Secretary of Labor v. Consol Pennsylvania Coal Company LLC

Read the official release (fmshrc.gov)

Plain-English summary

A newly commissioned slope hoist struck its sheave wheel after its automatic stopping systems failed, and Consol did not promptly report the accident or record required daily hoist examinations. Judge John Kent Lewis affirmed a high-negligence reporting citation, a low-negligence automatic-stop citation, and an S&S, high-negligence, unwarrantable-failure order for nine days of missing examination records. He also approved a partial settlement covering thirteen other citations, modifying eleven and vacating two. Total penalties for both dockets were $10,500.

Decision snapshot

• Principal standards: 30 C.F.R. §§ 50.10(d), 75.1400-4, and 77.1401
• Outcome: Three litigated violations were affirmed; eleven settled citations were modified, two were vacated, and total penalties were $10,500.
• Key point: Automatic stop controls must actually stop a hoist, and management's failure to document daily examinations can support S&S, high negligence, and unwarrantable failure.

Full text (FMSHRC public release)

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

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

CONSOL PENNSYLVANIA

COAL COMPANY LLC,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. PENN 2015-41

A.C. No. 36-07416-365834

Docket No. PENN 2015-42

A.C. No. 36-07416-365834

Mine: Enlow Fork Mine

DECISION AND
ORDER

Appearances:               Anthony
M. Fassano, Esq., U.S. Department of Labor, Philadelphia, PA, for Petitioner

Patrick
W. Dennison, Esq., Jackson Kelly, PLLC, Pittsburgh, PA, for Respondent

Before:                        Judge Lewis

These cases
are before the Court upon two petitions for assessment of civil penalties under
Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012). PENN 2015-42 contains one section 104(d)(2) order, and PENN
2015-41 contains 15 section 104(a) citations, two of which remain at issue.[1]

A hearing in
this matter occurred on Tuesday, July 14, 2015, in Pittsburgh, Pennsylvania. The
Court heard testimony from three witnesses: Jason Tungate, MSHA Inspector;
Chris Demidovich, maintenance supervisor; and Shane Jobes, outside shop and
maintenance foreman. Two witnesses, Christopher O’Neil, assistant manager of
maintenance for Pennsylvania operations, and Brian Henry, a hoistman, were
allowed to provide testimony at subsequent depositions.

During the
hearing, the parties entered the following joint stipulations into evidence:

1.      At
all relevant times, Respondent is/was an “operator” as defined in § 3(d) of the
Federal Mine Safety and Health Act of 1977, as amended (hereinafter referred to
as “the Mine Act”), 30 U.S.C. § 803(d), of the Enlow Fork Mine.

2.      The
Enlow Fork Mine, at which the Citations and Order in contest were issued, is an
underground coal mine subject to the jurisdiction of the Mine Act.

3.      This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to
Sections 105 and 113 of the Mine Act.

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

5.      The
Citations and Order at issue, as well as any modifications thereto, were
properly served by a duly authorized representative of the Secretary of Labor,
the Mine Safety and Health Administration, upon an agent of Respondent on the
date and place stated therein.

6.      Payment
of the total proposed penalty of the citations and order at issue in this matter
will not affect Respondent’s ability to continue in business.

7.      Consol
demonstrated good faith in the abatement of the alleged violations.

8.      The
parties stipulate to the authenticity of the exhibits referenced in the parties
Prehearing Statements (with all amendments thereto) but not to the relevancy or
the truth of the matters asserted therein. The Secretary has not stipulated to
the authenticity of Mr. Shane Jobes’s notes, which were provided to Counsel for
Consol and Solicitor Anthony Fassano on July 13, 2015.

9.      With
respect to Citation No. 7018138 Respondent admits that a violation of 30 C.F.R.
§ 50.10(d) occurred, and that the Citation was properly designated as
"Unlikely" and Non-S&S.

10.  With respect to Citation No.
7018138, the Citation was properly designated as "Lost Workdays or
Restricted Duty."

11.  With respect to Citation No.
7018138, the Citation was properly designated as “1 Persons Affected.”

12.  With respect to Citation No.
7018139, if a violation of 30 C.F.R. § 77.1401 occurred, the Citation was
properly designated as “Unlikely” and Non-S&S.

13.  With respect to Citation No.
7018139, if a violation of 30 C.F.R. § 77.1401 occurred, the Citation was
properly designated as “Lost Workdays or Restricted Duty.”

14.  With respect to Citation No.
7018139, if a violation of 30 C.F.R. § 77.1401 occurred, the Citation was
properly designated as “1 Persons Affected.”

15.  With respect to Order No.
7018140, Respondent admits that a violation of 30 C.F.R. § 77.1400-4 occurred.

16.  With respect to Order No.
7018140, the Order was properly designated as “1 Persons Affected.”

JX-1 at 1-3.[2]

Given the
stipulations of the parties, the remaining issues before the Court are: (1)
whether Citation No. 7018138 was properly designated as high negligence; (2)
whether, as set forth in Citation No. 7018139, there was a violation of 30
C.F.R. § 77.1401, and, if so, whether it was properly designated as low
negligence; (3) whether Order No. 7018140 was properly designated as reasonably
likely, significant and substantial, high negligence, and an unwarrantable
failure; and (4) the appropriate penalty for each violation.

I.                  
Summary of the Testimony

Enlow Fork
Mine (“the Mine”) is an underground coal mine operated by Consol Pennsylvania
Coal Company LLC (“Consol”) and is located in western Pennsylvania. The Mine is
considered a large coal mine by the Mine Safety and Health Administration (“MSHA”).
See Sec’y of Labor’s Petition for Assessment of Civil Penalty, Ex. A,
No. PENN 2015-41; 30 C.F.R. § 100.3, Table I. The mine has two slope hoists,
the Enlow slope hoist and the Oak Springs slope hoist. Tr. 97-98. The areas are
located approximately six miles apart, which takes 10-15 minutes to drive. Tr.
82, 163. This proceeding concerns the Oak Springs slope hoist.

A slope is a
diagonal entrance to a mine created by blasting into the ground until the
operator of a mine reaches the coal seam. Tr. 150. The slope at Oak Springs is
2,700 feet long, and has a grade of 16 degrees. Tr. 157. Coal is transported
out of Enlow Fork Mine up the Oak Springs slope via a belt, and the coal is
then transported over land back to the Enlow area. Tr. 150.

A slope hoist
consists of several parts, including the personnel or “brakeman” car, the rope,
the spool, the motor, the gearbox, the driver, and the operator station. It is
used to bring personnel and supplies into and out of the mine. Tr. 97, 99. The
Mine has three hoists: the Enlow slope hoist, a vertical hoist, and the Oak
Springs slope hoist. Tr. 98. The Enlow slope hoist is similar to the Oak
Springs slope hoist, and the vertical hoist is effectively an elevator for the
transport of personnel only. Id.

The Oak
Springs slope hoist is the most technologically advanced of the three hoists. Tr.

98. The hoist is equipped with a Programmable Logic Controller (PLC) and a
    Hoist Safety Supervisor (HSS). RX-K at 6-7. Both systems monitor the operation
    and condition of the hoist as well as monitor each other. Tr. 65-67. If the
    systems detect a problem with the hoist (a “fault”), it will show up on a
    screen in a control room, and the HSS and PLC have the ability to stop the car
    slowly (controlled stop fault) or abruptly (emergency stop fault). Tr. 117-18,
    120-21. The screen also shows the speed, torque, and position of the car for
    each fault. Tr. 122.

The Oak
Springs slope hoist took approximately two years to construct. Tr. 27-28. It
was built by a contractor, Frontier-Kemper Lake Shore (“Frontier-Kemper”). Tr.

102. Before a slope hoist can be put into operation, it must be commissioned. Tr.
103. In this instance, the commissioning ceremony (or “witness test”) was held
     on April 1, 2014, at which Frontier-Kemper performed a series of tests for
     Consol, the Pennsylvania Bureau of Deep Mine Safety, and MSHA. Tr. 60-62. If
     the tests are successful, the state of Pennsylvania approves the hoist for use,
     and the hoist gets a certification number. O’Neil Dep. 11.[3]
     There is no equivalent requirement for MSHA to certify or approve the hoist
     prior to operation. Id.

Consol’s
maintenance supervisor, Chris Demidovich, was present at the ceremony.[4]
Tr. 98-99. He stated that they tested the max load for the hoist, 107 tons, by
assembling 100 tons to add to the weight of the brakeman car. Tr. 103. Once the
hoist was loaded, they sent it down the slope shaft and hit the brakes to make
sure the brakes would hold the weight. Id. They also demonstrated
overtravel and overspeed safety features. Id. Demidovich testified that
at the end of the ceremony on April 1, 2014, “[e]verybody seemed to be
satisfied that [Consol] was okay to put this hoist in operation.” Tr. 104.

According to Christopher
O’Neil, Consol’s Assistant Manager of Maintenance for the Pennsylvania
Operations, Frontier-Kemper had additional items to complete after the
ceremony.[5] O’Neil Dep. 12; RX-E. Some
of the items were from Consol, and some were from the State. Id. Consequently,
O’Neil stated, the commissioning was not finished until the items were
completed and he signed the “Commission Certification.” Id. He signed
the Commission Certification, which states that “[t]he owner herby [sic]
accepts the above listed hoist system as complete, and assumes operational and
maintenance responsibilities of the system,” on April 7, 2014. RX-C. Additionally,
as of the commissioning ceremony, Frontier-Kemper had not trained Consol’s
hoist operators. O’Neil Dep. 13. They were trained on April 3, 2014. Tr. 106; RX-F
at 17. The Commissioning Report also states that “[t]he commissioning consisted
of successful completion of the included checklists, required periodic tests,
and training of 16 Consol hoistmen.” RX-F at 3.

Chris
Demidovich, hoistman Brian Henry, and 15 others attended the training on April
3, 2014.[6] Tr. 105-06; Henry Dep.
12; RX-F at 17. During the training, the Frontier-Kemper representative
instructed the miners on the operation of the hoist, all of the fault screens
and panels in the hoist building, the brake systems, and how to check the
safety features. Tr. 106-07; Henry Dep. 12. There were no discussions about
daily examinations at that time. Henry Dep. 12. Demidovich, however, had one of
his mechanics record that a weekly examination had been performed, since
Frontier-Kemper covered all of the safety devices on the brakeman car and the
mechanic was trained. Tr. 109. On April 3rd and April 4th, Consol recorded
weekly electrical examinations of the slope car, the slope pump, and the slope
rope.[7] RX-D at 1.

After the
training, Brian Henry was sent from the Enlow slope to the Oak Springs slope to
watch the belts that ran up the slope with the hoist. Henry Dep. 13. During
this time, Henry operated the Oak Springs slope hoist to hoist a fire boss so
that he could examine self-contained self-rescuer stations along the slope. Id.
He was never directed to hoist the fire boss, but the fire boss asked if the
hoist was operational, and to Henry’s knowledge, it was, so he pulled up the
fire boss. Id. Henry could not recall who told him that the hoist was
operational. Id. at 14. Shane Jobes and Inspector Jason Tungate also
testified that another fireboss was pulled out of the mine by another hoist
operator.[8] Tr. 48; Tr. 160.

Between April
3, 2014, and April 10, 2014, three issues occurred on the Oak Springs slope
hoist. The first, an overspeed glitch, occurred between April 3rd and April 8th.
Tr. 123. When the hoist was operated at 600 feet per minute, the HSS showed a
fault because the brakeman car’s overspeed control and the hoist drum’s
overspeed control were not communicating. Id. To fix the issue, Consol
turned one of the controls “maybe five feet a minute lower than the HSS [to]
kind of give it a little bit of a buffer so those two could try to keep in sync
with each other. Id. At 600 feet per minute, they could run the hoist
for a little while without having a fault, then they could hit the “fault reset
and acknowledge button” to run it again, but when they slowed down the hoist to
300 feet per minute, “it worked flawlessly.” Tr. 123-24.

The second
issue, a kink in the hoist’s rope, occurred on April 7th. Tr. 138. Brian Henry,
the hoistman, dropped dollies, or flat cars used to haul equipment, into the
mine using the Oak Springs slope hoist. Henry Dep. 15. When the dollies reached
the bottom of the hoist, Henry surmised at the hearing, the motormen hooking up
to the dollies “must have pushed the car up the hill too far and it kinked the
rope.” Henry Dep. 16. At that same time, Demidovich was with Chris O’Neil and Tom
Muser, maintenance managers, at Oak Springs, looking at the conveyor belt
system, and O’Neil and Muser wanted to stop by the hoist house to look at the
hoist remote building. Tr. 125. When they exited the hoist house, the brakeman
car had returned to the top of the rope, and they noticed the kink in the rope.
Tr. 125; Henry Dep. 16. Demidovich called Ketchem Construction to reterminate
the rope. Tr. 138. They were at the Enlow slope portal that day, however, so Ketchem
could not perform the work until April 8th. Id. The hoist was taken out
of service until Ketchem “reterminated” the rope on April 8th by removing the
25 feet that contained the kink and reconnecting the rope to the brakeman car. O’Neil
Dep. 19; Tr. 126.

The third
issue occurred on April 8th when the three overtravel devices failed to stop
the brakeman car from crashing into the shiv wheel at the top of the hoist. After
Ketchem reterminated the rope, they asked Tom Nelms, a hoist operator, to do a
full test run of the hoist before they left the area. Tr. 126. When he did so, he
failed to drop the brakeman car far enough into the mine to resync the system
with the reset switch. Id. Because he did not resync the system, the HSS
and PLC systems, which set a limit for how far up or down the slope hoist the
brakeman car can go, did not register that the rope was now 25 feet shorter
than it was prior to the retermination. Id. Consequently, when the car
reached the top of the hoist, the systems did not register that it had done so.
Regardless, a third overtravel device, a “mechanical limit switch,” should have
stopped the car short of running into the shiv wheel. This switch failed, too. Tr.
52.

The mechanical
limit switch consisted of a spring-loaded, foot-long rod that, when struck by
the car, should have caused the car’s brakes to engage. Tr. 127. However, the
inch-wide plate on the car “barely caught the end of the rod, so when it shoved
the rod down . . . and it went past the rod, the rod popped itself back up in a
neutral position.” Id.

On Thursday,
April 10, 2014, Inspector Tungate conducted an inspection at the Oak Springs
portal. Tr. 28. His supervisor had told him that an inspector at the mine on
April 9, 2014, was made aware of issues with the hoist, so Tungate’s supervisor
sent Tungate to look at the hoist. Tr. 84. The cited conduct and conditions were
discovered by Tungate during the April 10th inspection.

Inspector
Tungate issued Citation No. 7018138 for a violation of 30 C.F.R. § 50.10(d),
which requires that a mine operator contact MSHA within 15 minutes if a hoist
sustains damage that endangers an individual or interferes with use of the
hoist for more than 30 minutes. See GX-5. He marked the cited condition
as unlikely to result in a lost workdays or restricted duty injury or illness,
not significant and substantial, but resulting from high negligence, with one
person affected. Id. At the hearing, Tungate stated that he designated
the citation as high negligence because the mine knew, because they have other
hoisting systems at the mine, that “if there’s something that causes the hoist
to be down for longer than 30 minutes they have to report it.” Tr. 57.

Inspector
Tungate issued Citation No. 7018139 for a failure to have automatic stop
controls in violation of 30 C.F.R. § 77.1401. See GX-3. He designated
this violation as unlikely to result in a lost workdays or restricted duty
injury or illness, not significant and substantial, and the result of low
negligence, with one person affected. Id. Tungate designated the negligence
as low because the violation occurred during a test run and the failure to reset
the sensors, which caused two of the automatic stop controls to fail, was
inadvertent. Tr. 54.

Finally,
Tungate issued Order No. 7018140 due to Consol’s failure to record daily
examinations between April 1, 2014, and April 9, 2014. 30 C.F.R. §75.1400-4
requires that daily examinations be recorded after each examination is
completed and be retained for one year. See GX-1. He designated the
violation as reasonably likely to result in a lost workdays or restricted duty
injury or illness, significant and substantial, the result of high negligence,
affecting one person, and an unwarrantable failure to comply with a mandatory
safety standard. Id. Tungate stated at the hearing that a high
negligence finding was warranted, mainly, because the mine took ownership of
the hoist on April 1st, and no exams were recorded in the next nine days, even
though the hoist was operated by qualified operators and company officials were
around the hoist throughout the time period. Tr. 40. When Tungate arrived at
the hoist house, additionally, he saw the empty examination book sitting within
five feet of the hoist operator on a table or electrical box, with no other
books around. Tr. 44.

II.               
Findings of Fact and Conclusions of Law

The findings
of fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
I have 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, I have also relied on his demeanor. Any failure to provide detail as
to each witness’s testimony is not to be deemed a failure on my 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).

A.    Citation
No. 7018138 Is Properly Designated as High Negligence

Citation No. 7018138 was issued due
to a violation of 30 C.F.R. § 50.10(d), which requires the operator to
“immediately contact MSHA at once without delay and within 15 minutes . . .
once the operator knowns or should know that an accident has occurred involving
. . . [a]ny other accident.” The regulations define accident broadly,
but it includes “[d]amage to hoisting equipment in a shaft or slope which
endangers an individual or which interferes with use of the equipment for more
than thirty minutes.” 30 C.F.R. § 50.2(h)(11).

Inspector Tungate issued the citation because Consol
failed to report the kink in the rope and the damage caused when the car was
pulled into the shiv wheel following retermination of the rope by Ketchem. GX-5.

i.     
Negligence Determination

Consol has stipulated to the fact
of violation for Citation No. 7018138. JX-1, ¶ 9. Consol has also stipulated
that the violation was properly characterized as unlikely, non-S&S, that
the reasonably likely injury was lost workdays or restricted duty, and that one
person would likely be affected. JX-1, ¶¶ 9-11. The only remaining issues with
respect to this violation are whether the inspector properly characterized it
as being due to high negligence, and the appropriate penalty to be assessed.

The Secretary defines high negligence as
requiring that “management knew or should have known of a violation, and there
are no mitigating factors.” 30 C.F.R. § 100.3(d), Table X. Respondent urges use
of this definition as well. Resp’t Br. 29. Judges, however, are not bound by
the Secretary’s definitions of negligence. Wade Sand & Gravel, 37
FMSHRC 1874, 1878 n.5 (Sept. 2015). The Commission has a broader definition of
high negligence, which requires that such a finding result from “an aggravated
lack of care that is more than ordinary negligence.” E. Assoc. Coal Corp.,
13 FMSHRC 178, 187 (Feb. 1991). Under this definition, “a Commission Judge may
find ‘high negligence’ in spite of mitigating circumstances or may find
‘moderate’ negligence without identifying mitigating circumstances.” Brody
Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015).

The Court agrees that the citation was properly
characterized as high negligence. Consol is a seasoned operator, and has
another hoist and elevator at Enlow Fork Mine. Not only does it know of the
responsibility to report accidents, members of mine management had personal
knowledge of the damage that occurred and the time that it took to abate the
kinked rope. Without reporting accidents, MSHA cannot investigate causes and
cannot work to prevent additional accidents.

Respondent argues that the hoist was not being
used for production purposes, that Ketchem was directing the hoistman when the
car was pulled into the shiv, that the hoist was not a designated escapeway,
and that, although the hoistman had pulled firebosses in the car, he was never
directed to do so. Resp’t Br. 30-31. However, Respondent identifies no basis in
the caselaw or regulations that would exempt it from the reporting requirement
of § 50.10(d) for any of these reasons, and the Court does not recognize these
as mitigating circumstances.

Respondent also asserts that MSHA’s designation
of Citation No. 7018139 as “low negligence” is inconsistent with a finding of
high negligence for this citation. Resp’t Br. 32. This assertion is
unpersuasive because the negligent conduct that resulted in each violation is
completely different. For this citation, a finding of high negligence is
warranted because (1) mine management knew of the damage to the rope and the
subsequent damage to the shiv wheel, and (2) mine management knew of the
requirement in § 50.10(d) by virtue of the fact that the mine has another
operating hoist. The negligence that resulted in Citation No. 7018139 was based
on the short length of time the condition existed and the fact that the
hoistman should have known that the hoist would need to be resynced following
the retermination of the rope. The negligence that caused the automatic stop
controls to fail is irrelevant and unrelated to the mine’s negligence in
failing to report the resulting accident to MSHA.

ii.     
Penalty Determination

When assessing civil penalties, the
Commission considers the factors contained in section 110(i) of the Mine Act. These
six factors are:

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

30 U.S.C. § 820(i). The parties stipulated that the
penalties as assessed by the Secretary would not affect Respondent’s ability to
continue in business, and Respondent demonstrated good faith in abating the
violations. JX-1, ¶¶ 6-7.

The Court finds that Respondent had no history
of violations of this type, the operator was highly negligent, and the gravity,
with injury unlikely to occur, was somewhat low. Based on these factors, the
Court finds that the Secretary’s proposed penalty is appropriate. Accordingly,
a civil penalty of $362.00 is assessed against Respondent for Citation No.
7018138.

B.     The
Conduct in Citation No. 7018139 Violates 30 C.F.R. § 77.1401, and the Citation
Is Properly Designated as Low Negligence

i.     
The Fact of Violation

The Secretary has carried his burden of proof,
establishing that Respondent violated 30 C.F.R. § 77.1401 by a preponderance of
the evidence. The standard requires that “[h]oists and elevators shall be
equipped with overspeed, overwind, and automatic stop controls and with brakes
capable of stopping the elevator when fully loaded.” 30 C.F.R. § 77.1401.

The undisputed record discloses that the Oak
Springs slope hoist was equipped with three stop controls: the PLC system, the
HSS system, and the mechanical switch. Tr. 127. All three, however, failed to
stop the car, and the car crashed into the shiv wheel. Tr. 52.

The Secretary interprets § 77.1401 as
requiring that “the hoist be equipped with automatic stop controls capable of
stopping the hoist.” Sec’y Br. 20. Consequently, those that fail to stop the
hoist do not satisfy the plain meaning of the regulation. Id. It is
unclear, however, whether the adjective phrase “capable of stopping the
elevator when fully loaded” modifies only the noun “brakes,” or both “brakes”
and the series “overspeed, overwind, and automatic stop controls.” Because the
regulation is ambiguous, the Secretary’s reasoned interpretation is entitled to
deference unless “plainly erroneous or inconsistent with the regulation.” Auer
v. Robbins, 519 U.S. 452 (1997) (quoting Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 359 (1989)).

Regardless of whether the Secretary’s
interpretation of the standard is correct, automatic stop controls by their
very nature must be able to stop the car in order to comply with the
regulation, and the Court finds Respondent’s arguments to the contrary
unpersuasive. Respondent argues that the hoist was “equipped” with automatic
stop controls, and it therefore met the standard, even though they were not functioning
due to operator error. Resp’t Br. 27.[9] This is a distinction
without a difference, because the operator’s actions caused the stop controls
to no longer function, and controls that do not automatically stop a brakeman
car from running into the shiv wheel at the top of the hoist do not meet the definition
of “automatic stop controls” for the purposes of § 77.1401. If non-functioning
stop controls met the standard, the standard would be rendered useless since
they would not achieve the purpose for which they are intended—actually
stopping the car.

To the extent that operator error
played a role in the brakeman car’s failure to stop, such a factor may be taken
into consideration in determining the degree of negligence but not as to
whether a violation of § 77.1401 had taken place. Additionally, the mechanical
switch would not have been capable of stopping the car even in the absence of
error. Regardless of whether the hoist operator, who had only been trained a
few days earlier, see RX-H, had failed to resync the system, none of the
automatic stop devices, including the mechanical switch, actually stopped the car
when they should have.

ii.     
Negligence Determination

Given the stipulations of the parties, the
gravity of the violation of § 77.1401 was properly designated as “unlikely,”
the injury that could reasonably be expected was “lost workdays or restricted
duty,” and the violation itself was non-S&S with “1 person affected.” See
JX-1, ¶¶ 12-14. This Court found nothing in the record to contraindicate
said designations, leaving only the question of whether the negligence was
properly characterized as “low.”

30 C.F.R. § 100.3, Table X, provides that a
finding of low negligence is warranted when “the operator knew or should have
known of the violative condition or practice, but there are considerable
mitigating circumstances.”[10]

Respondent was aware that Ketchem had
reterminated the rope, so Respondent clearly knew or should have known of the
violative condition. However, as noted by Inspector Tungate, the condition had
existed for only a few hours. Tr. 54; GX-4. Given that Respondent had acted on
constructive knowledge that the hoist car would need to be resynced following
retermination so that the systems could accurately measure the rope’s length
and the stopping distance, Respondent has not advanced any persuasive argument
for a finding of no negligence. See 30 C.F.R. § 100.3, Table X (“The
operator exercised diligence and could not have known of the violative
condition or practice.”). Accordingly, the Court finds that Citation No.
7018139 was appropriately designated as arising from low negligence.

iii.     
Penalty Determination

The Court finds that Respondent had no history
of this type of violation, Respondent is a large operator, Respondent showed
low negligence in committing the violation, and the gravity was otherwise low. Considering
those factors and the factors stipulated to by the parties, the Court finds
that the originally assessed penalty, $100.00, is appropriate for Citation No.
7018139.

C.    Order
No. 7018140 Is Properly Designated as Reasonably Likely, Significant and
Substantial, High Negligence, and Resulting from an Unwarrantable Failure

Order No. 7018140 was issued to
Respondent for failing to record the hoist examination for nine days, from
April 1, 2014, to April 9, 2014. GX 1. It is undisputed that during his April
10, 2014, inspection, MSHA Inspector Tungate found that the examination book
for the Oak Springs slope hoist was blank. Respondent was unable to produce any
records of daily exams for the time period of April 1 through April 9, 2014. Given
such, the parties stipulated that 30 C.F.R. § 75.1400-4 was violated and that
this violation affected one person.

30 C.F.R. § 75.1400-4, in reference to daily examination of
hoists, provides:

At the completion of
each daily examination required by § 75.1400, the person making the examination
shall certify, by signature and date, that the examination has been made. If
any unsafe condition is found during the examinations required by § 75.1400-3,
the person conducting the examination shall make a record of the condition and
the date. Certifications and records shall be retained for one year.

i.     
Significant and Substantial and Likelihood

Well-settled Commission precedent sets forth the
standard used to determine if a violation is Significant and Substantial (S&S).
A violation is 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.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission
later clarified this standard:

In order to
establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). This
determination “must be made at the time the citation is issued ‘without any
assumptions as to abatement’ and in the context of ‘continued normal mining
operations.’” Paramont Coal Co., 37 FMSHRC 981, 985 (May 2015) (quoting U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

Since Respondent stipulated to the
fact of the violation, and 30 C.F.R. § 75.1400-4 is a mandatory safety
standard, the first element of Mathies has been proven by the Secretary.    
The second prong of Mathies is also clearly satisfied. The failure to
record daily examinations clearly contributes to a discrete safety hazard:
hoist operators, miners, or MSHA inspectors may be unaware of unsafe conditions
with the hoist that would pose a hazard for transporting men or materials. See
Tr. 37-38.

The third element of the Mathies test—a
reasonable likelihood that the hazard contributed to will result in an
injury—is also supported by the record and applicable case law. The Commission
discussed the third element of the Mathies test in Musser
Engineering, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (affirming an
S&S violation for using an inaccurate mine map). The Commission held that
the “test under the third element is whether there is a reasonable likelihood
that the hazard contributed to by the violation . . . will cause injury.” Id.
at 1281. Importantly, the “Secretary need not prove a reasonable likelihood
that the violation itself will cause injury.” Id.

The lack of notice of a possible unsafe
condition on the hoist due to the lack of a daily examination record clearly
creates a reasonable likelihood that the hazard contributed to will result in
an injury. Viewed through the perspective of continued mining operations, the
Court assumes that Respondent would continue to fail to record daily
examinations. Fire bosses at Enlow Fork Mine would continue to be exposed as
they utilized the slope hoist while conducting their preshift examinations. See
Tr. 39. These preshift examinations take place three times per day, once per
shift. Miners traveling in a hoist that had unrecorded unsafe conditions could
be thrown about if the hoist moved suddenly or had a violent impact due to a
collision or an emergency stop. Tr. 39-40.

The Secretary has also established the fourth
and final element of Mathies: “A reasonable likelihood that the injury
in question will be of a reasonably serious nature.” Mathies, 6 FMSHRC
at 3-4. Being thrown about in a hoist that is malfunctioning, causing it to
overspeed or overtravel, or causing sudden movements or violent impacts,
creates a reasonable likelihood that injuries will be of a reasonably serious
nature.

Respondent argues an injury was not reasonably
likely to occur due to the recording violation because of the redundant safety
features and “the significant attention paid to and work conducted on the hoist
during the relevant time.” Resp’t Br. 14. However, “the Commission and courts
have soundly rejected the argument that additional safety measures should
preclude a finding of S&S.” Small Mine Development, 37 FMSHRC 1892,
1901 (Sept. 2015); see also Buck Creek Coal, 52 F.3d 133, 136 (7th
Cir. 1995) (finding that additional safety measures did not preclude a finding
that a fire contributed to by coal dust accumulations would be reasonably
likely to result in serious injury). This point is especially important because
the safety features that Respondent relies on, which include the PLC, HSS,
mechanical switch system, and fault screen, all in some way failed within the
first nine days during which the hoist was active. The PLC and HSS failed when
the hoist operator did not recalibrate the hoist following the kink in the
rope. The mechanical switch failed of its own accord—it would have never
stopped the car from crashing into the shiv wheel, regardless of operator
error. Finally, the fault screen cannot notify the operator of every issue with
the hoist, as demonstrated when it did not identify the kink in the rope as a
problem. Henry Dep. 23.

Respondent’s argument that there
was “no hazardous miscommunication,” Resp’t Br. 18, is only true in the most
technical sense. Brian Henry stated that one of the ways that he would be aware
of problems with the hoist on prior trips would be through talking to the
hoistman from the prior shift. Henry Dep. 20-21. While operating the Oak
Springs slope hoist, he did not remember talking to anybody. Id. at 21. In
fact, even though he was operating the hoist to pull out firebosses and send
dollies into the mine, no one told him whether he was allowed to operate the
hoist or not. Id. Rather than stating that there was “no hazardous
miscommunication,” it appears that there was simply “no communication,” even
though Respondent asserts that “significant attention was paid to the hoist by
both Frontier Kemper and Consol.” Resp’t Br. 15.

Accordingly, the Court finds that
the failure to record examinations was significant and substantial and
appropriately designated as reasonably likely. The violation contributed to the
hazard that miners would use the hoist with unrecorded and uncommunicated
defects and hazards, which would be reasonably likely to cause a jarring stop,
either from the automatic stop controls or by running into the shiv wheel. This
stop would throw them about the car, resulting in reasonably serious lost
workday or restricted duty injuries. The known failures of the safety devices
and the admitted lack of communication, additionally, served to make an injury
reasonably likely to occur.

ii.           
Respondent’s Failure to Record Examinations Constituted an
Unwarrantable Failure

The Commission has determined that an
“unwarrantable failure is aggravated conduct constituting more than ordinary
negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013). Such
a failure may be characterized by the following types of conduct: reckless
disregard, intentional misconduct, indifference, or a serious lack of
reasonable care. Emery Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987).

Whether conduct is
“aggravated” in the context of unwarrantable failure is determined by looking
at all the facts and circumstances of each case to see if any aggravating
factors exist, including (1) the extent of the violative condition, (2) the
length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the
operator’s knowledge of the existence of the violation, (6) the operator’s
efforts in abating the violative condition, and (7) whether the operator had
been placed on notice that greater efforts were necessary for compliance.

Manalapan Mining Co., 35 FMSHRC at 293. The Court
must consider all relevant factors, the facts and circumstances of the case,
and whether mitigating circumstances exist. IO Coal Co., Inc., 31 FMSHRC
1346, 1351 (Dec. 2009).

1.      The
Extent of the Violative Condition and the Length of Time that the Violative
Condition Existed

Because this is a daily
recordkeeping violation, the extent of the violative condition and the length
of the time the condition existed are, in this case, one and the same. Accordingly,
the Court will consider these two factors together.

In order to determine the length of
time that the condition existed, the Court must determine when the Oak Springs
slope hoist was commissioned. The Secretary contends that Respondent failed to
record exams for nine days, from April 1, 2014, to April 9, 2014. Respondent,
however, asserts that it was not required to perform daily examinations until
Monday, April 7, 2014, when Chris O’Neil signed the Commission certification
document, RX-C, which was signed, scanned, and emailed to Jeremy Cundiff,
Frontier-Kemper Operations Manager. Resp’t Br. 21.[11]

The Court finds that, by the
preponderance of the evidence, the Oak Springs slope hoist was commissioned on
April 1, 2014. The cover page of the Commissioning Report from Frontier-Kemper
states that the hoist was commissioned on April 1, 2014. RX-F at 1. The “Final
Commissioning Checklist” states “Date Completed: 4/1/2014.” RX-F at 8. Chris
Demidovich was present at the commissioning ceremony on April 1, 2014, and
confirmed that “[e]verybody seemed to be satisfied that we [were] okay to put
this hoist in operation.” Tr. 104. Brian Henry, the hoist operator, similarly
stated that he understood the hoist to be operational. Henry Dep. 21. Respondent
also recorded weekly electrical examinations of the Oak Spring slope hoist that
occurred on April 3, 2014, and April 4, 2014. RX-D at 1. Demidovich confirmed
that the electrical exams were performed and recorded. Tr. 109.

Respondent states that Frontier-Kemper
continued to perform tests at the Oak Springs slope hoists and even serviced
the hoist’s brake coil on April 5, 2014. Resp’t Br. 16-17; RX-E. These facts
are stated to provide evidence for the assertion that the commissioning had not
yet occurred. While Exhibit E does show that Frontier-Kemper performed work on
April 1st through April 4th, it also states, on the first line, “April 1, 2014
– Commission Testing and Operational Turn-over.” RX-E. Exhibit E, instead of
supporting Respondent’s argument that operation of the hoist had not yet been
passed to Consol, provides strong evidence that the commissioning was completed
on April 1st.

Additionally, Respondent argues
that Frontier-Kemper had not trained the hoistmen until April 3, 2014, so
Respondent could not have performed the examinations until then because hoistmen
are the ones who perform examinations. Resp’t Br. 16. The Court is unconvinced
by this argument. Respondent would usually have hoistmen perform daily
examinations on the midnight shift at the Enlow slope hoist. Tr. 142. Respondent
had no midnight shift hoistmen at the Oak Springs slope hoist, but that does
not excuse the responsibility to perform daily examinations. Similarly,
Respondent’s failure to either (a) train the hoistmen to perform daily exams or
(b) direct other miners to perform the daily examinations until hoistmen were
trained does not obviate the requirement to perform and record daily
examinations.

For the preceding reasons, the
Court finds that the Oak Springs slope hoist was commissioned on April 1, 2014.
To find otherwise would be to ignore the plain statements of the commissioning
report, Consol’s own witness, Chris Demidovich, the fact that electrical exams
were conducted on April 3, 2014, and the fact that the Oak Springs slope was
being operated by Consol hoistmen. The violation was therefore extensive and
existed for nine days, a substantial period of time.

2.      Whether
the Violation Posed a High Degree of Danger

The Court finds that the violation
posed a high degree of danger. As the Court stated in its S&S analysis, the
Oak Springs slope hoist had several problems during this short time period, a
period in which it was being used to transport miners. Respondent argues that
there was no hazardous miscommunication, which the Court has already addressed;
that none of the conditions were S&S; and that hoist operators would not
have even relied on the daily examination for the operation of the hoist. Resp’t
Br. 23. Insofar as Respondent’s argument relies on hoist operators’ use of the
fault screen or communication with other hoist operators, the Court notes that
Brian Henry stated that he did not remember checking the fault screen before
operating the hoist, that he would not normally check the fault screen, and that
there was no communication with other hoist operators. Henry Dep. 20-21. Hoist
operators’ failure to use tools, such as the daily examination book, to ensure
that the hoist is being operated safely does not mitigate a finding that this
violation posed a high degree of danger. Failing to record daily exams leads to
exams being missed, contributing to the hazard that the hoist will be operated
in an unsafe condition, and miners will be thrown about in the hoist car when
it stops suddenly, either due to the automatic stop controls or when it overtravels
into the top or bottom of the hoist. Given the problems that had already
occurred with the hoist and that it was in use by miners, the violation posed a
high degree of danger.

3.      Whether
the Violation was Obvious

The failure to record exams was
obvious, and Respondent should have noticed that exams were not being recorded.
First, the physical examination book was lying in the open, within reach of the
hoist operator, and it was the same book used for the other hoists, both at
Enlow Fork and at other Consol mines. Tr. 44-45. Members of mine management
were present at the hoist on most of the nine days on which exams were not
recorded. Tr. 158-59. While Respondent argues that the condition was not
obvious because of the confusion surrounding the newly-commissioned hoist, Tr.
22, this confusion does not make the empty examination book any less obvious. Respondent’s
lack of “specific knowledge” does not preclude a finding that the violation was
obvious.

4.      The
Operator’s Knowledge of the Existence of the Violation

The inspector testified that
Respondent did not know that examinations were not being performed, nor did it
know that Frontier-Kemper had stopped performing examinations. Tr. 78-79. The
Secretary argues not that Respondent knew of the violation, but that it should
have known. Sec’y Br. 20. Accordingly, the Court finds that Respondent did not
know of the violation.

5.      The
Operator’s Efforts in Abating the Violative Condition

Respondent, having no knowledge of
the violation, could not have attempted to abate the violation, and the Court
finds that it made no effort to abate the violation.

6.      Whether
the Operator Had Been Placed on Notice that Greater Efforts Were Necessary for
Compliance

Respondent, as a seasoned operator
and as the operator of other slope hoists, was on notice that 30 C.F.R. §
75.1400-4 requires daily examinations to be recorded. Respondent states that
the Secretary “adduced no evidence of past similar violations, of conversations
regarding daily examinations or notice of any type that would serve to put
Consol on notice of the need for greater compliance.” Resp’t Br. 23-24. In
fact, Respondent asserts that “[t]he Secretary presented no evidence that
Consol ever had any issue with respect to daily hoist examinations.” Id.
at 24. While this may not hold true in all circumstances, under the facts of
this case, Respondent’s compliance with the standard at other slope hoists
itself demonstrates that Respondent knew that failing to record daily
examinations would result in noncompliance with the standard. The operator had
been placed on notice that greater efforts (than no effort at all) were
necessary to comply with the standard.

In sum, although Respondent did not
know that exams were not being recorded, the violative condition was
“extensive,” and exams were not recorded for nine days. The violation posed a
high degree of danger, the failure to record the exams was obvious, the
operator made no efforts to abate the violation, and the operator had been
placed on notice that greater efforts were necessary for compliance.

Accordingly, consideration of the
seven factors strongly supports a finding that Respondent’s failure to record
examinations was an unwarrantable failure to comply with a mandatory standard. None
of Respondent’s arguments highlighting the miscommunication, lack of actual
knowledge, and confusion surrounding the commissioning of the hoist are
sufficient to mitigate this finding. While Respondent’s conduct was not
“willful,” that is not a requirement for an unwarrantable failure finding. Here,
Respondent’s actions constituted reckless disregard, indifference, or a serious
lack of reasonable care. Miners were transported in the hoist car, multiple
problems occurred with the hoist, and mine management was in the area almost
every day. It should have been clear that daily examinations were not being
recorded.

iii.           
Respondent Demonstrated a High Degree of Negligence in Violating
§ 75.1400-4

As stated in the Court’s analysis
of Citation No. 7018138, high negligence may be found, in spite of mitigating
circumstances, where an operator evinces an aggravated lack of care that
constitutes more than ordinary negligence. The Court finds that the violation
of § 75.1400-4 was due to high negligence. Respondent was aware that there is a
daily examination requirement for slope hoists, mine management was, by
Respondent’s admission, in the area almost daily, and the empty examination
book was in plain sight.

Section 75.1400-4 plainly provides that daily
examinations be made, certified, signed, and dated. In the instant case,
Respondent failed to record all nine of the daily exams that were required
between the time of the hoist’s commissioning and the inspection. Tr. 46. Multiple
members of mine management were in and around the area. Any of the members of
mine management should have noticed that the book in the hoist house was blank.
Tr. 37. Inspector Tungate testified that the blank record book was lying in the
open, and that it was the same book used by Consol to record daily examinations
at its other hoists, including the other hoist at Enlow Fork Mine. Tr. 44-45.

While Respondent’s Post-Hearing Brief asserts
that the high negligence designation is inappropriate, that statement
constitutes the entirety of its argument on that point. See Resp’t Br.
19-24. The entirety of the argument beneath the applicable heading applies to
the unwarrantable failure designation, but, applied to the consideration of
whether Respondent showed an aggravated lack of care, Respondent’s arguments
are similarly unavailing. The Court has found that the commissioning was
completed on April 1, 2014, and Respondent’s statements about the general
confusion regarding responsibilities does not diminish the fact that mine
management had multiple opportunities to notice and rectify the failure to
record exams, yet failed to do so. Accordingly, the violation noted in Order
No. 7018140 is accurately described as being precipitated by high negligence.

iv.           
Penalty Determination

The parties have stipulated that
Respondent abated the violation in good faith and that payment of the fine
would not impair its ability to continue in business. JX-1. Respondent is large
in size, and does not have a history of this type of violation. The gravity and
negligence of the violation were both high. Accordingly, the originally
proposed penalty for this violation is appropriate. Respondent is assessed a
penalty of $4,000.00 for Order No. 7018140.

III.            
Conclusion

The Secretary has proven, by the
preponderance of the evidence, each of the issues to be addressed at the
hearing. For Citation No. 7018138, Respondent is assessed a penalty of $362.00;
for Citation No. 7018139, Respondent is assessed a penalty of $100.00; and for
Order No. 7018140, Respondent is assessed a penalty of $4,000.00.

IV.            
Partial Settlement

The Secretary has also filed a
Motion for Decision and Order Approving Partial Settlement, which addresses the
13 settled citations contained in Docket No. PENN 2015-41.[12]
The terms of the settlement and the rationale for the settlement of each
citation are contained in the table in Appendix A. The Court has considered the
representations and documentation submitted in this case, finds that the
modifications are reasonable as set forth in the motion to approve settlement,
and concludes that the proposed settlement is appropriate under the criteria
set forth in Section 110(i) of the Act.

WHEREFORE, the motion for
approval of the partial settlement is GRANTED.

ORDER

It is hereby ORDERED that Citation Nos.
7018138 and 7018139 and Order No. 7018140 are AFFIRMED.

It is further ORDERED that Citation Nos.
7027932, 7027716, 7027717, 7027878, 7027718, 7030040, 7030041, 7030042, 7028461,
7028463, and 7030049 are AFFIRMED as modified in the Secretary’s motion
to approve partial settlement, and that Citation Nos. 7028205 and 7028207 are VACATED.

Respondent is ORDERED to pay a total
penalty of $10,500.00 for Docket Nos. PENN 2015-41 and PENN 2015-42 within 30
days of the date of this decision.[13]

/s/ John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

Anthony M. Fassano, Esq., Office of the Regional Solicitor,
U.S. Department of Labor, The Curtis Center, Suite 630E, 170 S. Independence
Mall West, Philadelphia, PA 19106

Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway
Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222

APPENDIX A

Settled and
Vacated Citations in Docket No. PENN 2015-41

Citation/

Order No.

Type/Standard/

Gravity

Proposed Penalty

Settlement

Amount

Settlement and Rationale

7027932

104(a), § 75.503 (failure to maintain electrical equipment
in a permissible manner), S&S, Reasonably Likely, Lost Workdays or
Restricted Duty, 3 Persons Affected, Moderate Negligence.

$687.00

$500.00

Negligence modified to Low.

Reduction in penalty.

Respondent presented evidence tending to show that the
condition had developed after the most recent weekly exam, which occurred
seven days earlier. Accordingly, the Secretary agreed to modify the citation
and reduce the penalty because the negligence may have been less than
initially assessed.

7027716

104(a), § 75.380(d)(4)(iv) (failure to maintain a walkway
with sufficient width to allow disabled persons to quickly exit the mine in
an emergency), S&S, Reasonably Likely, Fatal, 1 Person Affected, Moderate
Negligence.

$540.00

$375.00

Gravity modified to Lost Workdays or Restricted Duty.

Reduction in penalty.

Respondent presented evidence tending to show that the
obstruction in the walkway would slow, but not prevent, a miner’s escape in
the event of an emergency. Accordingly, the Secretary agreed to modify the
citation and reduce the penalty because the expected injury may have been
less severe than initially assessed.

7027717

104(a), § 75.403 (failure to maintain the proper
percentage of incombustible content), S&S, Reasonably Likely, Permanently
Disabling, 2 Persons Affected, Moderate Negligence.

$873.00

$300.00

Likelihood modified to Unlikely/Non-S&S.

Persons Affected modified to 1.

Reduction in penalty.

Respondent presented evidence tending to show that the
area in question did not contain methane or ignition sources. Accordingly,
the Secretary agreed to modify the citation and reduce the penalty because
the likelihood of an injury and the number of persons affected may have been
less than initially assessed.

7027878

104(a), § 75.503 (failure to maintain electrical equipment
in a permissible manner), S&S, Reasonably Likely, Lost Workdays or
Restricted Duty, 5 Persons Affected, Low Negligence.

$425.00

$300.00

Persons Affected modified to 1.

Reduction in penalty.

Respondent presented evidence tending to show that the
miner operator would likely be the only miner affected in the event of an
ignition. Accordingly, the Secretary agreed to modify the citation and reduce
the penalty because the number of persons affected may have been less than
initially assessed.

7027718

104(a), § 75.403 (failure to maintain the proper
percentage of incombustible content), S&S, Reasonably Likely, Permanently
Disabling, 2 Persons Affected, Moderate Negligence.

$873.00

$300.00

Likelihood modified to Unlikely/Non-S&S.

Persons Affected modified to 1.

Negligence modified to Low.

Reduction in penalty.

Respondent presented evidence tending to show that the
area in question did not contain methane or ignition sources. In addition,
Respondent presented evidence tending to show that the condition would not
have been obvious during the time of the most recent exam. Accordingly, the
Secretary agreed to modify the citation and reduce the penalty because the
likelihood of an injury, negligence, and the number of persons affected may
have been less than initially assessed.

7030040

104(a), § 75.605 (failure to clamp a trailing cable to the
machine), S&S, Reasonably Likely, Fatal, 1 Person Affected, Moderate
Negligence.

$1,795.00

$400.00

Likelihood modified to Unlikely/Non-S&S.

Negligence modified to Low.

Reduction in penalty.

Respondent presented evidence tending to show that there
was no damage to the cable in question, and that the condition did not exist
at the time of the most recent exam. Accordingly, the Secretary agreed to
modify the citation and reduce the penalty because the likelihood of an
injury and negligence may have been less than initially assessed.

7030041

104(a), § 75.403 (failure to maintain the proper
percentage of incombustible content), S&S, Reasonably Likely, Permanently
Disabling, 4 Persons Affected, Moderate Negligence.

$3,996.00

$2,313.00

Likelihood modified to Unlikely/Non-S&S.

Persons Affected modified to 1.

Negligence modified to Moderate.

Reduction in penalty.

Respondent presented evidence tending to show that the
area in question did not contain methane or ignition sources. In addition,
Respondent presented evidence tending to show that the condition would not
have been obvious during the time of the most recent exam. Accordingly, the
Secretary agreed to modify the citation and reduce the penalty because the
likelihood of an injury, negligence, and the number of persons affected may
have been less than initially assessed.

7030042

104(a), § 75.360(b)(3) (failure to conduct an adequate
preshift exam on the working sections), S&S, Reasonably Likely,
Permanently Disabling, 4 Persons Affected, Moderate Negligence.

$1,203.00

$750.00

Likelihood modified to Unlikely/Non-S&S.

Persons Affected modified to 1.

Reduction in penalty.

This citation was related to Citation No. 7030041, which
was a 75.403 violation. As explained above, Respondent presented evidence
tending to show that the area in question did not contain methane or ignition
sources, and that the condition would not have been obvious during the time
of the most recent exam. Based on those arguments, the Secretary agreed to
modify the citation and reduce the penalty because the likelihood of an
injury and the number of persons affected may have been less than initially
assessed.

7028205

104(a), § 75.1403 (failure to follow a safeguard),
Non-S&S, Unlikely, Lost Workdays or Restricted Duty, 1 Person Affected,
Moderate Negligence.

$108.00

$0.00

The Secretary has determined that this violation should be
vacated in an exercise of his prosecutorial discretion recognized by the
Commission in RBK Construction, Inc., 15 FMSHRC 2099 (Oct. 1993).

7028461

104(a), § 75.321(a)(2) (failure to maintain the proper
level of oxygen), Non-S&S, Unlikely, Lost Workdays or Restricted Duty, 1
Person Affected, Low Negligence.

$100.00

$100.00

Negligence modified to None.

Respondent presented evidence tending to show that the
results of its most recent oxygen reading were compliant. Accordingly, the
Secretary agreed to modify the citation because the negligence may have been
less than initially assessed.

7028207

104(a), § 75.360(b)(1) (failure to perform an adequate
exam on beltlines), Non-S&S, Unlikely, Lost Workdays or Restricted Duty,
1 Person Affected, Moderate Negligence.

$108.00

$0.00

The Secretary has determined that this violation should be
vacated in an exercise of his prosecutorial discretion recognized by the
Commission in RBK Construction, Inc., 15 FMSHRC 2099 (Oct. 1993).

7028463

104(a), § 75.1725(a) (failure to maintain equipment in
safe operating condition), S&S, Reasonably Likely, Lost Workdays or Restricted
Duty, 1 Person Affected, Moderate Negligence.

$540.00

$300.00

Likelihood modified to Unlikely/Non-S&S.

Reduction in penalty.

Respondent presented evidence tending to show that the
machine in question was using double-braided hoses, decreasing the likelihood
that the condition would cause the hose to burst. Accordingly, the Secretary
agreed to modify the citation and reduce the penalty because the likelihood
of an injury may have been less than initially assessed.

7030049

104(a), § 75.517 (failure to fully protect a power cable),
S&S, Reasonably Likely, Lost Workdays or Restricted Duty, 1 Person
Affected, Moderate Negligence.

$540.00

$400.00

Negligence modified to Low.

Reduction in penalty.

Respondent presented evidence tending to show that the condition
did not exist at the time of the most recent monthly exam. Accordingly, the
Secretary agreed to modify the citation and reduce the penalty because the
negligence may have been less than initially assessed.

[1] The parties settled 13 of
the 15 citations contained in PENN 2015-41. That settlement is approved by the
Court in this Decision and Order, and the terms of the settlement are contained
in Appendix A.

[2] Joint exhibits will be
cited as “JX,” the Secretary’s exhibits will be cited as “GX,” and Respondent’s
exhibits will be cited as “RX.”

[3] The transcript from
Christopher O’Neil’s deposition will be cited as “O’Neil Dep.” The transcript
from Brian Henry’s deposition will be cited as “Henry Dep.”

[4] At the time of the
hearing, Chris Demidovich had worked for Consol at Enlow Fork Mine for thirteen
and a half years. Tr. 94. During that time period, he had been a mechanic,
maintenance foreman, maintenance supervisor, and senior electrical supervisor. Tr.
94-95. Prior to working at Enlow Fork, he performed maintenance at Dana Mining
for four years. Tr. 95. He holds a Pennsylvania bituminous mining certification
as a miner and is a Pennsylvania certified electrician. Tr. 95. In March and
April of 2014, Demidovich was a maintenance supervisor. Tr. 96. His
responsibilities included overseeing other mechanics, performing preventative
maintenance, and ensuring generally that machines were in safe operating
condition and permissible. Tr. 96.

[5] O’Neil had worked for
Consol Energy since graduating from college in 1995. O’Neil Dep. 4. He worked
as an industrial engineer, shift maintenance foreman, electrical engineer,
longwall maintenance coordinator, master mechanic, general maintenance
mechanic, and assistant manager of maintenance. O’Neil Dep. 4. When he was deposed,
he was currently working as the assistant manager of maintenance of the Consol
Pennsylvania operations. O’Neil Dep. 4, 5. He has a B.S. in electrical
engineering technology and a Master’s in Business Adminstration. O’Neil Dep. 5.
He also has a federal electrician certification and an MSHA instructor
certification for Part 48. O’Neil Dep. 5. As assistant manager of maintenance,
his duties and responsibilities included involvement with underground, surface,
and plant equipment, including the purchase of equipment and assuring written
specifications are met. O’Neil Dep. 6. With reference to hoist installation,
O’Neil acts as a liaison between Consol and the State of Pennsylvania,
including facilitating the approval process. O’Neil Dep. 6.

[6] Brian J. Henry also gave
testimony by deposition subsequent to the hearing. Henry had been employed as a
hoistman at Enlow Fork Mine since 2013 and had worked for Consol for 10 years. Henry
Dep. 7-8. His past jobs included mine operator, mine side bolter, loader operator,
and motorman. Henry Dep. 7. He was a certified hoistman and had been paid on an
hourly basis at the time of the written citation and order. Henry Dep. 7-8.

[7] A slope pump is a pump
midway down the shaft that must be examined to make sure it is in permissible
condition. Tr. 110.

[8] Shane Jobes was the
outside shop and maintenance foreman at Enlow Fork Mine at the time of the
hearing and in April of 2014. Tr. 149. He had worked at Enlow Fork Mine since
September 2013, and before that was with engineering and maintenance groups
with Consol since 1998. Tr. 147. He started working for Consol at the Bailey
Prep plant in 1991, just after he graduated from West Virginia Institute of
Technology, where he received a bachelor’s in engineering. Tr. 149. His duties
included repairing broken parts in the maintenance shop and sending away broken
parts to get repaired. Tr. 149.

MSHA Inspector Jason Tungate
appeared and testified on behalf of the Secretary. Tungate’s duties as an
inspector included the inspection of hoists and elevators at mines and
approving shaft and slope plans. Tr. 21. He had worked for 5 years with MSHA as
an electrical specialist and an additional 4 years as a general inspector. Tr.
21-22. Prior to working for MSHA, Tungate had worked as an underground
electrician, mine supply contractor, and general laborer. Tr. 24. He possessed
an Associate’s degree in electrical engineering. Tr. 25. Tungate was familiar
with Enlow Fork, having both inspected and worked at the mine. Id.

[9] Respondent’s “plain language”
argument is reminiscent of that rejected by the Commission in Watkins
Engineers & Constructors, 24 FMSHRC 669 (July 2002). The operator in
that case argued that 30 C.F.R. § 56.15005, which requires that “[s]afety belts
and lines shall be worn when persons work where there is danger of falling,”
does not require that “such belts and lines be used or ‘tied off.’” 24 FMSHRC
at 681. The Commission disagreed with this reading, and instead cited to its
statement in a similar case that “[a]lthough a literal reading of the standard
might suggest that compliance is achieved whenever a miner wears any kind of
line in any manner, such an interpretation is inconsistent with the [safety
enhancing] purposes of the Part 57 regulations and this standard in particular.”
Id. at 682 (quoting Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov.
1981)) (alterations in original). Similarly, stop controls that are
non-functioning and unable to serve the purpose for which they are “equipped”
do not meet the requirements of 30 C.F.R. § 77.1401.

[10] The Commission has
stated that ALJs are not bound by the Secretary’s negligence definitions in
Part 100, see, e.g., Wade Sand & Gravel, 37 FMSHRC at 1878
n.5, but the Court finds the Secretary’s definitions of low and no negligence
to be appropriate in this case.

[11] At O’Neil’s deposition,
Respondent moved to admit into evidence two different copies of the Commission
certification document, designated Exhibits C and C-1. Exhibit C, containing
O’Neil’s signature, was offered without objection. That exhibit is hereby
admitted. The Secretary objected to the admission of Exhibit C-1, which
contained the signatures of both O’Neil and Cundiff, on the basis that the
Secretary had not been provided with the exhibit until July 23rd, nine days
after the hearing in this case and just one day before the deposition. O’Neil
Dep. 15-16. The document differs from the one provided in discovery and the one
identified in Respondent’s prehearing report. O’Neil Dep. 16. Respondent
asserted that the document had been provided to him late, and he offered to
provide the email sending him the document. O’Neil Dep. 16. The Court’s Notice
of Hearing, issued February 24, 2015, stated that “a list of exhibits expected
to be introduced” must be provided to the other party and to the Court on or
before June 12, 2015. Failure to do so, it warned, may result in that exhibit’s
exclusion at the hearing. Respondent has offered no good reason why the exhibit
was not identified in the prehearing statement since it was available over a year
prior to the date prehearing statements were due. Accordingly, the Secretary’s
objection is sustained, and Respondent’s Exhibit C-1 is not admitted into
evidence.

[12] Pursuant to 29 C.F.R. §
2700.1(b) and Fed. R. Civ. P. 12(f), the Court strikes paragraphs three and
four from the Secretary’s Motion as immaterial and impertinent to the issues
legitimately before the Commission. The paragraphs incorrectly cite and
interpret the case law and misrepresent the statute, regulations, and
Congressional intent regarding settlements under the Mine Act. Instead, I have
evaluated the proposed settlement in accordance with sections 110(i) and 110(k)
of the Act.

[13] Payment should be sent
to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT
OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390.