**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 2021-0084

    A.C.  No. 36-07230-534033

 

 

    Mine:  Bailey Mine        |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

**AMENDED DECISION AND ORDER**[1]****

 

Appearances:              MatthewR. Epstein, Office of the Solicitor, U.S. Department of Labor,

                                    Philadelphia,Pennsylvania, for the Petitioner

 

                                    KennethPolka, CLR, U.S. Department of Labor, MSHA, Mt. Pleasant,

                                    Pennsylvania,for the Petitioner

 

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

                                    Pennsylvania,for the Respondent

 

Before:  JudgeYoung

 

**SUMMARY**

 

**Citation No. 9204245, 30 C.F.R. §75.1725(a): Failure to maintain machinery in safe operating condition.** A horizontal keeper pin, used toretain a vertical breakaway (“shear”) pin, was missing from an operational headgateshield.

Facts                                                                                        p.4 (Slip Op.)

Fact of violation         Affirmed                                             p.5

S&S                             Affirmed                                             p.8

Negligence                  Low                                                     p.12

Penalty                                    $383.00                                               p.12

 

**Citation No. 9204250, 30 C.F.R. § 75.503:Failure to maintain electrical face equipment in permissible condition.** 120-volt area light globes werecracked on an operational continuous miner located in a crosscut.

Facts                                                                                        p.13

Fact of violation         Affirmed                                             p.14

S&S                             Affirmed                                             p.15

Negligence                  Low                                                     p.18

Penalty                                    $355.00                                               p.19

** **

**Citation No. 9204257, 30 C.F.R. §75.1200-1(d): Failure to plot a drill hole that penetrated the coalbed beingmined.** Operator hadnot accurately marked an alleged gas well through which it inadvertently cut.

Facts                                                                                        p.19

Fact of violation         Affirmed                                             p.20

Negligence                  None                                                   p.21

Penalty                                    $100                                                    p.21

 

**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 three citations under section 104(a), issued to Respondent,Consol Pennsylvania Coal Company, LLC (“Consol” or “Respondent”).[2]The parties presented testimony and documentary evidence at a video conferencehearing on February 1, 2022, and filed post-hearing briefs.

 

Consolowns and operates the Bailey Mine, located in Greene and Washington counties,Pennsylvania. Jt. Stips. 1, 2; S. Post-Hr’g Br. at 1, 2 (Apr. 13, 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 1–2. CitationNo. 9204245 alleged that Respondent failed to ensure the presence of a keeperpin, risking a gate shield pin becoming a projectile. Citation No. 9204250alleged that Respondent failed to maintain 120-volt area light globes inpermissible condition, risking methane ignition. Citation No. 9204257 allegedthat Respondent failed to accurately plot a drill hole on its mine map. Forreasons set forth below, I **AFFIRM** all three citations. I **MODIFY**the degree of negligence for Citation No. 9204257 from “low” 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., Inc.*, 28 FMSHRC 983, 992 (Dec. 2006);*RAG Cumberland Res. Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000). Mineoperators are generally strictly liable for mandatory safety standardviolations. *See Freeman United Coal Mining Co. v. FMSHRC*, 108 F.3d 358,361 (D.C. Cir. 1997); *Nally & Hamilton Enters., Inc.*, 33 FMSHRC1759, 1764 (Aug. 2011).

 

**B.        Gravity**

 

            Thelikelihood contemplated is that of the expected resulting injury. The severityevaluation 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).

 

TheSecretary defines a severity assessment of “lost workdays or restricted duty”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).[3]

 

**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); *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 reasonably prudent personstandard should be that of one “familiar with the mining industry, the relevantfacts, and the protective purposes of the regulation.” *Brody Mining, LLC*,37 FMSHRC 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. 9204245**

 

**A.        FactualFindings**

 

            Thiscitation was issued by Inspector Walter Young on March 1, 2021. Ex. GX-1, DOL001. He assessed the gravity as “reasonably likely,” “lost workdays orrestricted duty,” “S&S,” and one person affected. *Id.* He assessednegligence as “low.” *Id.* The description read:

 

The Operator failed to maintain thecompany number 3 gate shield located on the 8L Longwall Working Section (006-0MMU), inby the number 27 crosscut in safe operating condition. The HorizontalKeeper Pin to retain the vertical (breakaway) pin in place was missing. Thiscondition will permit the vertical breakaway pin or pieces of the verticalbreakaway pin to become airborne and injury [sic] person when its fails. Multiplepersons are in the area when the shearer cuts out at the headgate and duringtimes when the headgate pan line is pushed. The Operator immediately removedthe shield from service until the condition could be corrected.

 

*Id.* While taking a methane readingduring a spot inspection, Inspector Young noticed that a horizontal keeper pinwas missing from the clevis[4] on a headgateshield. Tr. 31, 32. Gate shields have more tonnage capacity than line shieldsand exert more than 30 tons of pressure. *Id.* at 38, 41. He described thepurpose of the pin as keeping the vertical shear pin in place if it breaks as

 

designed,enabling it to safely fall out the bottom of the clevis. *Id.* at 33, 36; *see*Ex. GX-3, DOL 021. Shear pins break and need to be replaced frequently. Tr. 47.[5]

 

            InspectorYoung; Justin Jones, Consol’s former safety inspector;and James Denham, its maintenance supervisor, all acknowledged that thevertical shear pin is intended to break at designated points to protect thewhole shield system. *See id.* at 44, 52, 107–08, 142; Ex. GX-2, DOL 020. InspectorYoung concluded that a shear pin can work its way up out of the clevis underpressure from shield operation, and without the keeper pin, it can become aprojectile. Tr. 33–34, 42. He testified that he personally observed a minerinjured—he suffered a face laceration—by such occurrence at a headgate, andthat others have been hit without injury. *Id.* at 42.

 

            Messrs.Jones and Denham contend that the shear pins only break under adverseconditions—shield twisted or hung up on a rock, uneven bottoms, or muddy conditions.*Id.* at 109, 144. Neither has seen or heard of a broken shear pinbecoming a projectile. *Id.* at 109, 110, 111, 146–47. Neither are awareof any injury reports describing such an occurrence, and Mr. Jones testifiedthat he searched and found none since 2007. *Id.* at 111, 113, 147.

 

            Messrs.Jones and Denham testified, and Inspector Young acknowledged, that minerstypically operate these shields manually from two shields away—seven-to-elevenfeet from the possible pin hazard. *Id.* at 68, 116, 149. Inspector Youngcontended that a miner could be struck within eight feet, enabling injuriessuch as lacerations or eye injuries. *Id.* at 66. He also described thearea surrounding gate shields as a transition area—a walkway where many peoplestand while operating the shields. *Id.* at 42, 45.

 

**B.        Disposition**

 

**1.         Violation**

 

            Thecited standard states, “Mobile and stationary machinery and equipment shall bemaintained in safe operating condition and machinery or equipment in unsafecondition shall be removed from service immediately.” 30 C.F.R. § 75.1725(a)(2022). The Secretary argues the machinery was not maintained in safe operatingcondition because Respondent failed to safely secure the shear pin. S. Br. at7. Respondent, however, argues the missing keeper pin does not itself make themachinery unsafe. Resp’t’s Post-Hr’g Br. at 5 (Apr. 13, 2022) (“Resp’t Br.”). Itrefers to several other standards, argued as comparable to the cited standard,to support its assertion. The cited cases, however, are either inapposite orunnecessary to the decision here.

 

First,Respondent asserts that “more than mere presence of a condition [is required]to constitute a violation despite strict liability.” *Id.* The comparedprovisions are significantly different. Section 75.323 requires ventilationsystem adjustments or work stoppages when a stated level of methane is present.*See* 30 C.F.R. § 75.323(b)(1)(ii)–(iii) (2022); Resp’t Br. at 5 n.3. Thestandard here does have a similar mitigating action requirement, but it *also*requires that machinery be maintained in safe operating condition—it does notonly require action when an unsafe operating condition exists.[6]The provision and cited cases are, therefore, inapposite to my decision here.

 

            Next,Respondent compares the cited standard with Section 56.11001 to argue that aviolation does not occur simply because an unsafe condition exists. *See*Resp’t Br. at 6. First, a Section 56.11001 violation does in fact occur wherean unsafe condition exists, and the cited cases do not support contention tothe contrary.[7] Theauthority, if applied to a Section 75.1725 violation, would actually support aviolation finding where the Secretary demonstrates an improper method ofmaintaining machinery—e.g., not having all the components present andserviceable. This authority is, therefore, inapposite to my decision here.

 

            Finally,Respondent cites multiple ALJ decisions on Section 75.202(a) [roof fallprotection] to argue that the provision here should be analyzed as aperformance-based standard—requiring evaluation of the reasonableness of theoperator’s efforts. *See id.* These decisions do not control my decisionhere. More importantly, they are unnecessary because there is Commissionprecedent that directly supports the evaluation of “unsafe operating condition”based on a reasonably prudent person standard.

 

            TheCommission has established that the standard for a Section 75.1725(a) violationis whether a reasonably prudent person would recognize the hazard, stating:

 

[I]n deciding whether machinery orequipment is in an unsafe operating condition, the alleged violative conditionis measured against the standard of whether a reasonably prudent personfamiliar with the factual circumstances surrounding the allegedly hazardouscondition, including any facts peculiar to the mining industry, would recognizea hazard warranting corrective action within the purview of the applicableregulation.

 

*SpartanMining Co.*, 30FMSHRC at 711 (citing *Ala. By-Prods. Corp.*, 4 FMSHRC 2128, 2129 (Dec.1982)).

 

TheCommission has affirmed a violation of this standard for missing components. *SeeMartinka Coal Co.*, 15 FMSHRC 2452, 2456 (Dec. 1993) (affirming a Section75.1725(a) violation for missing belt rollers where substantial evidence fromtwo witnesses showed the components were missing). The Commission has alsofound a violation of another unsafe condition standard by comparing it to theidentical language in Section 75.1725(a). *See So. Ohio Coal Co.*, 13FMSHRC 912, 915–16, 916 n.2 (June 1991) (quoting *Ala. By-Prods. Corp.*, 4FMSHRC at 2129) (“Substantial evidence supports the judge’s finding that thetwo broken track pads presented an unsafe condition.”).

 

            In*Martinka Coal Co.*, a belt structure was missing rollers, causing thebelt to rub against the structure. 15 FMSHRC at 2456. The Commission affirmedthe violation because of the presence of combustible accumulations and anignition source. *Id.* In *So. Ohio Coal Co.*, the Commission foundit sufficient that the inspector and operators testified that thecondition—broken track pads—was unsafe. 13 FMSHRC at 916. It concluded that“safe operating condition” means that a machine can be used safely by miners. *Id.*at 915.

 

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

 

            Here,the circumstances are sufficiently similar. The headgate shield clevis wasmissing a component—the horizontal keeper pin. The Secretary has presentedcredible evidence that the shear pins, which are designed to break, have beenprojected from the clevis upon breaking. The inspector noted one known injurywhere he was present and multiple reports from other miners of the hazardoccurring without causing injury.

 

            Respondentchallenges an unsafe finding by arguing that it is unlikely that the pin wouldbe projected. *See* Resp’t Br. at 6–7. Respondent borrows from its S&Sargument a further assertion that an injury is unlikely because of likely minerdistance from the hazard and lack of reports about injuries from projectileshear pins. *Id.* at 7–8.

 

            Ifind that Inspector Young’s testimony is credible and reject the operator’s contentions.Respondent attempted to rebut the noted occurrence with testimony from Mr.Jones that he could not find any such reports going back to 2007. Tr. 111. InspectorYoung, however, has been a MSHA inspector since 2006. *Id.* at 24. Thus,the event, which occurred while he was a foreman, *id.* at 61, would haveoccurred prior to the earliest year checked by Respondent.

 

            Insummary, the machinery was missing a component. That component is intended toprevent the shear pin from moving upward out of the clevis. There is credibletestimony that shear pins can move upward and can be projected when brokenunder heavy pressure. I need not address here whether there is a confluence offactors making an injury reasonably likely. It is sufficient for purposes ofthe violation finding that a dangerous condition could be created by use of thecited machinery with a missing component. I therefore affirm the violation.

**2.         Gravity**

**a.         Likelihood**

 

            TheSecretary asserts that the hazard is reasonably likely. I have found thatcredible evidence exists to support that the hazard—a projectile shear pin—couldoccur. *See supra* Section III.B.1. I therefore affirm the determinationof likelihood in my penalty assessment.

 

**b.         Severity**

 

            TheSecretary asserts that the severity of the contemplated injury is lost workdaysor restricted duty. If an injury-causing hazard—a projectile shear pincontacting a miner—occurred, it could reasonably result in an injury that wouldcause a miner to miss at least a full day of work. Inspector Young testified toan event that caused a face laceration. Further, I find credible that an objectprojected with such force could cause a laceration or damage to an eye. Itherefore affirm the severity as characterized by the inspector.

 

**c.         Numberof Persons Affected**

 

            Theinspector assessed that only one miner would be affected by the hazard. I agreethat only one miner is likely to be contacted by a piece of a shear pinprojected from the clevis. I thus affirm the inspector’s enumeration of personswho could be affected.

 

**3.         S&S**

 

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

** **

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

 

            Amissing component from machinery, and the attested possibility that thecomponent intended to be controlled by the missing component could cause aninjury, 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 shear pin breaking under headgate pressure andbecoming a projectile.**

 

*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 that machinery be maintained in a condition that enablesits safe use by miners. *See So. Ohio Coal Co.*, 13 FMSHRC at 915. Thehazard the standard aims to prevent is one resulting from the dangerousoperation of the cited machinery. The Secretary provided a plausible specifichazard posed by the missing component. Therefore, the specific hazard here is theshear pin becoming a projectile.

 

Theremaining issue is whether a reasonable likelihood exists that the shear pinwill become a projectile under pressure from the headgate. Respondent iscorrect that the likelihood of hazard should be based upon the “particularfacts surrounding the violation.” Resp’t Br. at 9 (citing *Newtown Energy,Inc.*, 38 FMSHRC at 2038). I find that the hazard is reasonably likely tooccur.

 

            TheSecretary provided credible testimony that shear pins have broken and becomeprojectiles. Regarding particular facts, the standard here was cited on aheadgate shield. Inspector Young testified that the observed injury-causing hazardoccurred while the miner was pushing out the headgate. Tr. 42.

 

            Iacknowledge that multiple Respondent witnesses testified that they have notseen this happen, and more importantly, that if it were to occur, it wouldrequire adverse conditions. The Commission recently vacated an S&S findingat Step 2 because exposure to a hazard was not likely. *See Consol Pa. CoalCo.*, Docket No. PENN 2019-0008, 2022 WL 489572, at *6–7, *9 (Feb. 10, 2022)(reasoning that contact with a damaged cable would require it to be knockeddown from its hanging hooks, but there was no evidence that it could be easilyknocked to the floor). This supports a failure at Step 2 if nothing in therecord establishes the likelihood that the conditions enabling a projectile pinwill occur. That is not the case here, however.

 

            Ifind that an event that has occurred in the past is reasonably likely to occur,as a matter of logic and common sense. *See United Steel Mining Co.*, 7FMSHRC 1125, 1130 (Aug. 1985) (accepting testimony that the mine hadexperienced methane ignitions in the past to conclude that “evidence supports afinding that there was a reasonable likelihood that the hazard . . . couldresult in the occurrence of an ignition”);*Consolidation Coal Co.*, 6FMSHRC 34, 38 (Jan. 1984) (affirming an S&S finding because evidence of badroof *and testimony of past roof falls* made the occurrence of the hazardreasonably likely) (emphasis added). The inspector has not relied uponconjecture of speculation but on a previous event with which he was personallyfamiliar.

 

Icredit Inspector Young’s testimony that he has witnessed such an occurrence *ata headgate shield*, and that there have been other reports of projectile pins.[8]Also, assuming continued mining operations, it is possible that adverseconditions could present with a keeper pin still absent. Crediting testimonyabout the occurrence of the hazard in the past gives rise to 

 

 

thepotential that those conditions will converge again in the future. I thereforefind that the hazard was reasonably likely at Step 2.[9]

** **

**c.         Step 3: It is reasonablylikely that projectile shear pin contact with a miner would cause an injury—lacerationor eye damage.**

** **

*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.

 

            One only reaches Step 3of the *Mathies* analysis after determining that the hazard is reasonablylikely to occur. I thus assume the occurrence of the hazard—a shear pinbreaking under the pressure of the headgate and becoming a projectile. TheSecretary provided testimony that such a pin could contact a miner and cause alaceration. This alone is insufficient for a finding that an injury isreasonably likely to occur. Respondent correctly asserts that Commissionprecedent requires more than a finding that there is a “potential” that aninjury “could” occur. Resp’t Br. at 8 (citing *Wolf Run Mining Co.*, 32FMSHRC 1669, 1677 (Dec. 2010); *Texasgulf Inc.*, 10 FMSHRC 498, 500–01(Apr. 1988)). As with Step 2, I must evaluate whether an injury is *reasonably*likely to occur based on the surrounding circumstances.

 

            The Secretary iscorrect that Respondent cannot rely on safety measures or minerprecaution—e.g., helmets and protective clothing—to defend at Step 3. *See*S. Br. at 9 (citing *Sec’y of Lab. v. Consolidation Coal Co.*, 895 F.3d113, 116, 118 (D.C. Cir. 2018)). There must, however, be evidence on the recordthat miners would be in the area during operations to be injured by the hazard.*See Consol Pa. Coal Co.*, 43 FMSHRC at 152, 153 (demonstrating thatminers worked at the site of the cited equipment, and that others workednearby). The record must also demonstrate that one or more miners would havebeen at risk of injury from the discrete hazard. *See Peabody Midwest Mining,LLC,*42 FMSHRC at 387–88 (acknowledging that evidence established that moreminers than could be accommodated by refuge chambers would be present onsection at shift change, but finding that the absence of evidence of any miningactivities or other possible ignition source during shift change negatedpotential for injury).

 

            The Secretary’s brief didnot focus on the possibility that other miners beyond the miner moving theshields could have been exposed to the hazard. *See*S. Br. at 11 (relyingmostly on the average distance between the miner using the remote and theshield being moved). However, Inspector Young testified in two places about thepresence of miners. First, he testified that gate shields are in transitionareas that are in a walkway, but he specified in the same sentence that it is“where people stand whenever they push and pull these shields.” Tr. 42. Thistestimony does not explicitly provide that there are miners other than theshield operator exposed to the hazard.

 

            Inspector Young laterexplained:

 

[T]here’s [sic] a whole lot ofpeople exposed, especially at the head gate [sic] when they cut out. Peoplejust don’t run off the base and cut out and come back on to the face. Theshields are pulled, the guys are standing up in the transition area andunderneath the gate shields, and these shields – and then the pan line ispushed, and these guys come in and cut out.

* *

*Id.* at 45. This testimony identifies otherminers present during shield operation. Therefore, I assume the presence ofboth the shield operator and other miners while the shield is operated duringcontinued normal mining operations.

 

            I accept Mr. Denham’stestimony that miners are usually further away—possibly ten meters—whileoperating gate shields because they are usually moving multiple shields. *Id.*at 149. All witnesses nevertheless testified that miners at this mine generallyoperate shields manually from two shields away at a distance of seven-to-elevenfeet.

 

            Combining the likelihoodthat a miner would be within the shorter testified distance, the testimony thata projected pin has flown eight feet to injure a miner, and the lack ofcontrary testimony to the inspector’s claim that other miners are in the areaduring shield operation, I find that an injury is reasonably likely to occur.

 

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

 

            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 at 149 (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 the hazard could result inlacerations or eye damage. Respondent focused on the likelihood of the hazardand injury occurring, *see* Resp’t Br. at 11–14, only making conclusorystatements that any resulting injury would not be of a serious nature, *seeid.* at 13, 14. I find it is reasonably likely that an injury that couldinclude lacerations or eye damage would be reasonably serious.[10]

**4.         Negligence**

 

            Ifind that the negligence was properly characterized by the inspector as “low.” Thosecharged with inspecting the shields are familiar with the mining industry andrelevant facts. They should have been familiar with the protective purpose of ensuringthe keeper pins were present. I therefore find that a reasonably prudent personin their position should have known about the violative condition and acted toremedy it.

 

            TheSecretary argues that this is a result of moderate negligence because theoperator knew that these pins commonly break and failed to remedy a violationthat it should have assumed. *See* S. Br. at 11–12. Respondent argues thatno negligence was demonstrated because no one knew about a broken pin. *See*Resp’t Br. at 14. I disagree with both.

 

Theinspector appropriately noted that these pins consistently break, and that thecondition could have occurred between the last inspection and the violation. Icredit the inspector’s explanation, and I agree to a limited degree with theSecretary—this is a condition Respondent must work to continually remedy tomaintain the machinery in a safe operating condition. I therefore affirm thenegligence finding.

 

**5.         Penalty**

 

TheSecretary has entered Respondent’s violation history [MSHA Directorate ofAssessments, Assessed Violation History Report] into evidence. *See* Ex. GX-12.Its history consists of twenty-nine repeat violations during the inspectionperiod. I have reviewed Respondent’s general and repeat violations, and I findthat the Secretary has properly considered Respondent’s violation history inhis calculation. I agree that the Secretary has properly evaluated the size ofthe mine in his calculation. Neither party has stated that payment of thispenalty will affect Respondent’s ability to continue in business, and theminimal penalty amounts do not support such a conclusion.

 

            Theproposed penalty of $383.00 was based, in part on the negligence [low] andgravity [reasonably likely] assessed in the citation. I have affirmed thereasoning underlying the Secretary’s assessments. The citation was terminated immediatelyby installation of a keeper pin. Thus, Respondent demonstrated good faith inachieving rapid compliance following citation. Having affirmed the citation as issued,in consideration of the six factors in Section 110(i) of the Act, I assess apenalty of $383.00, as proposed by the Secretary.

 

 

**IV.       CITATION NO. 9204250**

 

**A.        FactualFindings**

 

            Thiscitation was issued by Inspector Young on March 3, 2021. Ex. GX-4, DOL 022. Heassessed gravity as “reasonably likely,” “lost workdays or restricted duty,”“S&S,” and one person affected. *Id.* He assessed negligence as “low.”*Id.* The description read:

 

The Company Number 33, ContinuousMiner (s/n- 033K, 2G-4022A) located approximately 130 feet inby the number 39crosscut, in the number 3 entry on the 9L Working Section (007-0 MMU) was notmaintained in permissible condition. Four 120 A.C. volt area light globes werecracked. The 2 area lights inby the side bolters contained one or more crackswhich ranged from 1.5 to 3 inches in length, but the body of the globes couldnot be distorted by hand pressure. The double ended area light (2 globes) directlybelow the rib bolter on the operators [sic] side were badly damaged by beingcovered with cardboard and had overheated. These light globes containednumerous, large spider web like [sic] cracks going in multiple directions, onecontained a hole measuring 0.25 inches wide by 0.375 inches long. Both of theselights could easily be distorted by hand pressure from the heat damage done tothem from them being unnecessarily be [sic] covered with the cardboard. Thiscondition permits the ambient mine atmosphere to freely enter the explosionproof electrical lighting fixtures. Additional confluence of factors areincluded in citation number 9204251 for the methane monitor not beingmaintained in proper operating condition and methane being liberated in thisworking section were used in determining this condition to be Significant andSubstantial. The Operator immediately removed the machine from service untilthe conditions could be corrected. this [sic] mine liberates 10,835,416 cubicfeet of methane every 24 hours.

 

*Id.*, DOL 022–23. He visited the minefor an E02 spot inspection because Bailey Mine liberates more than ten millioncubic feet of methane every twenty-four hours, and it was on a five-day Section103(i) inspection regimen. Tr. 28, 71, 76. Ventilation was working properlythat day. *Id.* at 93.

 

InspectorYoung found 120-volt light globes with cracks and holes. *Id.* at 73. Henoted that the damage could have occurred since the last required exam severaldays prior. *Id.* at 82. He simultaneously noted that the section wasliberating methane, obtaining a reading of 0.25 percent in the Number 3 Entry. *Id.*at 77. Methane typically increases when the continuous miner begins cuttingcoal, and the miner was inby a crosscut for operation. *See id.* at 94–95;Ex. GX-4, DOL 022.

 

Healso issued a citation for an improperly calibrated methane monitor on thecontinuous miner with the violative globes. *See* Tr. 78; Ex. GX-5. Theminer was deenergized in a test when the monitor read 1.5 percent. Tr. 88–89,122–23. Inspector Young testified, and Mr. Jones acknowledged, that the monitorshould have read 2.5, but only read 1.7, when the miner shut down. *Id.*at 89, 123.

Nowitnesses were aware of any electrical faults within the enclosure at the timeof inspection. *Id.* at 133, 176. Respondent provided photographicevidence—taken of the continuous miner outside the mine, several months afterthe citation—that the lights in the cited globes were likely LED rather thanfluorescent or incandescent. *Id.* at 164, 166, 174; Ex. R-7, CONSOL 0038,0041. Inspector Young acknowledged that he did not know what type of lightswere in the globes, only that they were 120-volt. Tr. 87.

 

JohnBaker, Consol’s electrical engineer, testified that LED lights are moreefficient but still radiate heat. *Id.* at 160, 163. He recognized that,while close, the circuit in question is not intrinsically safe per the graphprovided by Respondent. *Id.* at 170–72; Ex. R-8, CONSOL 0042. Oncross-examination, he admitted that the dot on the graph is on the “explosiveside” of the curve, that one cannot predict when an electrical circuit willfail, and that the cited globe was “not mechanically intact”—i.e., notexplosion proof. Tr. 174, 176–77.

 

**B.        Disposition**

**1.         Violation**

 

            Thecited standard states, “The operator . . . shall maintain in permissiblecondition all electric face equipment required by . . . [§] 75.504 to bepermissible which is taken into or used inby the last open crosscut of any suchmine.” 30 C.F.R. § 75.503 (2022). Permissibility requirements “ensure thatignitions occurring within enclosures on mining equipment which containelectrical circuits will not escape into the mine atmosphere.” *Knox CreekCoal Corp.*, 36 FMSHRC 1128, 1131 (May 2014).

 

            Respondentmade only a cursory challenge to the violation finding. *See* Resp’t Br.at 16 (“If a Violation Existed, the Citation was Improperly Designated asS&S . . . .”). The Secretary, nevertheless, still has the burden of provingthe violation. The Secretary provided credible testimony that cracks and holesexisted in the cited globes. Respondent’s electrical engineer acknowledged thatsuch conditions make the globes “not mechanically intact.” He further testifiedthat an enclosure must be mechanically intact in order to be explosion proof.

 

            Icredit the testimony of both witnesses and find that the cited enclosures werenot mechanically intact. Therefore, they were not explosion proof. Becausepermissibility is meant to prevent ignitions within enclosures from escaping,these enclosures were not permissible. Finally, the offending continuous minerwas taken and used 130 feet inby the described crosscut. I therefore affirm theviolation.

 

**2.         Gravity**

**a.         Likelihood**

 

            TheSecretary asserts that the hazard is reasonably likely. I have found thatcredible evidence exists to support the potential ignition in a light fixturepenetrating a compromised globe. *See supra* Section IV.B.1. I therefore agreewith the determination of likelihood.

 

 

**b.         Severity**

 

            TheSecretary characterized the severity of the contemplated injury as lostworkdays or restricted duty. The Secretary provided credible testimony thatsuch a hazard could cause external and internal burns, broken bones, orconcussions. Tr. 81. I find that such injuries would reasonably result in aninjury that would cause a miner to miss at least a full day of work. Itherefore affirm the inspector’s characterization of severity.

 

**c.         Numberof Persons Affected**

 

            Theinspector assessed that only one miner would be affected by the hazard. While Ithink it likely that more than one miner would be working in the vicinity ofthe offending machine when the hazard was possible, *see id.* (“Usuallyit’s the *bolters* closest to the facing that take the brunt . . . .”)(emphasis added), I defer to the inspector’s judgment as to the 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 maintain the mechanical integrity of light fixtures on equipmentused inby the cited crosscut 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.

 

**b.         Step 2: The violationwas reasonably likely to result in the discrete safety hazard against which theregulation is directed—ignition of the mine atmosphere.**

 

            Amethane ignition outside of the enclosure is the discrete safety hazard againstwhich the standard intended to protect. The reasonable likelihood of thishazard occurring requires two things: the reasonable likelihood that anexplosion will occur in the violative enclosure, and the reasonable likelihoodthat the escape of that explosion will ignite the mine atmosphere. *See KnoxCreek Coal Corp. v. Sec’y of Lab.*, 811 F.3d 148, 164 (4th Cir. 2016)(quoting *Texasgulf, Inc.*, 10 FMSHRC at 501) (“When the Commission in *Texasgulf*required the consideration of a “confluence of factors” in making an S & Sdetermination, it was specifically concerned with whether there was ‘asufficient amount of methane in the atmosphere surrounding the impermissiblegaps and ignition sources.”).

 

**i.          There is sufficientevidence in the record to find that an explosion within the enclosure wasreasonably likely.**

 

            Theviolative light fixture is a 120-volt system. Tr. 75, 87, 174. Even if an LEDbulb was present, the circuit would not have been intrinsically safe. *Id.*at 172; Ex. R-8, CONSOL 0042. Electrical circuits do fail without warning, andone cannot predict when that will occur. Tr. 176, 177. In addition to the poorcondition of the globes, there was credible testimony by the inspector thatmoisture, erosion, vibration, or just age can contribute to a failed circuitthat can contribute to an ignition. *Id.* at 75; *see also Knox CreekCoal Corp.*, 36 FMSHRC at 1134 (noting similar conditions and causes forfailure that were sufficient for affirming an S&S designation).

 

            TheSecretary relied on the fact of violation and that even LED bulbs, if present,were acknowledged to not be intrinsically safe. *See* S. Br. at 12–13. Respondentcorrectly notes that the reasonable likelihood of an ignition within the lightfixture is required, *see* Resp’t Br. at 17, but it fails to provideadequate evidence negating this likelihood. Respondent makes three assertionsregarding the light fixture that I reject.

 

            First,that there would have to be a failure in the light fixture on the nonprotectedside of the light’s ballast. *Id.* There is sufficient evidence in therecord to conclude that the circuit could fail in the normal course ofoperations. Further, such an argument would essentially negate the danger inany permissibility violation. The purpose of the standard is to prevent theeffects of an ignition within an enclosure from reaching the outsideatmosphere. A light fixture failure must be assumed to be able to ignitemethane that naturally enters the enclosure.

 

            Second,that there was no evidence of electrical issues with the lights. *Id.* at18. This is similarly refuted by the requirement to assume continued normalmining operations. There is credible testimony from both parties that suchcircuits can and do fail.

 

            Finally,that the LED lights allegedly present are nearly intrinsically safe—designed tobe “near the energy level that could not ignite a methane concentration.” *Id.*Respondent’s own electrical engineer admitted, and the provided graphdemonstrated, that even LED lights would not move the circuit to theintrinsically safe side of the line. Though “nearly” intrinsically safe, theevidence supports a conclusion that the lights in question, including LEDlights, would provide a potential source for an ignition.

 

            Evenif the use of LED bulbs was sufficient to make an ignition unlikely, there isnothing in the record proving that LED bulbs were in fact present at the timeof the citation. The picture evidence shows what does appear to be an LEDfixture through the globes. Tr. 166; Ex. R-7, CONSOL 0041. That providedpicture, however, was taken outside the mine, months after the citation wasissued, and after the globes had been replaced. Tr. 174; Ex. R-7, CONSOL 0038,0041. No witness testified that LED bulbs were present at the time of thecitation.

 

**ii.         A preponderance of theevidence establishes that an atmospheric ignition was reasonably likely.**

 

            Ihave concluded that an ignition within the light fixture is reasonably likely,and the fact of impermissibility would allow such an explosion to escape theenclosure. Bailey Mine is a “gassy” mine that liberates more than ten millioncubic feet of methane every twenty-four hours, and the mine and cited sectionwere liberating methane at the time. Tr. 76–77; Ex. GX- 4, DOL 023; *see alsoKnox Creek Coal Corp.*, 811 F.3d at 164 (recognizing that a mine liberatingmore than 500,000 cubic feet of methane or other explosive gases during atwenty-four-hour period was considered “gassy”).

 

            In*Knox Creek Coal Corp.*, the affirmed Commission decision did not disturbthe judge’s finding that the designation of a mine as “gassy” was sufficient tofind that an ignition was reasonably likely. *See*811 F.3d at 154 (recognizingthe judge’s finding that “an explosion could escape the enclosures and triggera larger explosion in the ‘gassy’ mine atmosphere”); 36 FMSHRC at 1131(“[G]iven the gassy nature of the mine, sudden methane buildups in theexplosive range could reasonably be expected to occur.”).

 

            Inaddition to accepting the possibility of sudden methane buildups as sufficientfor S&S, the ALJ’s decision in *Knox Creek*noted that methaneaccumulations above five percent had previously been detected. Docket No. VA2010-89-R, 2010 WL 5619977, at *43 (Dec. 27, 2010) (ALJ). He further acceptedtestimony that “although methane could accumulate to an excessive range fromplaces such as the floor or the rib[s], usually it came from the face [as] coalwas cut.” *Id.* at *41.

 

            Respondentasserts that the necessary confluence of events was not present. First, it providedtestimony that there would have to be sufficient methane accumulation for asufficiently long time, that it would have to occur quickly enough for themonitor to trip the miner, and that a simultaneous light fixture failure wouldhave to occur. *See* Tr. 169–70; Resp’t Br. at 17. 

 

Ihave already addressed the reasonable likelihood of circuit failure, and thusdo not accept this contention here. Next, it is true that nothing in the recordprovides that the explosive level was reached in the cited entry or otherentries. *See*Tr. 76–77, 84–85, 93, 121–22, 124–28; Ex. GX-4, DOL 038–39;Resp’t Br. at 17. However, such accumulation does not need to be shown at ornear the time of the violation. Per *Knox Creek*, it is sufficient thatthe mine is “gassy,” and that buildups within explosive range are reasonably likelyto occur.

 

Asthe Commission has consistently held, the S&S analysis must assume thecontinuation of normal mining operations. *See Knox Creek Coal Corp.*, 811F.3d at 156 (affirming that the judge failed to consider methane accumulation “as[it] would have existed had normal mining operations continued”); *see also*36 FMSHRC at 1132 (citing *Black Beauty Coal Co.*, 34 FMSHRC 1733, 1740(Aug. 2012); *Youghiogheny & Ohio Coal Co.*, 9 FMSHRC 673, 677–78(Apr. 1987)). In this context, we must assume a constant threat of explosivemethane in a gassy mine. I therefore find a reasonable likelihood that methanelevels will rise when the miner cuts coal during continued mining operations.

 

Finally,I also consider that the methane monitor was shown to not be calibratedproperly, and that more methane than detected would likely be present before itcut the miner’s power. *See* Tr. 78, 123; Ex. GX-5. Taken together, thereis sufficient evidence on the record to find that an ignition is reasonablylikely to occur.

 

 

**c.         Step 3: It is reasonablylikely that ignition of the mine atmosphere would result in injury such as burns,broken bones, or concussions.**

 

            The reasonablelikelihood of occurrence of the hazard has been established. Assuming anignition occurs, I find that it is reasonably likely to result in an injury. Anexplosion is generally reasonably likely to cause injury—burn or concussive—tonearby miners. The issue, therefore, is whether the record demonstrates thatminers will be in vicinity of the hazard.

 

            Respondent makes nospecific assertions contesting Step 3; it only states broadly that “theCitation is not reasonably likely to result in a hazard that was reasonablylikely to result in injuries of a reasonably serious nature.” Resp’t Br. at 18.The Secretary similarly provides little in support. *See* S. Br. at 13 (arguingthat the failure of Respondent to dispute that “an LED bulb runs on 120 voltsand is not intrinsically safe” satisfies Step 3). I find this assertion lackingin a Step 3 analysis because it is only relevant to the likelihood of thehazard occurring in Step 2. This nonetheless does not prohibit a finding thatthe violation meets the requirements for Step 3.

 

            TheSecretary provided credible testimony that miners would be working near theviolative continuous miner during operation. I already credited his assessmentthat at least one miner—“bolter[] closest to the facing”—would be injured by anignition. *See supra* Section IV.B.2.C. With no contrary testimonyprovided, this is sufficient to find that a miner would be injured if thehazard occurred.

 

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

 

            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 an ignition of the mine atmosphere could cause burns, brokenbones, or concussions to miners, particularly the bolters working near thecontinuous miner. I find that such injuries are correctly characterized as of areasonably serious nature.

 

**4.         Negligence**

 

Ifind that the negligence was properly assessed as “low.” Those charged withinspecting for permissibility are familiar with the mining industry andrelevant facts. They should have been familiar with the protective purpose ofensuring that light fixture housings (globes) are in permissible condition. Itherefore find that a reasonably prudent person in their position should haveknown about the violative condition and acted to remedy it.

 

TheSecretary maintains that this violation was a result of low negligence becausethe damage could have occurred in the days since the last required electricalexam. S. Br. at 13. Respondent provided no argument against the negligencefinding, though it did elicit testimony from Inspector Young that the nextrequired exam could have been completed by the day following the citation. Tr.90–91; Ex. GX-4, DOL 040.

 

            Theinspector appropriately noted that, while a foreman should have seen thelights’ condition, the damage could have occurred since the last exam. Tr. 82. Icredit the inspector’s explanation. I therefore affirm his negligence finding.

 

**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 GX-12. Its history consists of twenty-fourrepeat violations during the inspection period. Accordingly, this factor hasalready been properly considered and is of no consequence in my assessment.

 

I affirm that the violation’sgravity was properly characterized by the inspector, so I find no reason toimpose a higher penalty assessment based on that factor. *See supra*Section IV.B.2–3. Respondent immediately abated the violation by replacing thelight fixtures. *See* GX-4, DOL 022. I therefore find that the operatordemonstrated good faith in attempting to achieve rapid compliance afternotification.

 

The proposed penalty of $383.00 wasbased, in part on the negligence [low] and gravity [reasonably likely] assessedin the citation. I have affirmed the reasoning supporting both determinations. Havingaffirmed the citation as issued, and considering all of the criteria relevantto this violation, I assess a penalty of $383.00.

 

**V.        CITATION NO. 9204257**

 

**A.        FactualFindings**

 

            Thiscitation was issued by Inspector Young on March 22, 2021. Ex. GX-6, DOL 046. Heassessed gravity as “unlikely,” “lost workdays or restricted duty,”non-S&S, and two persons affected. *Id.* He assessed negligence as“low.” *Id.* The description read:

 

The Operator failed to plot alldrill holes which penetrate the coalbed being mined on the 75.1200 map at theBailey Mine. A [sic] alleged gas well was inadvertently cut through on the 10JLongwall Working Section (039-0 MMU) at the number 118 shield at plus number25+53 and was not shown to exist on the 75.1200 map.

 

*Id.* Inspector Young visited the mineupon Respondent’s call that it cut through an uncharted gas well. Tr. 179. Heissued the citation because the unplotted, intersected well was “a bore holethat penetrated the coal seam.” *Id.* at 184.

 

            Thelocation was not accurately marked on Respondent’s mine map. *Id.* at 187.Matthew Ruckle, Consol’s project engineer, explained, and Inspector Youngacknowledged, that Respondent conducted a diligent search, using available mapsand outside contractors to search the surface. *See id.* at 190, 193, 217,226–27, 229; Ex. R-13, CONSOL 0070–74. The nearest plotted “did not find”(“DNF”) drill hole, nonetheless, was marked 273 feet away from the actualintersected hole. Tr. 185.

 

**B.        Disposition**

**1.         Violation**

 

            Thecited standard states, “Additional information required to be shown on minemaps under § 75.1200 shall include the following: . . . all drill holes thatpenetrate the coalbed being mined . . . .” 30 C.F.R. § 75.1200-1(d) (2022). Respondentdid not contest the fact of violation in its post-hearing brief. *See*Resp’t Br. at 20 n.5 (contesting only the negligence designation because of therecent decision in *Consol Pennsylvania Coal Co.*, 44 FMSHRC at 168, 173,which affirmed a citation for drill hole plotted 125 feet from its actuallocation).

 

            TheSecretary, nevertheless, still has the burden of proving the violation. Anoperator is liable for a violation of this standard if a drill hole is inaccuratelyplotted, regardless of the level of fault. *See Musser Eng’g, Inc.*, 32FMSHRC at 1272 (citing *Spartan Mining Co.*, 30 FMSHRC at 706; *Asarco,Inc.*, 8 FMSHRC 1632, 1634–36 (Nov. 1986), *aff’d*, 868 F.2d 1195 (10thCir. 1989)). The Commission in *Musser* affirmed the judge’s finding ofviolation, reiterating the level of inaccuracy found:

 

To say that the operator’s map was inaccuratewould be an understatement. If the operator’s map were accurate, the [mine]workings would not have been intersected because the [mine] really would havebeen approximately 450 feet away, as indicated on the operator’s map.

 

*Id.* at 1270 (citing 28 FMSHRC 699, 706(July 2006) (ALJ)).

 

            First,I agree with the assessment that this was a drill hole that penetrated thecoalbed being mined. Respondent intersected the hole during mining operations;the inspector testified that Respondent “mined past it, and the face openedup,” and that “[t]hey might as well have mined through it.” Tr. 209.

 

            Finally,the Secretary provided credible testimony that the closest plotted suspectedgas well was 273 feet from where the operator intersected the hole in question.This is sufficient inaccuracy to sustain a violation. I therefore affirm thecitation.

 

**2.         Gravity**

**a.         Likelihood**

 

            TheSecretary asserts that an injury is unlikely. The inspector assessed ignitionas unlikely because legal gas check results were within safe limits. Tr. 186. Withno contrary evidence provided, I affirm the inspector’s likelihood finding.

 

 

 

**b.         Severity**

 

            TheSecretary provided credible testimony that the ignition or fire hazard, thoughunlikely, would result in burns, concussions, or broken bones. *Id.* at190. I find that such injuries would reasonably result in a miner missing atleast one full day of work. I therefore affirm the severity found in thecitation.

 

**c.         Numberof Persons Affected**

 

            Thecitation found two miners would be affected by the hazard, noting that twopeople usually run the shear. *Id.* Respondent provided no contrarytestimony. I therefore affirm the number of persons affected.

 

**3.         Negligence**

 

Ifind that negligence was improperly assessed as “low.” Respondent is familiarwith the mining industry and relevant facts, and it has explicit familiaritywith the protective purpose of the regulation. *See supra* Section V.B.1. Therefore,I find that a reasonably prudent person in Respondent’s position should haveknown about the violative condition.

 

            Respondenthere did not rest its efforts on reviewing old maps that it could notreasonably conclude were accurate indicators of boundaries of previous mineworkings. *Contra Musser Eng’g, Inc.*, 32 FMSHRC at 1286 (affirming grossnegligence where it was unreasonable for operator to rely on the maps used). Respondentused two third-party contractors—18 Karat, Inc. and Blue Mountain, Inc.—tosearch for the suspected gas wells. Tr. 226–29. Neither contractor found theholes in question, and they were marked as DNF. *See id.*; Ex. R-14, 15. InspectorYoung even acknowledged that Respondent did the best it could to find thesuspected wells. Tr. 193.

 

            TheSecretary relies on MSHA negligence definitions to argue for low negligenceinstead of no negligence. He acknowledges that there were “considerablemitigating circumstances,” but that the operator could have known of theviolative condition. S. Br. at 14–15; *see also* 30 C.F.R. § 100.3(d) (2022).

 

Anassessment of no negligence is supported, however, under a reasonably prudentperson standard specific to miners. The Secretary did not provide testimonyregarding further actions Respondent could have taken. I find that Respondentconducted its search using all available means. I therefore reduce thenegligence finding from “low” to “none.”

 

**4.         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 GX-12. Its history consists ofonly two repeat violations during the inspection period. Accordingly, thisfactor has already been properly considered and does not significantly affectmy assessment.

 

            Iaffirm the violation’s gravity as assessed, so that factor also does not carryadditional weight in my penalty assessment. *See supra* Section V.B.2. Respondentimmediately abated the violation by updating its mine map. *See* GX-6, DOL046–47. I therefore 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. Because I findthat a reduction in negligence is warranted, *see supra* Section V.B.3, Ialso find that a penalty reduction is appropriate. The proposed penalty was$125.00, 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 $100.00.

 

**VI.       CONCLUSION**

 

            Itis **ORDERED** that Citation Nos. 9204245 and 9204250 be **AFFIRMED** as issued.

 

Itis also **ORDERED** that Citation No. 9204257 be **AFFIRMED** with theassessed gravity, and that the level of negligence be **MODIFIED** from “low”to “none.”

 

Finally, it is **ORDERED** thatthe Respondent pay the Secretary of Labor the assessed penalty of **$838.00**within 30 days of the date of this decision.[11]

 

 

 

 

 

/s/Michael G. Young

Michael G. Young

Administrative Law Judge

 

 

 

Distribution(First Class Mail and email):

 

Matthew R.Epstein, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 MarketStreet, Mailstop SOL/22, Philadelphia, PA 19103, epstein.matthew.r@dol.gov

 

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

 

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

----

[1]This Decision andOrder has been amended to correct page numbers in the Summary section found tobe inaccurate due to clerical error.

[2] This docketincluded seven section 104(a) citations. One was bifurcated and consolidatedwith Docket No. PENN 2021-0117. *See* Order Granting Mot. to Bifurcate andConsolidate at 1 (Jan. 19, 2022). Three were settled by the parties andapproved prior to hearing. *See* Decision Approving Partial Settlement at 1–2(Feb. 4, 2022).

[3]The inspector’s characterizationof the gravity of the violation, in conformance with Part 100 for purposes ofpenalty assessment, is not binding on the Commission, but I recite it here becauseit may be useful in evaluating the enforcement decisions made by the agency.

[4]The clevis is ahousing connected to the pan line of the shield and contains the shear pinwhere it connects to the relay bar, which moves the pan line. The clevis hastwo “ears,” or tabs, on the top and the bottom, and there are holes in thosetabs, through which the horizontal retaining pins are inserted and then securedwith an “r-clip” locked through a hole near the end of the pin, though a boltmay sometimes be used. Tr. 31–33.

[5]Shear pinsare hollow and have indentations, or grooves, near each end to enable them tobreak as intended. Tr. 31–32, 50–52.

[6]*CompareSpartan Mining Co.*, 30 FMSHRC 699, 711 (Aug. 2008) (“The standard imposestwo duties upon an operator: (1) to *maintain machinery and equipment in safeoperating condition*, and (2) to remove unsafe equipment from service.”)(emphasis added), *with Jim Walter Res., Inc.*, 19 FMSHRC 1761, 1767 (Nov.1997), *and Amax Coal Co.*, 17 FMSHRC 48, 51 (Jan. 1995) (ALJ) (requiringaction upon a finding of excessive methane, not methane prevention itself).

[7] The Commission in*Lopke Quarries, Inc.* required evidence that the asserted safe means ofaccess actually was utilized, not only that it existed in addition to anallegedly unsafe access. 23 FMSHRC 705, 707 (July 2001). The Commission in*Henna Mining Co.* held that an operator “could show that a cited area isnot a ‘means of access,’” demonstrating that existence of unsafe access wouldbe adequate to prove a violation. 3 FMSHRC 2045, 2046 (Aug. 2006).

[8]Inspector Young testified aboutanother miner being injured at the Bailey Mine by a piece of shear pin, but hecould not remember the miner’s name. Tr. 60–61. He acknowledged that he is onlyaware of one reportable accident, involving the miner he did name. *Id.*at 63. I find Inspector Young to be a credible witness and credit his accountof one other known minor injury caused by the hazard at issue.

[9] I stress that mydecision is narrow and is based on the record facts presented to me at hearingin this case. Those facts, involving the same mine and general circumstances asa prior incident testified to by the inspector, suggest a greater likelihoodthat shear pins will fail and be ejected at the headgate than in the mainmining line. Curiously, this seems to be at variance with a case involving theissue tried shortly before the case at bar. *See Consol Pa. Coal Co., LLC,*44 FMSHRC 161, 167 (March 2022) (ALJ) (focusing on *reduced*likelihoodthat pins will be ejected at headgate shields). I have issued my decision basedon the record facts as presented to me.

[10]Regarding thelikelihood that a miner would be wearing a protective “AirstreamTM” helmet,which includes a face shield, I note that the miner injured in the incidentdescribed by Inspector Young had an AirstreamTM helmet but had his face shieldlifted when he was struck by a piece of a shear pin. Tr. 69.

[11] 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.