable measures regarding the location of wells under § 75.1700.11 MSHA to date has not 

promulgated any regulations or specific guidelines for operators to follow in satisfying

§ 75.1700’s reasonable measures mandate. Given no binding case law directly on point, this 

Court holds that the test for determining compliance with § 75.1700’s requirements is a 

reasonably prudent operator standard. Were the steps taken to locate the well, measures which a 

reasonably prudent operator, familiar with the factual circumstances surrounding the hazardous 

condition, including any facts peculiar to the mining industry and considering the protective 

purpose of § 75.1700, would have taken.

 9 Such an evidentiary burden dates back to even ancient times. For example, the Latin maxim, 

“Semper necessitas probandi incumbit ei qui agit.” (“The necessity of proof always lies with the 

person who lays charges.”) See also Luther’s defense at the Diet of Worms that those charging 

heresy bore the burden of presenting specific scriptural proof of his theological errors.

10 As discussed infra, the ALJ finds neither the law nor applicable facts justifying a shifted 

burden. The fact that Respondent had in its possession mapping giving clues to the well’s 

possible location does not in itself warrant a shifting of the burden. This Court was persuaded by 

Respondent’s arguments/testimony that the DNF 2019 symbol was not an exact 

longitude/latitude point, as Secretary implied, but rather a best estimate spanning up to 1,000 

square feet. See also RBI, pp 3-4. 

11 See Secretary’s concession of such at SBI, p. 8.
15

Thus, this Court concludes that the critical question in determining a violation of 

§ 75.1700 is not whether Respondent was ultimately successful in locating the well—nor, 

indeed, whether Respondent could have done more to locate the well.

12 Rather the enquiry must 

focus on whether the actual measures taken by Respondent were sufficiently reasonable, 

considering the totality of the circumstances.

III. The steps taken by the Respondent to locate the gas well were reasonable measures so 

as to satisfy § 75.1700 requirements.

The protective purpose of § 75.1700 is that miners should be shielded from the inherent 

hazards of inundation, ignition, and explosion associated with the intersection of unlocated wells. 

There are all too many abandoned gas and oil wells in Pennsylvania posing hidden dangers to 

miners.13

However, the language and protective purpose of § 75.1700 should not be interpreted in 

such a way that any failure to locate a gas well penetrating a coal bed operates as a per se

violation of this mandatory safety standard.14 Operators should not be placed in a “catch-22” 

situation in which they are deemed not to have taken reasonable measures, if they are 

unsuccessful in ascertaining a particular well’s location.

In his post hearing brief Secretary argues that “gas well DNF was...not the needle in the 

haystack that Respondent attempts to portray.” SBII, p. 3. This Court agrees that finding a needle 

in a haystack is not an apt metaphor for describing an operator’s onus in locating a DNF in 

 12 MSHA’s improper application of § 75.1700 reasonable measures standard is illustrated by 

Inspector Baker’s testimony at T. 104: “I don’t believe they took every effort to locate it (the 

well) outside on this man’s property.”

13 Though the following statistics have no bearing on the instant decision, it should be noted that 

in a recent front-page article titled the “Looming Crisis,” the Pittsburgh Post-Gazette reported 

that there were roughly 200,000 orphan wells dotting Pennsylvania and abandoned by their 

owners over a century of drilling. For most of the time period, fully sealing off expired wells was 

not required. Very little money has been allocated for funding and plugging wells which, at the 

present allocation, would take 17,500 years and cost $6.6 billion (emphasis added). Laura 

Legere, “The Looming Crisis,” Pittsburgh Post-Gazette, Sunday Edition, Vol. 93, No. 248, April 

5, 2020.

14 This is not to say this Court is altogether adverse to the application of strict liability and to the 

finding of per se violations of mandatory safety standards in certain limited circumstances. This 

Court’s decision in The Doe Run Co. v. Sec’y, 40 FMHSRC 1165 (July 20, 2018) (ALJ) is 

presently pending before the Commission. In such, this Court proposed that whenever there is an 

unexplained catastrophic roof collapse killing a miner, a per se violation of the underlying safety 

standard should be found with no necessity for a prudent operator analysis as intra.
16

general nor this Respondent/operator’s onus in particular.15 However, this Court does accept 

Respondent’s essential argument and testimony in support thereof that DNF wells can be often 

quite difficult to locate and that the failure to do so may not necessarily be grounded in the 

failure to take reasonable measures. See inter alia Robinson testimony at T. 164-168.

At hearing, Respondent’s witnesses described the various steps that Respondent had 

taken in attempting to locate DNF wells, including DNF 2019. These steps were succinctly 

summarized in the August 14, 2018 notification to the MSHA district manager (RX-E). These 

measures including “field searching, gas well map reviews, online database searching, aerial 

photograph searching, and API map reviews.” RX-E.

At hearing Robert Conner, foreman of gas well locating for 18 Karat, outlined the 

measures taken in the onsite field search which included using metal detectors, working a grid 

with searchers 4 feet apart, attempting to find evidence indicative of past rigging, like rig bolts in 

a pattern, using shovels for digging. T. 214-220, see also Robinson testimony regarding such.

Conner had long experience in searching for gas wells and characterized the steps taken 

by 18 Karat as standard in the mining industry. T. 111, 182, 220. The Secretary’s witnesses, 

Baker and Williams, while honest and straight forward, did not appear to have the length or 

depth of specific experience in gas well searching possessed by Respondent’s witnesses, 

Robinson and Conner. Baker and Williams offered no persuasive testimony establishing that 

Respondent had somehow departed from the standard of care expected of those in the mining 

industry searching for gas wells.16

At hearing Respondent’s witnesses credibly described the problematic nature of old farm 

line and gas producer maps.17 See inter alia Robinson testimony at T. 164-169. As noted supra, 

this testimony reasonably counters Secretary’s argument that the possession of mine maps shifts 

the burden of proof (SBI, p. 7) or, for that matter, necessarily points to a finding of violation.

At hearing and in its arguments, Secretary further seeks to take the position that if an 

operator searches close to an estimated location of a well and fails to find such, it is derelict in its 

duty. See SBII, p. 4; see also Baker testimony at T. 24 and Williams’ testimony at T. 108. This 

Court declines to impose a “if you come close, you must find” standard for § 75.1700.

 15 Perhaps a more apt metaphor for describing the less daunting task facing mine operators 

charged with locating abandoned wells is the old expression, “finding a black cat in a coal 

cellar.”

16 This Court, of course, recognizes that certain industry practices—“custom and usage”—may 

not necessarily operate as a defense to an alleged safety standard violation. However, it may be 

relevant to determining reasonableness.

17 The dangers posed to miners due to the absence of mapping or inaccurate mapping was 

exemplified in the Quecreek disaster. See also Sec’y v. Musser Engineering, Inc., and PBS 

Coals, Inc., 32 FMSHRC 1257 (Oct. 2010).
17

In support of a § 75.1700 violation the Secretary has also argued that, given notice of a 

10 foot land fill in the area of the private citizen’s residence, Respondent’s decisions to only use 

shovel tools and not to utilize heavy machinery were unreasonable and further motivated by 

economic concerns. SBI, p. 8. This Court, however, found Conner’s explanations as to the look 

of patterned evidence at the digging site and the adequacy of hand shoveling to be arguably 

reasonable.

Further, this Court finds that the existence of, extent of, and location of the alleged 10-

foot land fill in this matter is problematic and should not be accorded great probative or 

substantive weight. See also Respondent’s persuasive arguments on this point at RBI, p. 18 and 

RBII, p. 5. 

As to possible economic considerations motivating Respondent not to bring in heavy 

equipment, this Court is not naïve regarding human cupidity nor unaware that unscrupulous mine 

operators in the past have placed “profits over people.” However, there is nothing in the record to 

support the Secretary’s bald assertion that Consol or its contractors were driven by monetary 

concerns in their decision-making. 

Conner’s testimony was credible that he did not believe that evidence at the scene 

warranted the bringing in of heavy machinery. T. 223. This Court further found Conner to be 

credible in his assertion that he could have gotten heavy machinery had he asked for it. T. 223.

18

Arguably, as Respondent’s primary gas well searcher, 18 Karat would have little to gain in 

failing to use needed equipment to locate gas wells whose intersections could lead to such 

citations as within.

This Court accepts that Respondent may have found the cited gas well—had Respondent 

searched longer, further, and deeper in the gas well zone area and had it chosen to use larger 

machinery. However, this Court nonetheless concludes that the steps taken by Respondent and 

its contractors were sufficiently reasonable under the circumstances, such that the within citation 

was not warranted.

Given the above holding this Court does not find it necessary to go forward with a full 

blown Mathies/Newtown analysis. Suffice it to say that, given the particular facts surrounding 

this alleged violation, including the lack of casing or methane found at the scene, the increased 

ventilation at the longwall surface, the occurrence of the hazard against which the mandatory 

safety standard was directed would have been unlikely.

 18 At hearing Consol’s project engineer, Matthew Ruckle, also essentially corroborated such. 

T. 236.
18

ORDER

It is the ORDER of this Court that Citation No. 9079236 is hereby VACATED and 

DISMISSED.

John Kent Lewis

Administrative Law Judge

Distribution:

Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Dep. of Labor, The Curtis Center, 170 S. 

Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306 epstein.matthew.r@dol.gov

Kenneth J. Polka, CLR, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666 

polka.kenneth@dol.gov

James P. McHugh, Esq., Hardy Pence, 10 Hale St., 4th Floor, P.O. Box 2548, Charleston, WV 

25329 jmchugh@hardypence.com