Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

Consol Pennsylvania Coal did not dispute three violations at the Harvey Mine but challenged whether they were significant and substantial. One violation involved missing reflectorized signs required to warn miners about unsupported roof, and two involved badly damaged hoisting cables left available for use. The Commission held that hanging mesh and fallen debris were not acceptable substitutes for the roof-control plan's required reflective warnings. It also found that miners could try to use the untagged damaged cables, exposing nearby workers to snapping cables, falling loads, and serious injuries. Substantial evidence supported the Judge's findings, so the Commission affirmed all three significant-and-substantial designations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1) and 75.1725(a); 30 U.S.C. § 814(d)(1)
• Outcome: The significant-and-substantial findings for all three citations were affirmed.
• Key point: Other visible conditions did not replace required roof warnings, and damaged cables remained hazardous when equipment was left available for use.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY
OF LABOR,                             :                    

MINE
SAFETY AND HEALTH                   :                                            

ADMINISTRATION
(MSHA)                      :

:

v.                                              
:         Docket No. PENN 2018-0169

:                                

CONSOL
PENNSYLVANIA COAL              :

COMPANY, LLC                                          :                                            

BEFORE: Traynor, Chair; Althen and Rajkovich,
Commissioners

DECISION

BY THE COMMISSION:

This proceeding,
which arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act” or “Act”), involves three citations issued to Consol
Pennsylvania Coal Company, LLC (“Consol”) by the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”). The first citation alleges that the
operator committed a significant and substantial (“S&S”) [1] violation of
its MSHA-approved roof control plan under 30 C.F.R. § 75.220(a)(1) when it
neglected to place reflectorized signs at a face entry warning of unsupported
roof. The second and third citations allege that the operator committed S&S
violations of 30
C.F.R. § 75.1725(a) for failing to maintain hoisting cables on two machines in
safe operating conditions.

Consol
did not contest the fact of violation for any of the citations, but instead
challenged the S&S findings. After a hearing on the merits, a Commission Administrative
Law Judge issued a decision affirming the S&S findings for each citation. 41 FMSHRC 626 (Oct. 2019) (ALJ).

Consol
filed a petition for discretionary review of the decision challenging the
Judge’s S&S findings, which we granted. For the reasons discussed below, we
affirm the Judge’s decision regarding each of the citations.

I.                

Citation No. 9076610

A.     Factual Summary

On January 4,
2018, MSHA Inspector James Baker arrived at the Harvey Mine to perform a spot
inspection. As the inspector examined an entry, he observed that a pile of
debris with rocks
the “size of large garbage cans” had fallen inby the last roof support. The pile of debris
measured about two to three feet in height. [2]
Baker
noticed that the unsupported roof was in “very poor shape,” and that
non-reflective, white, Tensar mesh was used to control loose debris as mining
progressed. Sec’y Br. at 4; Tr. 19, 24. At the time, the mesh was rolled up to
the last roof strap and was left hanging. [3]
He did
not see any reflectorized signs warning of unsupported roof in the entry, in
violation of Consol’s
roof control plan (“RCP”), [4]
which requires that the operator place reflectorized signs on each side of all
entries to the face. [5]
Sec’y Resp. Br. at 3-4; Tr. 18-19, 22, 24.

As a result, Baker issued
Citation No. 9076610 for failure to utilize reflectorized warning signs immediately
outby unsupported roof in the No. 2 entry, in violation of the mine’s roof
control plan under section 75.220(a)(1) of the Secretary’s regulations. Section
75.220(a)(1) states that: “Each mine operator shall develop and follow a
roof control plan, approved by the District Manager, that is suitable to the
prevailing geological conditions, and the mining system to be used at the mine.
Additional measures shall be taken to protect persons if unusual hazards are
encountered.” 30 C.F.R. § 75.220(a)(1).

B.     The
Judge’s Findings

T he Judge stated that
“[t]he purpose of the reflectorized signs is [to] keep miners from going under
the unsupported roof.” 41 FMSHRC at 632. He also recognized the continued hazard
posed by the roof fall that had already occurred. The Judge also identified the
danger posed by additional material falling, rolling down the pile of debris,
and striking a nearby miner. Id. at 636.

The Judge rejected
the operator’s contention that the hanging mesh was a suitable alternative to a
reflectorized sign. He found it compelling that the RCP does not provide that the
hanging mesh can serve as an alternative to reflective signs. Instead, the
Judge noted that under the RCP, the purpose of the hanging mesh is to be rolled
out on the roof as roof bolts and straps are being installed. The mesh is not
meant to serve as a warning device. Additionally, he observed that there was no
testimony that the mine had instructed its employees that mesh extending down
from the roof was to alert them that unsupported roof was beyond that point. Id.

The Judge further rejected
the idea that the pile of fallen rock and coal also served as a warning barrier.
Instead, the Judge saw it as a graphic demonstration of the danger involved in
the hazard, thus underscoring the importance of the reflective signs. He
reasoned that the pile was proof that roof had in fact fallen, and because of
this, the Judge took issue with Consol’s assertion that this obviously
hazardous condition somehow “diminish[ed] the S&S determination.” Id .

The Judge ultimately found
that the lack of reflectors presented a discrete safety hazard by the absence
of a genuine warning that unsupported roof was ahead. He found that roof falls,
across the board, are a continuing threat in underground mining, and that in
the current case, the roof did in fact fall. The Judge concluded that a roof fall
“without qualification, is reasonably likely to cause injury,” and that it is a
given that any roof fall presents a reasonable likelihood that the injury in
question will be of a reasonably serious nature. Id . at 637.

C.     Analysis

The Commission has
recognized that a violation is S&S if, based on 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. See Cement Div., Nat’l Gypsum Co ., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co ., the Commission further explained:

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.

6 FMSHRC 1, 3-4 (Jan. 1984) (footnote
omitted); accord Buck Creek Coal, Inc . v. FMSHRC , 52 F.3d 133,
135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor , 861 F.2d 99,
103 (5th Cir. 1988) (approving Mathies criteria).

Under the
Commission’s Mathies test, it is the contribution of the violation at
issue to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co ., 6 FMSHRC 1834, 1836 (Aug. 1984). In
evaluating that contribution, it is assumed that normal mining operations will
continue. See U.S. Steel Mining Co ., 6 FMSHRC 1573, 1574 (July
1984); see also U.S. Steel Mining Co ., 7 FMSHRC 1125, 1130 (Aug. 1985). The
Commission has held that the S&S inquiry considers “the violative
conditions as they existed both prior to and at the time of the violation and
as they would have existed had normal operations continued.” Mach Mining,
LLC v. Sec’y of Labor , 809 F.3d 1259, 1267 (D.C. Cir. 2016), quoting
Knox Creek Coal Corp ., 36 FMSHRC 1128, 1132 (May 2014); see also McCoy
Elkhorn Coal Corp ., 36 FMSHRC 1987, 1991 (Aug. 2014). The second step of Mathies
requires a determination of whether, based upon the particular facts
surrounding the violation, there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is
directed. Newtown Energy, Inc ., 38 FMSHRC 2033, 2037-38 (Aug. 2016); Mach
Mining , 40 FMSHRC at 3–4. [6]

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. U.S.
Steel Mining , 6 FMSHRC at 1574; Gatliff Coal Co. , 14 FMSHRC 1982,
1986 (Dec. 1992). The Court cannot assume that miners would exercise caution. The
hazard continues to exist regardless of whether caution is exercised, and the
operator’s responsibility is not lessened. Eagle Nest, Inc ., 14 FMSRHC
1119, 1123 (July 1992). Additionally, “[b]ecause redundant safety measures have
nothing to do with the violation, they are irrelevant to the significant and
substantial inquiry.” Cumberland Coal Res., L.P. v. FMSHRC , 717 F.3d 1020 , 1029 (D.C. Cir. 2013); see also Buck
Creek , 52 F.3d at 136.

The
first element of Mathies has been satisfied here as Consol does not
contest the fact of violation. However, Consol argues that the Judge failed to
substantiate the second element of Mathies because he misidentified the
potential hazard resulting from an absent reflector as material falling from
the roof and rolling off the pile of coal and rock. It contends that the only hazard
that the standard was designed to protect against is a miner walking under
unsupported roof.
Obviously,
the fact that no one had been identified as going under unsupported roof on
this specific day does not negate the danger of falling roof or that a miner on
a break would not be reasonably likely to cross the threshold.

Consol
also argues that in
addition to the ventilation curtain and wedge cut, the physical barrier of the
roof mesh and the large pile of rocks and coal across the entire entry, as
depicted in the inspector’s notes, clearly indicated the location of the last
row of permanent roof support. It contends that the pile of coal and
rocks and the roll of Tensar mesh hanging from the roof created a physical
barrier to prevent a miner from going into the hazardous area.

The
roof
control plan expressly mandates that the operator place reflectorized signs in
all entries to the face to alert miners of bad roof. As noted by the Judge,
Consol’s roof control plan, which is enforceable as a mandatory standard, does not allow
for other mechanisms to substitute for the reflectorized signs. 41 FMSHRC at
636; Martin
Cty. Coal Corp. ,
28 FMSHRC 247, 254-255 (May 2006). The mesh and debris from an earlier roof
fall are not acceptable substitutes for the roof control plan’s requirement for
reflective warnings. U nlike
the non-reflective Tensar mesh and other conditions highlighted by Consol, the
reflectorized signs are particularly noticeable in dark, underground mines. Specifically,
a miner’s cap light would reflect brightly off of the signs, thereby enabling
the miner to see them. 41 FMSHRC at 632. The signs are a designated visual
signal to alert miners of dangerous unsupported roof and to prompt them to stay
a safe distance from the hazard. The Judge reasonably found that the absence
of reflective signs contributed to the reasonable likelihood of the hazard of
miners being exposed to roof fall injuries, as they might not know to keep from
the area. [7]

The Judge also
reasonably found that none of the conditions created a barrier to entry. 41
FMSHRC at 636, 638 (determining that “rock had fallen, creating an impediment,
but not a barrier”). The mine’s safety inspector, Albert Stein, described the
pile as “two to three feet” in height and “just like a little hump.” Tr. 401. The
height of the entry was about eight to eight and half feet high, which would
leave five to six feet of clearance.  Tr. 400, 402.

Additionally, the MSHA
inspector expressed justifiable concern that the reflectors would not be there
to warn a less experienced miner who might attempt to enter the area to get the
curtain or extra tubes. See 41 FMSHRC at 633. This is compelling as
there may be numerous miners in the area with varying levels of experience
getting the face ready for the next cut. Element two of Mathies is thus satisfied.

With
respect to Step 3, the inspector determined that in addition to miners, an
examiner would be exposed to this hazard twice per shift—during the pre-shift
and on-shift examinations. Id. at 632.

Inspector
Baker testified that, based on the fallen rock he saw on the ground, an injury
“could be real bad” if a miner were in the unsupported area and something were
to fall. Tr. 26. Characterizing the potential injury as “serious,” the
inspector stated that it could result in a broken neck or a broken back. Tr.

28. As the circumstances present ample opportunity for a miner to find himself
    in close proximity to the unsupported roof and to suffer serious injury, the
    Judge reasonably concluded that it would be of a reasonably serious nature.

We
affirm the finding that the violation was S&S.

II.             

Citation No. 9077085

A.     Factual Summary

On January 6,
2018, MSHA Mine Inspector Bryan Yates performed an inspection at the Harvey
Mine. While inspecting the advancing section, he saw a Caterpillar duckbill
battery scoop used to transport supplies parked on the Number 2 track entry. The scoop has a
winch located just behind the scoop bucket used for loading and moving heavy
longwall components, including longwall shields that weigh approximately 22
tons, onto
the duckbill scoop. The
winch uses a one-inch diameter steel cable that wraps around a spool
approximately one foot in diameter sitting in a two-foot wide housing. The cable is
extended towards equipment being loaded and secured with a large stabilizing
hook, which anchors the cable to the reel.

Yates noticed that
the winch cable was badly damaged. It had broken strands, several kinks, and multiple
frays sticking out. Ex. P-3A; 41 FMSHRC at 639.  The stabilizing hook
connecting the cable to the reel was broken, resulting in the cable no longer being
connected to the reel, but merely wrapped around the reel. 41 FMSHRC at 643. He
also noticed scratches in the scoop bucket. Id. The scoop had not been
removed from service. Id. at 645. Yates issued Citation No. 9077085 on
the basis that the winch cable was not being maintained in safe operating
condition and had not been removed from service in violation of section
75.1725(a). 

Section 75.1725(a) states
that: “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).

B.     The
Judge’s Findings

The Judge affirmed
the Secretary’s S&S determination. Finding Consol’s argument “unusual,” he
rejected the operator’s position that the cable was in such poor condition that
it was not useable. 41 FMSHRC at 645. Instead, relying on Yates’ testimony, the
Judge accepted that a miner attempting to use the damaged winch cable would be
exposed to two discrete safety hazards: the cable snapping under the weight of
a load, whiplashing, and striking a nearby miner due to the tension on the
cable; and the load itself dropping and striking a miner. The Judge concluded that
the obvious hazard is that a cable in this undisputedly poor condition can
break and an injury could result in such an event.

The Judge found it compelling
that the cable had not been removed and the equipment was not tagged out of
service, thereby leaving it available for use. He also credited the inspector’s
testimony that the cable was the source of the scratches in the bucket, which
established that it was being used in its damaged state. Based on the
circumstances and credible evidence, the Judge determined that this situation
was “an accident waiting to happen.” Id .

C.     Analysis

Consol concedes
the fact of violation, but maintains that the violation was not S&S. It
argues that the rope cannot break if it cannot be used, and if it cannot be
used, it is not reasonably likely to contribute to a hazard. It is Consol’s
position that because the rope was no longer attached to the winch reel, any
tension put on the rope would simply cause the winch reel to free spin. Pointing
to the testimony of Harvey Mine Safety Inspector Chase Shaffer, it contends
that the rope is not long enough to wrap on itself to create an anchor point,
and that the inspector did not conduct any tests to demonstrate his unsupported
theory, which Consol asserts is “mere speculation.” PDR at 9-10; Consol Reply
Br. at 13.

We disagree. Substantial
evidence supports the Judge’s finding of S&S. The Judge identified the
obvious safety hazard as the damaged cable breaking and causing injury to
nearby miners. 41 FMSHRC at 645. In relying on the inspector’s testimony, the
Judge determined that this hazard could occur in one of two ways. If the
severely damaged cable was used to pull heavy equipment, the tension could
cause the equipment to drop and hit a nearby miner or cause the cable to snap,
whiplash, and hit a miner. As support for the latter, Yates recounted a prior
incident he witnessed where a miner had several bones in his face broken and
was knocked unconscious after he was slapped in the face by a scoop cable that
snapped and whipped back, hitting the miner who happened to be standing in the
vicinity.

Additionally, the Judge did not accept Consol’s argument that
the reel would just free spin . Inspector Yates
testified that if the cable is wrapped two to three times around the spool,
with sufficient tension it would create a “binding” effect that would render
the anchor point meaningless and it could sufficiently pull a load. Tr. 91-92. He
stated that the anchor point on the reel is not made for tension and that the
wrapped cable is part of the anchoring. Tr. 92-93. As for the length of the cable,
according to Yates: “They use very long chains to hook onto stuff, so the rope don’t
have to go all the way to it. You meet the rope with the chain.” Tr. 90. He
further noted that you could simply take the hook and hook it to the chain. The
Judge found the inspector’s testimony credible. The Commission has long held
that a Judge’s credibility determination is entitled to great weight and may
not be overturned lightly. See Farmer v. Island Creek Coal Co .,
14 FMSHRC 1537, 1541 (Sept. 1992);  Penn Allegh Coal Co ., 3 FMSHRC
2767, 2770 (Dec. 1981); Bussen Quarries, Inc ., 39 FMSHRC 970, 974 (May
2017).  

Moreover, Consol’s
contention that the cable was not suitable and therefore would not be used, erroneously
presumes that any miner attempting to utilize the cable would see its condition,
surmise it unsafe for use and not use it. The miner could see the damage,
simply decide it is not that bad and use it anyway. This is particularly so if the
miner approaches the machine with the assumption that equipment unsuitable for
use would have already been removed from service. Thus, there is a significant
chance that a miner would not discover the cable to be unusable until an
attempt to use it. By that time, the damage would be done.

We conclude that
the damaged cable presented a discrete safety hazard and that it was reasonable
for the Judge to rely on the experienced inspector’s testimony. [8] We have recognized
that an inspector’s judgement is an important element in an S&S
determination, and a Judge is well within bounds to credit the opinion of an
experienced MSHA inspector that a violation is S&S. Buck Creek , 52
F.3d at 135 (“the ALJ certainly did
not abuse his discretion here in crediting the opinion of [the] Inspector.”); Harlan
Cumberland Coal Co ., 20 FMSHRC 1275, 1277 (Dec. 1998) (“We see no basis for overturning the
judge’s crediting of the first-hand observations of [the inspector] over the
testimony of Harlan’s safety director.”).

We also find that
there is ample evidence to support the finding that the hazard was reasonably
likely to result in an injury. [9]
Inspector Yates gave undisputed testimony that the scoop operator often works
with another miner who directs travel in low visibility conditions, but who is
situated outside of the scoop, in the entry or crosscut. Additionally, he noted
that there were three other miners working nearby. Tr. 78-79; 41 FMSHRC at 644.
We conclude that other miners in the entry would still be exposed to the hazard
of a whiplashing or snapping cable. Although Consol argues that its miners are
trained to stay out of red zones, we have found that an operator cannot attempt
to claim mitigation regarding S&S when it rests upon the assumption that
miners would stay out of red zones or otherwise exercise caution. Eagle
Nest, 14 FMSHRC at 1123. 

Consol further
contends that the inspector never saw the cable used in the manner alleged or otherwise
demonstrated by his theory. It points out that the scoop is constantly used and
for a variety of tasks. Consol maintains the scratches in the bucket could have
occurred in any number of ways, “including the use of an undamaged rope or the
rope bouncing around in the spool as the scoop is used.” PDR at 10; Consol
Reply Br. at 13.

In light of the
photographic evidence, however, the Judge found the inspector’s inference reasonable
that as the cable is extended and retracted, the frayed metal strands will rub
on the inside of the winch housing causing scratches each time it comes on and
off, establishing use. 41 FMSHRC at 645. Yates stated that these scratches do
not occur when a cable in good condition is used. He also did not agree that
the scratches could have developed simply in the normal rolling up of the
cable, because there were too many of them and such marks do not occur in the
normal process of rolling up the cable. Id. at 641. Yates testified that
he believed friction from frayed strands was “absolutely” how the scratches
occurred. Tr. 74-75. He also noted that Consol could not explain why the scoop
was left in that condition and that he was aware that they were setting up a
new longwall face in the 4A section. Tr. 80. The Judge reasonably found the
inspector’s testimony credible.

Accordingly, we
affirm the finding of S&S.

III.           

Citation No. 9077091

A.     Factual Summary

On January 19,
2018, Inspector Yates found the Venturo lifting device on a Brooksville jeep badly
damaged. The
lifting device is essentially a small crane on the back of a mantrip with a lifting
capacity of about 1,600 pounds. Tr. 150. Miners use the lifting device to
vertically lift and lower longwall components, such as motors, pumps, and
jacks. Tr. 154-55, 412. The device uses a small winch with a wrapped stainless-steel
cable that spools out 10-15 feet when being used and is meant to be
operated from a distance. Tr. 150-51, 187, 414. There is a metal hook at one end
of the cable that hooks onto a load. When a load is hooked, the jeep then
travels down the track and loads equipment in or out of a scoop. 41 FMSHRC at 658,
660.

As Yates approached the jeep,
he saw tape wrapped around the cable, which he removed to see what was
underneath. He saw two to three feet of the original cable broken off from the
hook, but with the hook still attached to the other end of the cable. The cable
was frayed with broken and loose strands. The non-hooked end of the cable was
looped back through the hook and braided back into the cable and then wrapped
with black tape. The damaged cable had not been removed and the jeep had not
been locked and tagged out. 41 FMSHRC at 659. The jeep, which is
pre-operationally inspected once a week, was located in the track
shoot at the bottom of Patterson Creek portal, in the crosscut between entries,
where miners park their rides. [10] It was
not in use and the winch controller was disconnected from the power source. Yates
issued Citation No. 9077091, asserting another violation of section 75.1725(a)
because the lifting device on the jeep was not maintained in safe operating
condition. 41 FMSHRC at 658.

B.     The
Judge’s Findings

The Judge determined that this
violation was S&S. Relying on the inspector’s testimony, he identified two
hazards presented by this condition, the cable snapping back and a load
dropping. He concluded that the twin discrete safety hazards presented a clear
measure of danger to safety. The Judge found that the jeep was not locked or
tagged out and was available for use. 41 FMSHRC at 664. He accepted the
inspector’s testimony, as credible, that the cable had been used in its
improper condition, since the defect was discovered at the end of a shift. Accordingly,
the Judge rejected Consol’s position that the cable was not functional, posing no
hazard. He reasoned that it was insufficient for Consol to depend on miners
adhering to their safety training, especially as in this case, with an
inadequate attempt at repair for an insufficient cable. He also rejected
Consol’s reliance on its preoperational check policy, since the improper
attempt to secure the cable was insufficient, intentional, and contrary to that
policy. Id.

C.     Analysis

Just like the previous
citation, this violative condition exposes miners to the discrete safety
hazard of the cable breaking and causing injury to nearby miners. Specifically,
injury may occur if the cable snaps under the weight of a load, whiplashes, and
strikes a nearby miner, or if the load itself drops and strikes a miner—both creating
a clear measure of danger to safety. 41 FMSHRC at 664; Tr. 162, 184.

Consol maintains that
this winch cable was unsuitable for use and that the two hazards cited by the
Judge were unlikely occurrences. It maintains that the inspector’s conclusion was
wholly speculative. It asserts that “[c]ommon sense dictates” that if the
lifting device was used in this condition, the taped area would come apart and
the rope would retreat into the spool, and there would be no whiplash. PDR at 29.
It also argues that it trains its miners to stay out of red zones and to use
the controller when operating the lift.

We, again, are not
persuaded by these arguments. First, Consol suggests that the cable retreating
into the spool is the only possible outcome if it is used in the damaged
condition. The inspector pointedly disagreed with Consol and maintained that
the cable would not retreat into the spool but would, instead, whip around at
random. Second, even if Consol were correct that the cable was not capable of
lifting anything, it erroneously presumes that a miner will look at the inadequately
repaired cable, reach that same conclusion, and then decide not to use it. It
is insufficient to depend on its miners resting on their safety training “about
risks for cable failure,” to keep them safe. See 41 FMSHRC at 664. Our
history, unfortunately, is replete with well-trained, but injured, miners.

Moreover, the
damaged portion of the cable was covered with black tape, which as the Judge
noted, served to hide the inadequate fix, thus preventing miners from seeing
the full extent of the damage. 41 FMSHRC at 664; see also Sec’y Resp. Br.
at 7 (“With the black tape over it, the repair attempt was less visible.”). This
is further compounded by the fact that the jeep was not locked or tagged out of
service, so there was nothing warning miners against powering the jeep and
using the winch cable in its damaged condition. A miner could see the patch job
done to the cable and assume that because it is patched and not tagged out of
service, the cable is suitable for a quick, occasional or light use until it
gets replaced.

Consol counters
that “most likely” the rope was or “appeared to be” tied and taped up simply to
avoid losing the hook and to keep the rope from being pulled back into the
boom. PDR at 10, 29. It argues that electrical tape and a modest tie job were
not going to allow the rope to be used to lift a load. Consol also points out
that the controller must be connected to a power source to operate the boom and
lifting device, which it was not. 41 FMSHRC at 661. We find this theory
unavailing.

Consol presented
no evidence, particularly testimony from any miner having direct knowledge of
the taped cable, in support of this assertion. Neither the winch apparatus nor
the jeep was locked out or removed from service for the purpose of initiating
repairs. We also find compelling Inspector Yates’ opinion that the improper
repair took time and the only reason to invest such time is if one intended to
use it. He stated that “you wouldn’t do that if you was going to take it out of
service. You would have left it broke. You would have threw it inside of the
mantrip and went on back.” Tr. 159. Consol presented no rebuttal evidence.

We further conclude
that the controller being disconnected from a power source does not constitute
a deterrent or impediment. One would simply need to connect the jeep to a power
source in order to use the damaged cable.

Just like the
previous citation, the Judge found that either hazard could reasonably be
expected to cause cuts, broken bones, contusions, and even amputations, in the
event of a falling load or whiplashing cable, and the injuries would be of a
reasonably serious nature. 41 FMSHRC at 659, 664. We conclude that the Judge’s
S&S finding here is reasonable and this citation is affirmed.

IV.

Conclusion

Based on the
record evidence and the Judge’s credibility determinations, we conclude that
substantial evidence supports the Judge’s S&S findings regarding each of
the above citations. Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096, 1104 (D.C. Cir. 1998) (noting that the
“sensibly deferential” substantial evidence standard of review does not
allow the court to reverse reasonable findings and conclusions, even
if it would have weighed the evidence differently);
Donovan on Behalf of Chacon v. Phelps Dodge Corp ., 709
F.2d 86, 92 (D.C. Cir. 1983) (finding that it
was error for the Commission to “substitute a competing view of the facts for
the view the ALJ reasonably reached”).

Accordingly, w e affirm the Judge’s decision in all
respects.

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I.
Althen

William
I. Althen, Commissioner

/s/
Marco M. Rajkovich, Jr.

Marco M.
Rajkovich, Jr. ,
Commissioner

Distribution
(by e-mail):

James
P. McHugh, Esq.

Hardy
Pence, PLLC,

10
Hale Street, 4th Floor

PO
Box 2548

Charleston,
WV 25329-2548

[email protected]

Andrew
R. Tardiff, Esq.

U.S.
Department of Labor

Office
of the Solicitor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5450

[email protected]

Archith
Ramkumar, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Administrative
Law Judge William Moran

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

[1] The S&S
terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),
which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a … mine safety or health
hazard.”

[2] He
did not measure the rock since that would entail going under unsupported roof. Tr.
20.

[3] While the
inspector and the operator’s witnesses varied slightly in their estimates of
the roof height and length of hanging Tensar mesh, those differences are not
material to this decision.

[4] The roof control
plan was not submitted into the record by either party. As such, we must rely
on the parties’ consistent and undisputed testimony regarding the official
requirements of the plan.

[5] The section
foreman had conducted an onshift inspection of the area only 47 minutes prior
to Baker’s inspection and had not noted the lack of reflective signs. 41 FMSHRC at 632 .

[6] Chairman Traynor
believes that Newtown Energy, Incorporated was wrongly decided. He signs
this majority opinion because he believes that the elevated burden of proof
required by the Commission in Newtown Energy and its progeny is of no
consequence in this particular proceeding. All Commissioners agree that
substantial evidence supports the Judge’s conclusion that these specific
violations are S&S.

[7] Because we affirm
the Judge’s finding that the Tensar mesh did not serve as a substitute safety
warning, we need not consider the Judge’s additional finding that the Tensar
mesh was a redundant safety measure that could not be considered.

[8] Inspector Yates
has approximately 20 years of mining experience. He has previously worked as a
scoop operator and shuttle car operator and was formerly a cargo specialist in
the army where he operated heavy equipment, including cranes and forklifts and
had experience using and inspecting winch cables. Tr. 58-59.

[9] Although the Judge
stated that the violations in Citation Nos. 9077085 and 9077091 were “at least
somewhat likely to result in harm” (41 FMSHRC at 645, 664), he cited to and
applied the correct Commission standard, which requires that the violation be “ reasonably
likely” to result in injury. Id. at 627, 645, 664; s ee Cement Div.,
Nat’l Gypsum Co .,
3 FMSHRC 822, 825 (Apr. 1981) (emphasis added).

[10] Although Consol ’ s safety inspector Albert Stein testified that the last
pre-op examination of the jeep was the day before the citation was issued,
Consol’s counsel indicated at trial that Stein’s testimony was inconsistent
with the pre-operational inspection records and sought to admit the records. The
Judge rejected admission of the records on the ground that Consol had failed to
disclose them to opposing counsel prior to trial. Tr. 416 -19.