**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

 
| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                 Petitioner,

 

                        v.

 

CONSOL  PENNSYLVANIA COAL

  COMPANY,  LLC,

                 Respondent.                                                                 |   |   | CIVIL  PENALTY PROCEEDING

 

 Docket  No. PENN 2021-0074

    A.C.  No. 36-07416-532307

 

 

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

** **

**DECISION AND ORDER**

 

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

                                    Philadelphia,Pennsylvania, for the Petitioner

 

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

                                    Pennsylvania,for the Respondent

 

Before:  JudgeYoung

**SUMMARY**

 

**Citation No. 9203910, 30 C.F.R. §75.904: Failure to properly identify a high-voltage (995-volt) circuit breaker.** Two continuous miner machines wereplugged into adjacent circuit breakers, each marked with the same number. 

Facts                                                                                        p.4 (Slip Op.)

Fact of violation         Affirmed                                             p.5

S&S                             Affirmed                                             p.6

Negligence                  Moderate                                             p.10

Penalty                                    $700                                                    p.10

 

**Citation No. 9204098, 30 C.F.R. §75.370(a)(1): Failure to maintain bleeders safe for travel due to standingwater, violating the approved Ventilation Plan.** Deep water was allowed toaccumulate in travelway used to examine the bleeders. 

Facts                                                                                        p.11

Fact of violation         Affirmed                                             p.13

S&S                             Affirmed                                             p.14

Negligence                  None                                                   p.16

Penalty                                    $150                                                    p.17

 

**I.     ****INTRODUCTION**

 

Thiscase is before me upon petition for assessment of civil penalty filed by theSecretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal MineSafety and Health Act of 

1977, asamended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are two citationsunder section 104(a), issued to Respondent, Consol Pennsylvania Coal Company,LLC (“Consol” or “Respondent”).[1] The partiespresented testimony and documentary evidence at a video conference hearing onSeptember 28–29, 2021, and filed post-hearing briefs.

 

Consolowns and operates the Enlow Fork Mine, located in Greene and Washingtoncounties, Pennsylvania. Jt. Stips. 1, 2, 5; S. Post-Hearing Br. at 3 (Jan. 7,2022) (“S. Br.”). The mine is an underground coal mine and is subject to thejurisdiction of the Mine Act and the Commission. Jt. Stips. 3, 4; S. Br. at 3. CitationNo. 9203910 alleged that Respondent failed to properly identify a 995-voltcircuit breaker, posing a risk of miners inadvertently removing power from thewrong equipment. Citation No. 9204098 alleged that Respondent failed to complywith its approved Ventilation Plan (“Plan”) by permitting the accumulation ofstanding water that prevented safe travel. For reasons set forth below, I **AFFIRM**both citations with their assessed gravity, but I **MODIFY** the degree ofnegligence for Citation No. 9204098 from “moderate” to “none.”

 

**II.        STANDARDS**

 

**A.        Violation**

 

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

 

            Therequirements of a MSHA-approved ventilation plan are enforceable in the samemanner as mandatory safety standards. *See Prairie State Generating Co. v.Sec’y of Lab.*, 792 F.3d 82, 93 (D.C. Cir. 2015) (citing*Zeigler Coal Co.v. Kleppe*, 536 F.2d 398, 406 (D.C. Cir. 1976)) (“*Zeigler* recognizes,as do we, both the regulatory character of mine-specific plans, and theSecretary’s paramount control over the responsibility for mine-specific plans,which ‘must also be approved by the Secretary.’”). Mine operators are generallystrictly liable for mandatory safety standard violations. *See Freeman UnitedCoal Mining Co. v. FMSHRC*, 108 F.3d 358, 361 (D.C. Cir. 1997); *Nally& Hamilton Enters., Inc.*, 33 FMSHRC 1759, 1764 (Aug. 2011).

 

**B.        Gravity**

 

            The“likelihood” contemplated within the assessment of gravity is that of theresulting injury. A severity assessment of “lost workdays or restricted duty”is defined as “[a]ny injury or illness which would cause the injured or illperson to lose one full day of work or more after the day of the injury orillness, or which would cause one full day or more of restricted duty.” 30C.F.R. § 100.3(e) (2022).

 

            Specifically,a gravity evaluation is different from S&S analysis because it assumes theoccurrence of the hazard. *See Consolidation Coal Co.*, 18 FMSHRC 1541,1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonablelikelihood of serious injury,” with gravity inquiry, which focuses on “theeffect of the hazard *if* it occurs”) (emphasis added).

 

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

 

            Aviolation is properly designated as S&S if, “based upon the particularfacts surrounding the violation, there exists a reasonable likelihood that thehazard contributed to will result in an injury or illness of a reasonablyserious nature.” *Mathies Coal Co.*, 6 FMSHRC 1, 3–4 (Jan. 1984) (citing *CementDiv.,**Nat’l Gypsum Co.*, 3 FMSHRC 822, 825 (Apr. 1981)). The fourelements required for an S&S finding are expressed as follows:

 

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

 

*PeabodyMidwest Mining, LLC*,42 FMSHRC 379, 383 (June 2020) (integrating the refinement of the second *Mathies*step in *Newtown Energy, Inc.*, 38 FMSHRC 2033, 2037 (Aug. 2016)).

 

            AnS&S determination must be based on the assumed continuation of normalmining operations. *See Consol Pa. Coal Co.*, 43 FMSHRC 145, 148 (Apr.2021) (citing *U.S. Steel Mining Co.*, 6 FMSHRC 1573, 1574 (Jan. 1984))(“A determination of ‘significant and substantial’ must be based on the factsexisting at the time of issuance and assuming continued normal miningoperations, absent any assumption of abatement or inference that the violativecondition will cease.”).

 

**D.        Negligence**

 

            Judgesmay use a traditional negligence analysis, rather than relying upon Part 100definitions. *Brody Mining, LLC*, 37 FMSHRC 1687, 1701–02 (Aug. 2015)(citing *Jim Walter Res., Inc.*, 36 FMSHRC 1972, 1975 n.4 (Aug. 2014) (“*JWR*”);*Sellersburg Stone Co. v. FMSHRC*, 736 F.2d 1147, 1151–52 (7th Cir. 1984))(Part 100 regulations apply only to the proposal of penalties by MSHA and theSecretary of Labor; under both Commission and court precedent, the regulationsdo not extend to the independent Commission, and thus the MSHA regulations arenot binding in any way on Commission proceedings.”). The reasonable prudentperson standard should be that of one “familiar with the mining industry, therelevant facts, and the protective purposes of the regulation.” *Id.* at1702.

 

**E.        Penalty**

 

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

 

[T]he operator’s history ofprevious violations, the appropriateness of such penalty to the size of thebusiness of the operator charged, whether the operator was negligent, theeffect on the operator’s ability to continue in business, the gravity of theviolation, and the demonstrated good faith of the person charged in attemptingto achieve rapid compliance after notification of a violation.

 

30 U.S.C. § 820(i) (2006).

 

**III.       CITATION NO. 9203910**

 

**A.        FactualFindings**

 

            Thiscitation was issued by Inspector Robert Hutchison on February 17, 2021. Ex.P-1. He assessed the gravity as “reasonably likely,” “lost workdays or restrictedduty,” “S&S,” and one person affected. *Id.* He assessed negligence as“moderate.” *Id.* The inspector stated:

 

The 995 volt circuit breakerservicing the Co. # 25 continuous miner is improperly identified as the Co. #43 continuous miner. This condition could cause a miner to inadvertently removepower from the wrong machine which would cause lost work day injuries includingelectrical shock or burns. Both cables are plugged into the power centerbetween the #4 and #3 entries at 36 crosscut of 2 South Left section(MMU#050-0).

 

*Id.* Two of the circuit breakers weremarked as the #43 continuous miner—one was #43, and the other was actually #25.*See* Tr. Volume I at 59, 131 (Sept. 28, 2021) (“Tr. I”). Mr.Heffelfinger, Consol’s safety inspector, acknowledged that the #25 continuousminer was not identified properly at the top of the breaker. *Id.* at 146.He did state, however, that there was a brass tag affixed to the cable, whereit was plugged into the breaker, that properly identified the cable as that ofthe #25. *Id.*

 

Inhis testimony, the inspector acknowledged this tag, but he also stated that itwas difficult to find or read because it was a “half-inch thick diameter brasstag that did have mud and debris on it” and was located under the plug insteadof on top. *Id.* at 62, 131, 142. Mr. Heffelfinger acknowledged that thebreaker marking and cable tag should match. *Id.* at 148.

 

            The#25 had been brought into the mine between three and four days prior to theinspection. *Id.* at 86, 132. The #25 was not in operation, and there wasno testimony as to whether it was fully assembled or whether the cable wasplugged into the continuous miner itself. *Id.* at 99–100, 133. The #25breaker was not switched on at the time of inspection. *Id.* at 71. The#43 was in operation. *Id.* at 77. The breakers were located next to oneanother. *Id.* at 87. Neither machine was within sight of the load center.*Id.* at 65.

 

Theinspector did not observe damage to cables. *Id.* at 90. However, hedescribed the likely need to fix cables damaged in the course of continuednormal mining operations by making a splice or reentering the cable—both ofwhich require handling exposed conductors. *Id.* at 65–68. He stated thatcables often get damaged by mobile equipment, shuttle cars, or scoops, whenthey are over roadways, and that he generally finds damaged cables about onceper month. *Id.* at 65, 104. These cables carry 995 volts. *Id.* at69. While the inspector acknowledged that people have been killed by suchvoltage, *id.*, he believed the most likely injury would be severe burnsor shock. *Id.* at 75.

 

Mr.Heffelfinger testified that he brought the #25 into the mine a few days prior. *Id.*at 132. He stated that it had not yet been examined. *Id.* at 135, 138. Henoted, and the inspector acknowledged, the existence of “lockout, tagout,tryout” procedures, that the cable would be “blocked” before maintenance, andthat an exam would be conducted before using the #25. *Id.* at 93–94, 138,139. Further, he stated that permissibility exams are done in the normal courseof mining. *Id.* at 149. Section foremen inspect the load center twice perday. *Id.* at 76, 96.

 

**B.        Disposition**

 

**1.         Violation**

 

            Thecited standard states, “Circuit breakers shall be marked for identification.” 30C.F.R. § 75.904 (2022). The Secretary argues that the standard requires *proper*labeling. S. Br. at 12. I find that this is a reasonable interpretation of theregulation.

 

            TheSecretary’s interpretation is reasonable where it is “logically consistent withthe language of the regulation[s] and . . . serves a permissible regulatoryfunction.” *Gen. Elec. Co v. U.S. Env’t Protection Agency*, 53 F.3d 1324,1327 (D.C. Cir. 1995). Here, the Secretary has interpreted this regulation“without the aid or constraint” of rulemaking procedures, so he is entitled todeference to the extent that it has the “power to persuade.” *See Knox CreekCoal Corp. v. Sec’y of Lab.*, 811 F.3d 148, 160 (4th Cir. 2016) (quoting *Skidmorev. Swift & Co.*, 323 U.S. 134, 140 (1944)). I therefore weigh itsthoroughness, validity, and consistency. *See id.*

 

            TheSecretary provided credible testimony that a miner intending to deenergize onepiece of equipment might deenergize another because another circuit breaker wasmarked with the correct equipment’s identification. *See* Tr. I at 72. First,this interpretation is consistent with the language because the regulationrequires the breakers to be marked *for identification*. Plain meaningdictates that breakers should be identified. The only logical reason for such arequirement is to enable the control of power to the specific equipment that aminer intends to operate or maintain.

 

Second,this interpretation serves a permissible regulatory function. The Secretary’sreasoning is valid because the regulation is intended to protect miners—in thiscase, from the danger of electrocution or serious injury.

 

            Ifind that the Secretary proved the violation by a preponderance of theevidence. There were two breakers marked as #43. One connected to the #43, butthe other was for the #25. Therefore, the breaker for the #25 was improperlyidentified. This is sufficient to establish a violation under the strictliability applied to mandatory safety standards.

**2.         Gravity**

**a.         Likelihood**

 

            TheSecretary asserts that the injury is reasonably likely. If the hazard—attemptingto repair a cable that had not been properly deenergized—occurred, it isreasonably likely to result in electrocution or serious injury if a minercontacts bare conductors. I have found that a miner may contact bare conductorswhile repairing cables. I therefore affirm the assessed likelihood.

 

**b.         Severity**

 

            TheSecretary provided credible testimony that contact with uninsulated conductorswhile repairing an energized cable could result in severe burns or shock, oreven death. I find that electric shock or burns could reasonably result in aminer missing at least a full day of work. I affirm the assessed severity.

 

**c.         Numberof Persons Affected**

 

            Theinspector assessed that only one miner would be affected by the hazard. I agreethat, logically, one miner would be repairing the cable to contact exposedconductors. Further, I find it reasonable that another miner would not contactthe cable after finding that the other miner was injured during that activity. Iaffirm the assessed number of persons affected.

 

**3.         S&S**

 

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

** **

**a.         Step 1: The Violationhas Been Established.**

 

            Animproperly marked circuit breaker is sufficient to constitute an underlyingviolation of a mandatory safety standard for the purposes of *Mathies*Step 1. *See supra* Section III.B.1.

 

**b.         Step 2: The violationwas reasonably likely to result in the discrete safety hazard against which theregulation is directed—a miner deenergizing the wrong equipment.**

 

*Mathies* Step 2 is a two-step process: (1)determine the specific hazard the standard is aimed at preventing; and (2)determine whether a reasonable likelihood exists that the hazard against whichthe mandatory standard is directed will occur. *Newtown Energy, Inc.*, 38FMSHRC at 1868. This finding must be based on “the particular facts surroundingthe violation.” *Northshore Mining Co.*, 38 FMSHRC 753, 757 (2016).

 

Here,the standard requires proper identification of circuit breakers to inform minerswhich equipment they are powering or deenergizing. Thus, the hazard is thedeenergizing of the wrong equipment prior to conducting maintenance on theequipment or cable.

 

            TheSecretary provided testimony that two breakers at the power station werelabeled as continuous miner #43 (though one was in fact the #25), that cablesare often damaged during normal mining operations, and that repair requireshandling bare conductors. The Secretary argues that the Commission acknowledgesdanger even when there are no exposed copper conductors. S. Br. at 14–15; *seeHarlan Cumberland Coal Co.*, 20 FMSHRC 1275, 1284–86 (Dec. 1998);*U.S.Steel Mining Co.*, 6 FMSHRC 1573, 1575 (July 1984).

 

            TheSecretary’s reliance on these decisions is misplaced because both casesinvolved exposure to *damaged* cables and different regulatory standards.[2]

 

Nonetheless,I find that the violation was reasonably likely to result in a minerdeenergizing the wrong equipment, risking electric shock. The inspectordescribed the methods of cable repair requiring contact with bare wires. Hecredibly stated that cable damage and subsequent repair are common. 

 

Thefact that another breaker was labeled #43 is sufficient for me to conclude thata miner might reasonably deenergize the wrong cable before conducting a repair.A miner who finds what he is looking for might stop looking and would fail tonotice that there was another breaker marked with the same number. A minermight not look for or see the mismatched tag, especially if it was below thecable and obscured by mud. Therefore, the violation—failure to properlyidentify a breaker—is reasonably likely to result in the discrete safety hazardagainst which the regulation is directed—deenergizing the wrong equipmentbefore repair.

 

            Respondentcites two ALJ cases to assert that Step 2 requires actual—not just theoretical—potentialof the proffered event. These decisions do not control my decision here. As ALJdecisions, they are non-precedential. Further, neither case involved an S&Sevaluation. Both cases instead dealt with imminent danger orders. *Jim WalterRes., Inc.*, 29 FMSHRC 1043, 1043 (Nov. 2007) (ALJ); *Consol of Ky., Inc.*,30 FMSHRC 1, 1 (Jan. 2008) (ALJ).[3] Here, thedangerous condition would be created by deenergizing the wrong equipment beforeconducting repairs. The #43 miner was operating at the time. If a miner neededto repair the cable on the #43 miner—a fairly common occurrence—it isreasonably foreseeable that he could deenergize the mislabeled #25 instead—creatingthe contemplated hazard.

 

            Respondentargues that the Secretary failed to demonstrate that the #25 was energized orwould be without an examination, or that miners would be exposed to anenergized, damaged cable in normal mining operations. Resp’t Post-Hearing Br.at 8 (Jan. 7, 2021) (“Resp’t Br.”). In support, it states: the #25 was broughtunderground only recently; the #25 breaker was not powered; no cables weredamaged; the #43 was identified correctly; and it would have conducted anexamination before use. *Id.*

 

            Therecent installation may support a modification in negligence, but it does notnegate the fact that the #25 is plugged into a breaker marked #43. The properidentification of the #43 adds nothing because the danger is the possibilitythat a miner wanting to deenergize the #43 will deenergize the #25 because itis improperly marked as #43. That Respondent would conduct an exam first relieson miner precaution, which is irrelevant to an S&S analysis. *See Sec’yof Lab. v. Consolidation Coal Co.*, 895 F.3d 113, 118 (D.C. Cir. 2018)

 

Thecontentions that the violative breaker was not powered, and that no cables weredamaged at the time of inspection, are overcome by the requirement to assumethe continuation of normal mining operations. The #25 was already plugged in,and the cables were running to the machine. Therefore, I assume, in normaloperations, that the improperly marked #25 would be energized, and that thecables would require eventual repair from common mining operation damage. *SeeU.S. Steel Mining Co.*, 6 FMSHRC at 1574 (holding that, in the *Mathies*analysis, one “cannot ignore the relevant dynamics of the mining environment orprocesses”).

 

 

**c.         Step 3: It is reasonablylikely that a failure to deenergize the correct equipment would cause aninjury—electrocution.**

** **

*Mathies* Step 3 asks whether the hazard,not the violation itself, is reasonably likely to cause an injury. *MusserEng’g, Inc.*, 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the likelihoodof injury, judges must assume the occurrence of the hazard. *See NewtownEnergy, Inc.*, 38 FMSHRC at 2037.

 

I assume the occurrence of thehazard—a miner conducting repairs on an energized cable because he deenergizedthe wrong [improperly marked] continuous miner at the breaker. The Secretaryprovided undisputed testimony that contact with a live cable during repairscould result in electrocution. I therefore find that the hazard is reasonablylikely to result in an injury.

 

Respondentcorrectly notes that the Commission has held it insufficient that a violation“could” result in an injury. *Wolf Run Mining Co.*, 32 FMSHRC 1669, 1678(Dec. 2010) (remanding for more precise discussion of potential injuries). However,I do not find only that an injury *could* occur. I find that one isreasonably likely to occur during normal mining operations because of theimproperly identified breaker.

 

            Ireject Respondent’s contentions:

 

a)That the #43 was identified properly. Resp’t Br. at 10. While true, the hazardof injury results from the improper marking of the #25 breaker as #43. 

b)That the breakers at issue were next to each other, so that a miner could seeboth and would deenergize both or look at the cable tag to be safe. *Id.* Thisall relies on miner precaution—irrelevant to *Mathies* Step 3. *ConsolidationCoal*, 895 F.3d at 118. 

c)That the #25 was recently brought in and was not energized. Resp’t Br. at 10. Themachine would be energized during continued normal mining operations because itwas brought into the mine to be used in those operations. *See**supra*Section III.B.3.b. 

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

e)Finally, that there were no issues with any of the equipment. *Id.* Iassume the necessity of repairs based on credible inspector testimony and the“relevant dynamics of the mining environment or processes.” *See U.S. SteelMining Co.*, 6 FMSHRC at 1574.

 

**d.         Step 4: It is reasonablylikely that such an injury would be of a reasonably serious nature—severe burnsor shock.**

 

Aninspector’s conclusion that a possible injury is of a reasonably serious naturehas been held sufficient for *Mathies* Step 4. *See Consol Pa. Coal Co.*,43 FMSHRC 145, 149 (Aug. 2021) (finding it sufficient that the inspectorcharacterized the potential injury as “serious” and noted potential injuries). TheCommission also does not require a specific type of injury for it to beconsidered serious. *See S&S Dredging Co.*, 35 FMSHRC 1979, 1981–82(July 2013).

 

Here,the Secretary provided credible, undisputed testimony that that the hazardcould result in severe burns or shock, or even death. Respondent only addressedthe *likelihood* of injury, *see* Resp’t Br. at 9–11, making noassertions about the severity of the injury if it occurred. I find it isreasonably likely that an injury that could include electrocution would be a reasonablyserious injury.

 

**4.         Negligence**

 

Ifind that negligence was properly assessed as “moderate.” The foremen chargedwith inspecting the load center are familiar with the mining industry andrelevant facts. They should have been familiar with the protective purpose oflabeling the breaker properly to identify which equipment it powers. Therefore,I find that a reasonable prudent person in their position should have knownabout the violative condition and acted to remedy it.

 

Respondentclearly could have known of the condition because it provided no rebuttal tothe inspector’s contention that the foreman inspects the load center twice perday.[4]While it is possible that the #25 miner was only brought into the mine withinthe last inspection cycle, it was plugged into a breaker with the wrongmarking, the same as another breaker in that load center, and nobody noticed itduring the installation or subsequent examinations. Further, the existence of asmall tag on the cable with the correct marking does not negate the obviousviolative condition of the more apparent, improper identification on thebreaker.

 

**5.         Penalty**

 

TheSecretary has entered Respondent’s violation history [MSHA Directorate ofAssessments, Assessed Violation History Report] into evidence. *See* Ex.P-6. I have reviewed Respondent’s general and repeat violations, and I findthat the Secretary has properly considered Respondent’s minimal violationhistory in his calculation. I agree that the Secretary has properly evaluatedthe size of the mine in his calculation. The parties have stipulated thatpayment of the penalty will not affect Respondent’s ability to continue inbusiness. Jt. Stip. 6; S. Br. at 2.

 

Theproposed penalty was based, in part, on the negligence [moderate] and gravity[reasonably likely] assessed in the citation. While I affirm the negligence andgravity as assessed, I do find that the operator’s negligence here was at thelow end of the moderate scale due to its proactive adoption of a program, notrequired by the regulations, to “lock-out, tag-out, try-out” equipment. Theinspector acknowledged that he was aware of the program. One cannot rely onthis program, and the miner cooperation and precaution upon which it depends,as an absolute protection against injury. But it seems logical that the programwould reduce the likelihood of injury in these circumstances, and I find thatthe operator should be credited for that.

 

            Thecitation was terminated almost immediately by properly marking the breaker as#25, so the operator rapidly complied upon notification. Thus, Respondentdemonstrated good faith in achieving rapid compliance following citation. Takinginto account both the gravity of the violation—particularly, the S&Sfinding—and the mitigation of that gravity by the “lock-out, tag-out, try-out”initiative, I assess a penalty of $700. 

 

**C.        Conclusion**

 

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

 

**IV.       CITATION NO. 9204098**

 

**A.        FactualFindings**

 

            Thiscitation was issued by Inspector Walter Young on February 8, 2021. Ex. P-3. Heassessed gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,”and one person affected. *Id.* He assessed negligence as “moderate.” *Id.*The description read, in part:

 

The Mine Operator failed to complywith their approved mine Ventilation Plan . . . in that, the perimeter of theBleeder system was not maintained safe for travel. Accumulations of dark,orange, murky, standing water were permitted to accumulate . . . at variouslocations[]. These areas contain tripping hazards in the form of yellow airlines, slick lines, suction hoses, rocks, coal sloughage, crib blocks, rocksand other debris which could not be seen under the surface of the colored water.

 

*Id.* Respondent’s Plan was approved byMSHA on February 26, 2020. Ex. P-5, MSHA0065. Section AA is the provisionRespondent is alleged to have violated, and reads in part:

 

The means for maintaining thebleeder safe for travel will include compressed air lines routed underground,used in conjunction with air pumps to remove water as necessary to permit safetravel through the perimeter bleeder system. . . . Standing water shall bepumped and or drained down below the top of elevated walkways to assure forsafe passage around the perimeter of the bleeder system.

 

Ex. P-5,MSHA0067.

 

            Inbleeder systems measuring several miles, the inspector was only able to enterapproximately 40 feet before having to stop because of “murky,” “dirty darkorange water” that came above his 16-inch boot. Tr. I at 206, 208, 214, 228;Tr. Volume II at 45–46 (Sept. 29, 2021) (“Tr. II”); Ex. P-4, MSHA0018. Theinspector took depth measurements of 1.6 and 1.8 feet by reaching as far intothe bleeder as he could, noting that he also observed fresh water stains up to threefeet high. Tr. I at 208, 211, 217. 

 

Theinspector testified that he could not see below the surface of the water in thetwo inspection areas. *Id.* at 214. Mr. Verbosky, Consol’s safetyinspector, acknowledged that he could not see through the water and would notbe able to see obstacles underneath, *see* Tr. II at 52–53, 65, though Mr.Houchins, Consol’s assistant mine foreman, stated that a lot of the water wasclear, *id.* at 168.

 

            Theinspector said that the bleeders were not maintained to be safe for travel. Tr.I at 170. Tripping hazards associated with the presence of standing waterinclude rip sloughage, rocks, loose crib blocks, suction lines, dischargelines, air lines, slick lines, and generally uneven terrain. *Id.* at 170,197. Possible injuries include slip and fall injuries, strains, sprains,concussions, contusions, and broken bones. *Id.* at 198, 208. He alsonoted the possibility of cellulitis from skin or wound contact withcontaminated water. *Id.* at 208, 288–91. 

 

Whileacknowledging that it was possible to drown in an inch of water, *see id.*at 234, the inspector assessed the most likely severity of the injury to be “lostworkdays or restricted duty” from a slip and fall injury. He also noted thatexaminers normally travel in pairs, but that the practice would not prevent oneperson from tripping. *Id.* at 235.

 

            Thestanding water had no effect on the ventilation. Tr. II at 23, 141; Ex. R-5. Thebleeder is not a place where miners regularly work—it is only traveled byexaminers, and nobody was conducting exams at the time of the inspection. *Id.*at 32, 86. Mr. Baker, Consol’s mine examiner, stated that miners, includingexaminers, are supposed to walk carefully while doing their work. *Id.* at115. Similarly, Mr. Houchins stated that the presence of standing water makesyou walk more carefully. *Id.* at 158, 183.

 

            Multiplebleeders had standing water, at different levels, for six weeks. *See* Tr.I at 188, 190–94; Ex. P-4, MSHA0027, 0030–34. Consol continuously pumped thewater and added equipment—pumps, compressors, discharge lines, sumps—asnecessary. Tr. II at 35, 63–64, 89, 112, 136, 164. Mr. Verbosky testified thatwater had been pumped down below the cited levels at dates prior to theinspection. *Id.* at 40. Mr. Baker testified that water had previouslybeen pumped down to ankle depth or lower (calling it a “minimum level”), butthat unforeseen circumstances and problems with pumps contributed to the citedstanding water. *Id.* at 104, 121; *see also* Tr. I at 265–68; Ex. P-4,MSHA0027–30.

 

            Respondentexpended significant effort to remove water. Messrs. Verbosky and Houchinstestified about installing multiple compressors on the surface. *Id.* at63, 136, 161. They each also noted the creation of sumps to move water. *Id.*at 72–73, 136, 137, 176–77. Mr. Tajc, Consol’s ventilation engineer, and Mr.Houchins each described carrying new or repaired pumps several miles to abatethe accumulation. *Id.* at 93, 146, 151, 152–53, 154.

 

            Witnessesalso described compounding problems. First, the inspector acknowledged that thebleeders in this mine were predominantly very wet, and that there is water inthe bleeders all the time that is impossible to remove. *See* Tr. I at 170,270. There were continuous equipment failures, but Respondent replaced,repaired, and installed additional pumps. *See id.* at 229**–**31, 255**–**567;Ex. P-4, MSHA0007**–**08. Finally, a water pipe broke around the time of thecitation, and Mr. Houchins attested to previously changing broken pipes. *See*Tr. II at 114, 146.

**B.        Disposition**

**1.         Violation**

 

            Thecited standard requires development of and compliance with an approved ventilationplan. 30 C.F.R. § 75.370(a)(1) (2022). Required contents include the means ofmaintaining bleeders free of standing water. *See id.* § 75.371(aa) (2014).

 

Therequirements of a MSHA-approved ventilation plan are treated as mandatory safetystandards for the purposes of inspection. The cited standard requires theoperator to follow the contents of the approved plan. The approved planrequired pumping to remove standing water specifically to make travel safe. *See**supra* Section IV.A.; Ex. P-5, MSHA0067.

 

            Respondentasserts that there is no violation because it complied with the Plan, stating,“[N]owhere in the mine’s ventilation plan does it state that the mere presenceof standing water [of] any depth or color is a violation.” Resp’t Br. at 23. Respondentargues that because the Plan “does not establish any criteria for when acertain depth or color of water constitutes a violation,” it lacked notice ofthe criteria the inspector used to assess the violation. *Id.* at 27.

 

            ThePlan requirements are enforceable as mandatory safety standards. Respondent wasnot without notice of the applicable standard. First, precedent provides thatsuch a violation and corresponding S&S designation have been affirmedagainst this operator. *See Consol Pa. Coal Co.*, 39 FMSHRC 1893, 1899(Oct. 2017) (“Consol does not contest the finding that the accumulations ofwater violated the ventilation plan’s requirement that bleeders be maintainedsafe for travel, thus satisfying the first element of the *Mathies* test.”).

 

Second,per the *Skidmore* standards, I am persuaded that the Secretary’sinterpretation of the regulation—that a violation occurs when standing water isat a depth and darkness that obscures possible obstacles—is reasonable. First,this interpretation is consistent with the regulation’s language requiring theremoval of standing water to ensure safe travel. *See* Ex. P-5, MSHA0067. Plainlanguage dictates that safe travel is hindered by the presence of standingwater. This is due to the presence of obstacles obscured from view. 

 

Second,this interpretation serves a permissible regulatory function. The Secretary’sreasoning is valid because the regulation is intended to protect miners—in thiscase, from slip and fall hazards.

 

Ifind that the Secretary proved the violation by a preponderance of theevidence. Standing water existed in the violative bleeders. The water wentabove the inspector’s boots even before deeper points in the water. Testimonyfrom the inspector *and* Consol employees demonstrated that the water was“murky” and darkly colored to the point that they could not see obstacles underthe water. This is sufficient for a violation under the strict liability formandatory safety standards.

**2.         Gravity**

**a.         Likelihood**

 

            TheSecretary asserts that the injury is reasonably likely. If the hazard—inabilityto see obstacles while traveling through standing water—occurred, it isreasonably likely to result in tripping and falling. I affirm the assessedlikelihood.

 

**b.         Severity**

 

            TheSecretary provided credible testimony that tripping over an obscured obstaclewould result in a sprain, broken bone, or head injury. I find that such aninjury would reasonably result in a miner missing at least a full day of work. Iaffirm the assessed severity.

 

**c.         Numberof Persons Affected**

 

            Theinspector assessed that only one miner would be affected by the hazard. I findthis reasonable because only examiners and inspectors travel the bleedersystems. Further, while examiners usually do this in pairs, it is likely thatone would see the other fall and avoid the hazard. I affirm the assessed numberof persons affected.

 

**3.         S&S**

 

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

 

**a.         Step1: The violation has been established.**

 

Thefailure to keep a bleeder clear of standing water that obscures fall hazards issufficient to constitute an underlying violation of a mandatory safety standardfor the purposes of *Mathies* Step 1. *See supra* Section IV.B.1.

 

TheCommission has affirmed a judge’s S&S finding against this operator insufficiently similar circumstances. *See Consol Pa. Coal Co.*, 39 FMSHRC at1901. The facts in that case are almost identical to those here. In that case,the same inspector cited Consol for a violation of section 75.370(a)(1) becausewater was taller than his 18-inch boot, extended over a large area, wasdiscolored, and contained tripping hazards. *Id.* at 1897. I find that theremaining *Mathies* factors were also established by a preponderance ofthe evidence.

 

**b.         Step 2: The violationwas reasonably likely to result in the discrete safety hazard against which theregulation is directed—inability to travel safely because of obscured obstacles.**

 

Unsafetravel is the discrete safety hazard against which the Plan’s violatedprovision intended to protect. I find the inspector’s description of the depthand color of the water credible. Even accepting Mr. Houchins’ statement that alot of clear water existed, that fact could not negate the presence, in otherlocations, of deep and “dark, orange, murky, standing water” as cited.

Further,the description mirrors the violative conditions already held to be sufficientfor Step 2. In the previous similar Consol case, the Commission accepted theinspector’s explanation that there were uneven floors and debris, that somewater was so murky that a miner could not see his feet, and that it wasreasonably likely that a miner would trip and fall walking through that hazard.*Consol Pa. Coal Co.*, 39 FMSHRC at 1899.

 

TheCommission also expressly found that “[t]he requirement of a safe travelway isinextricably intertwined with the ventilation plan requirements of section75.370.” *Id.* at 1900 (acknowledging that examiners are required totravel bleeders). This negates a defense that miners do not work in the area,because examiners are required to walk the bleeders in the course of theirwork, and it is the operator’s duty to ensure that they may travel theresafely.

 

Itis reasonably likely that a miner working in the area would not be able to seeobstacles while traveling through the violative bleeders. Logic dictates that aperson might reasonably trip over such an obstacle or unknown terrain and fall,or that the miner might step on or into an unseen obstacle, leading to a footor leg injury. This possibility is sufficient to meet the requirement for Step2. Therefore, the violation—failure to maintain bleeders free of standing water—isreasonably likely to result in the discrete safety hazard against which theregulation is directed.

 

**c.         Step 3: It is reasonablylikely that inability to see obstacles in the standing water would result in aninjury.**

 

At this stage, the hazard caused bythe inability to see obstacles in standing water has been established. For thereasons below, I find that the evidence establishes a trip, stumble, or falldue to obscured obstacles is reasonably likely to result in an injury.

 

            Basedon similar facts, the Commission has credited competent testimony that a minerwho trips and falls is, “at a minimum, reasonably likely to suffer reasonablyserious injuries such as broken bones.” *Consol Pa. Coal Co.*, 39 FMSHRCat 1900. It is sufficient here that the inspector credibly testified thatindividuals could trip over many hidden obstacles in the murky, standing water,resulting in sprains, broken bones, or concussions. This testimony wasbolstered by the fact that Mr. Verbosky acknowledged that there were places atwhich he could not see beneath the water’s surface and would not be able to seeobstacles.

 

            Ireject Respondent’s assertions to the contrary. First, the operator contends thatwater in the bleeders never impeded or affected the ventilation. Resp’t Br. at34. This is irrelevant to the particular provision of the Plan that requiresremoval of standing water to permit safe travel.

 

Second,the operator argues that examiners are trained to walk through water in ableeder cautiously. *Id.* at 34–35. Mr. Baker and Mr. Houchins testifiedto the caution employed in traveling the bleeders to take ventilation readingsand facilitate water removal. This testimony is irrelevant, however, because theCommission has stated that miner precaution is not a defense in a Step 3analysis. *See Consol Pa. Coal Co.*, 39 FMSHRC at 1900–01 (quoting *EagleNest, Inc.*, 14 FMSHRC 1119, 1123 (July 1992)) (“[T]he exercise of cautionis not an element in determining the likelihood of injury once the reasonablelikelihood of the occurrence of the hazard is established, because ‘[w]hileminers should, of course, work cautiously, that admonition does not lessen theresponsibility of operators, under the Mine Act, to prevent unsafe workingconditions.’”).

 

**d.         Step 4: It is reasonablylikely that such an injury would be of a reasonably serious nature—brokenbones, sprains, or concussions.**

 

Aninspector’s assessment of an injury as reasonably serious has generally been accepted.*See supra* Section III.B.3.d. Here, the Secretary has provided credibletestimony that falling over obscured obstacles in standing water can result instrains, sprains, concussions, contusions, broken bones, and even death fromdrowning.

 

Respondentmostly addresses the *likelihood* of injury. *See* Resp’t Br. at 34–36.Most relevant, Respondent contests the inspector’s basis for his testimony thatthere are also hazards associated with the presence of contaminants that couldcause cellulitis if the water contacted existing skin wounds. I need notaddress this, however, because it is sufficient for Step 4 that a trip,stumble, or fall over obstacles obscured by standing water would lead to thereasonably serious injuries cited by the inspector, and by the Commission andits judges in similar cases.

 

**4.         Negligence**

 

Ifind that negligence was improperly assessed as “moderate.” This is supportedunder a reasonable prudent person standard specific to mine operators. Respondentis familiar with the mining industry and relevant facts, and it has explicitfamiliarity with the protective purpose of this particular regulation. *Seesupra* Section IV.B.3.a. (noting that Respondent’s similar violation hasbeen affirmed as S&S by the Commission within the last five years). Therefore,I find that a reasonable prudent person in Respondent’s position should haveknown about the violative condition.

 

            Theoperator knew of the violative condition, but I find that the operator conductedevery reasonably expected action to abate the standing water condition, even inthe face of compounding problems. The Commission has affirmed a finding of nonegligence where the Secretary failed to describe any actions not taken to meetthe standard of care. *See JWR*, 36 FMSHRC at 1977. There, the Commissionfound no failure to act, noting that the inspector explained the citation wasissued because “MSHA believed there was negligence and JWR ‘did not doeverything [it] could’ to see that the contractor was following regulations.” *Id.*

 

Here,the inspector acknowledged that Respondent implemented all means of removingwater, noting that so long as all the equipment continued to run, those methodswould have been sufficient. Tr. I at 274. He stated that the measures wereclearly insufficient because everything should not have been failing at once. *Id.*at 238. 

 

Thisis similar to *JWR* because no specific failed actions were described. Aswith the broad failure to “do everything [it] could,” the Secretary hereasserts that the failure of the measures taken equals negligence. I disagree.

 

Whilethe presence of standing water existed for six weeks, the evidence demonstratesthat considerable work was done to pump the water, that the number and severityof violative areas decreased over time, and that water was often pumped toacceptable levels before recurrence. 

 

Thiswas no small feat under the circumstances. Employees hand-carried replacementwater pumps miles to remove water. Respondent installed more compressors whenthe existing were insufficient, and it built sumps to facilitate removal insteps. I find it noteworthy that Mr. Houchins, the assistant mine foreman, waspersonally involved in extraordinary efforts to correct the problem. *See*Tr. II at 146–54; Ex. R-6, CONSOL 022.

 

Numerouscompounding problems also existed. Respondent dealt with constant wetconditions, broken pumps, and broken water pipes adding to the naturalaccumulation. It was reasonable to progressively address the problem asattempts proved inadequate, and there was no evidence that the operator wasinsufficiently focused on the problem. *See* Tr. I at 254–57; Tr. II at101–06, 115–16, 135–37, 146; Ex. P-4, MSHA0037–40; Ex. R-5, 6; *see also* Resp’tBr. at 38. Indeed, the inspector conceded that every corrective measure used tolower the water to acceptable levels had already been implemented by theoperator before the inspection. *See* Tr. I at 200–01, 241–42, 274; *seealso* Resp’t Br. at 38.

 

            TheSecretary argues that grossly inadequate actions should not be consideredmitigating circumstances. *See* S. Br. at 18; *Maple Creek Mining, Inc.*,26 FMSHRC 539, 553 (June 2004) (ALJ), *aff’d in part & rev’d in part onother grounds*, 27 FMSHRC 555 (Aug. 2005). There, the judge affirmed thenegligence finding because she found that the pumping conducted was “grosslyinadequate.” 26 FMSHRC at 553. The Commission affirmed her negligence finding,agreeing that the testimony indicated a “lack of seriousness” on the operator’spart with respect to water accumulation in an escapeway. 27 FMSHRC at 566.

 

Acceptingthe Secretary’s contention, I find that the record in this case does not supporta lack of seriousness on Respondent’s part. While previously inadequate, themeasures employed made bleeder travel safe intermittently, and Respondent madecontinuous efforts, including the addition of a surface pump, before theinspection cited the violation. A senior mine manager was personally involvedin these extensive efforts. The facts here are thus clearly distinguishable. Forthe above reasons, I reduce the negligence finding from “moderate” to “none.”

 

**5.         Penalty**

 

            Ihave previously recognized the Secretary’s proper consideration of theoperator’s business size and ability to continue in business. *See supra*Section III.B.5. These Section 110(i) considerations remain the same here.

 

Respondent’shistory of violations is reflected in Exhibit P-6. Its history consists of sixrepeat violations during the inspection period. Accordingly, this factor hasalready been properly considered and is of no consequence in my decision tomodify this assessed penalty.

 

Iaffirm the violation’s gravity as assessed. I found that injury is reasonablylikely, is likely to result in lost workdays or restricted duty, is S&S, andwould affect one person. Accordingly, this factor did not affect my decision toreduce the penalty.

 

Followingthe citation, Respondent pumped the accumulations of water down and made thearea safe for travel within nine days. Considering this fact with itsdemonstrated continuous mitigation, I find that the operator demonstrated goodfaith in attempting to achieve rapid compliance after notification.

 

            Theproposed penalty was based, in part, on the negligence assessed in thecitation. Because I find that a reduction in negligence is warranted, *seesupra* Section IV.B.4., I also find that a penalty reduction is appropriate.The proposed penalty was $674.00, based in part on the Secretary’s finding ofmoderate negligence. Because I find that the operator was not negligent, I assessa penalty of $150.00.

 

**C.        Conclusion**

 

            Iaffirm the citation and gravity. I find a reduction in negligence from “moderate”to “none.” I therefore assess a penalty of $150.00 in accordance with the modification.

 

**V.   ****CONCLUSION**

 

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

 

Itis also **ORDERED** that Citation No. 9204098 be **AFFIRMED** with theassessed gravity, and that the level of negligence be **MODIFIED** from “moderate”to “none.”

 

Finally, it is **ORDERED** thatthe Respondent pay the Secretary of Labor the assessed penalty of **$850.00**within 30 days of the date of this decision.[5]

 

 

 

 

/s/Michael G. Young

Michael G. Young

Administrative Law Judge

 

 

 

Distribution(First Class Mail and email):

 

Ryan M.Kooi, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street, MailstopSOL/22, Philadelphia, PA 19103, kooi.ryan.m@dol.gov

 

Patrick W.Dennison, Esq., Fisher & Phillips LLP, Six PPG Place, Suite 830,Pittsburgh, PA 15222, pdennison@fisherphillips.com

 

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

----

[1] This docketincluded ten section 104(a) citations. Eight were settled by the parties andapproved prior to hearing. *See* Decision Approving Partial Settlement at3 (Oct. 26, 2021).

[2]The operator in *U.S. Steel MiningCo.* failed to fully cover a gash in a cable, but the wires inside still hadinsulation apparently intact. 6 FMSHRC at 1573. The Commission affirmed thejudge’s S&S finding because the lack of both layers was sufficient to putminers at risk of electric shock. *Id.* at 1575.

 

            TheCommission in *Harlan Cumberland Coal Co.* affirmed a judge’s S&Sfinding where a splice was not completely insulated. 20 FMSHRC at 1285, 1286. TheCommission rejected the argument that reasonable likelihood of injury could notbe established where there were not exposed copper leads. *Id.* at 1286. Bothcases are inapposite to my evaluation here. There is no cable damage allegedfor me to apply the Commission’s finding that danger exists because of theprotection degradation and lack of knowledge about the integrity of theinternal wire insulation.

 

[3]Imminent danger orders presume thatif normal mining continues, there will be a danger of severe injury or deathfrom a known hazard it can be abated. Here, we must determine whether a hazardnot yet present may develop, and we presume that it will not be discovered orabated if so. But even if I applied the standard suggested by respondent, thecase here is distinguishable.

 

            Theinspector in *Jim Walter Resources, Inc.* improperly assumed a possibleroof fall as a potential ignition source. 29 FMSHRC at 1045 (failing to noteany indications of imminent roof fall or other roof hazards). This was,therefore, pure conjecture. *Id.* at 1048. Where it is incorrect to assumea roof fall, the standard here is logically aimed at ensuring equipment can beproperly deenergized, which is necessary for movement or maintenance of theequipment or cables. I have found the reasonable likelihood of damage to thecables, and the necessity for deenergizing them for repair, to be supported bycredible testimony about the conditions and practices in the mine environment.

 

            Awithdrawal order was issued in *Consol of Kentucky, Inc.* because ofspeculation that electrical equipment and cables *could* be left in thearea as an ignition source. 30 FMSHRC at 1, 6, 7 (noting no credible evidencethat such equipment was left in the area, making ignition, at best, atheoretical possibility). A judge cannot assume the presence of an ignitionsource that is not established as present or imminent when reviewing animminent danger order, but may find that conditions arising in the continuanceof normal mining operations may result in the emergence of a hazard in thefuture.

[4] It is somewhatironic that the operator asserts that a miner would have noted and avoided thehazard, yet a foreman charged under the Act with the responsibility ofidentifying hazardous conditions failed to do so in this case. This is not acriticism of the foreman, but an observation on the dangers of confirmation orother biases and the possible effect of time and other pressures anddistractions on miners working in a challenging, dynamic undergroundenvironment. 

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