**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
| 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          |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**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 

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]

** **

**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.

 

            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non-S&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cut-through, 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. 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.

 

            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.

 

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 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 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;RX-I. A second look at the mapping had taken place in late 2017-early 2018prior to Respondent starting the longwall panel. T. 193.

 

            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. 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. 

 

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.

 

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.

**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*.

 

            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 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.

 

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.

 

**ORDER**

 

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

 

 

 

/s/John K. Lewis

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

 

----

[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.

[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]*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.

[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 cross-examination.

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

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

[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 (s*ee 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.

[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.

[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.*

[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).

[18] At hearingConsol’s project engineer, Matthew Ruckle, also essentially corroborated such.T. 236.