Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

MSHA cited Consol Pennsylvania Coal for ten conditions at Bailey Mine, including damaged high-pressure hoses, combustible accumulations, improper battery-station ventilation, an electrical control box, and unsupported roof. Judge Jacqueline Bulluck found the accumulations and battery-ventilation violations significant and substantial and affirmed those two citations as issued. She found the hose, electrical-box, and roof-support violations non-S&S, reduced negligence for the hose and roof citations to low, and assessed $4,150 for the five adjudicated citations. The judge also approved a settlement reducing five other citations from $3,658 to $2,005 and modifying their gravity, negligence, or cited standard as agreed. Consol was ordered to pay a total of $6,155, compared with $11,067 initially proposed for all ten citations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(a), 75.400, 75.340(a)(1)(i), 75.512, 75.202(a), and 75.517
• Outcome: Two citations were affirmed as issued, three were affirmed as modified, five were modified by settlement, and total penalties were set at $6,155.
• Key point: S&S analysis turned on realistic miner exposure and continued mining conditions; backup safety systems did not negate hazards from combustible accumulations or improperly ventilated battery charging.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9954

March 27, 2020

SECRETAR Y O F LABOR                                   :                 CIVIL
PENALTY PROCEEDINGS

MIN E SAFET Y AN D
HEALTH                       :    

ADMINISTRATIO N
(MSHA),                         :                 Docket No. PENN 2018-0243

Petitioner                                      :                 A.C.
No. 36-07230-467980

:

v.                                                   :                 Docket
No. PENN 2018-0255

:                 A.C.
No. 36-07230-470217

CONSOL
PENNSYLVANIA COAL CO., LLC,  :                

Respondent                                    :                 Bailey
Mine

DECISION

Appearances:              Matthew
R. Epstein, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;

James McHugh,
Esq., Hardy Pence PLLC, Charleston, West Virginia, for Respondent.

Before:                        Judge
Bulluck

These
cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health
Administration (“MSHA”), against Consol Pennsylvania Coal Company, LLC (“Consol”),
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977
(“Mine Act”), 30 U.S.C. § 815(d). The Secretary seeks a total penalty of $11,067.00
for ten violations of his mandatory safety standards. [1]

A
hearing was held in Pittsburgh, Pennsylvania. The following issues are before
me: (1) whether the violations were attributable to the level of gravity
alleged; (2) whether the violations were attributable to the degree of
negligence alleged; and (3) the appropriate penalty. The parties’ Post-hearing
Briefs and Consol’s Reply Brief are of record.

For
the reasons set forth below, I AFFIRM two citations, as issued, and three
citations, as modified; and assess penalties against Respondent.

I.    Joint
Stipulations

The
parties have stipulated as follows:

1. Respondent
   is an operator, as defined in section 3(d) of the Mine Act, at the mine where
   the citations were issued.

2. Bailey
   Mine is a mine, as defined in section 3(h) of the Mine Act.

3. The
   operations of Respondent at Bailey Mine are subject to the jurisdiction of the
   Mine Act.

4. This
   proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission and its designated Administrative Law Judge, pursuant to Mine
   Act sections 105 and 113.

5. Bailey
   Mine is owned by Respondent.

6. Payment
   of the proposed penalties will not affect Respondent’s ability to remain in
   business.

7. The
   individual whose name appears in Block 22 of each citation in contest was
   acting in an official capacity and as an authorized representative of the
   Secretary of Labor when the citations were issued.

8. The
   citations were properly issued and served by a duly authorized representative
   of the Secretary upon an agent of Respondent at the date, time, and place
   stated in each citation, as required by the Act.

9. Exhibit
   A to each of the above-captioned dockets contains authentic copies of the
   citations at issue.

10. Respondent
    stipulates to the authenticity and admissibility of the R–17 certified mine
    history forms (P–9).

Tr.
14-16.

II.
Factual Background

Consol
owns and operates the Bailey Mine, an underground coal mine in Wind Ridge,
Greene County, Pennsylvania. On May 17, 2018, Walter Young, an MSHA inspector
and ventilation specialist, conducted an E02 methane spot inspection of the
mine, accompanied by his supervisor Jeremy Williams, Consol respirable dust
coordinator John Opfar, and Consol safety inspector Cody Rogers. Tr. 270-72. Young
cited Consol for two worn high pressure shield hoses on the 6-J longwall
working section; and wet accumulations of combustible materials at the 6-J working
section conveyor belt storage unit. Exs. P–5, P–6.

On
June 28, 2018, Inspectors Young and Williams returned to the mine for another
methane spot inspection, accompanied by Consol safety inspectors James Jones
and Matt Cunningham. Tr. 58-60. Young observed several conditions for which he
cited Consol: an inadequately ventilated charging battery in the No. 3 crosscut,
between the No. 3 belt and No. 2 track entries; an energized ISE box on the pump
car in the No. 2 track entry with the outby door ajar and disconnected external
control levers; and an unsupported area of mine roof between the last longwall
shield and the 5-L tailgate travelway. Exs. P–2, P–3, P–4.

III.
Findings of Fact and Conclusions of Law

1. Citation
   No. 9077362

A.     Fact of Violation

Inspector
Young issued 104(a) Citation No. 9077362 on May 17, 2018, alleging an “S&S”
violation of section 75.1725(a) that was “reasonably likely” to cause
an injury that could reasonably be expected to result in “lost workdays or
restricted duty,” and was caused by Consol’s “moderate” negligence. [2] The
“Condition or Practice” is described as follows:

The Mine
Operator failed to maintain the high pressure shield to shield hoses on the 6-J
Longwall Working Section (039-0 MMU), inby the number 10.5 crosscut in safe
operating condition at the following locations:

1. Between the
   numbers 62 and 63 shields. The outer jacket of the hose was worn off for an
   area measuring 2 inches long by 3 inches wide exposing the inner wire braiding
   to damage. The inner braiding was rusted and deteriorating from oxidation and
   rubbing on the pontoons of the shields when they were advanced.

2. Between the
   numbers 64 and 65 shields. The outer jacket of the hose was worn off for an
   area measuring 24 inches long by 3 inches wide exposing the inner wire braiding
   to damage. Broken strands were present. The inner braiding was rusted and
   deteriorating from oxidation and rubbing on the pontoons of the shields when
   they were advanced. The Operator immediately removed the shields from service
   until the condition could be corrected. Both outer protective hose sleeves were
   damaged at the cited locations.

Standard
75.1725(a) was cited 16 times in two years at mine 3607230 (16 to the operator,
0 to a contractor).

Ex.
P–5. The citation was terminated on May 17, when both damaged high pressure
hoses were replaced. Ex. P–5. Consol has conceded the violation, but contests the
S&S designation and the degree of negligence ascribed to the violation. Resp’t
Br. at 18.

B.     Gravity

In  Mathies Coal Co. , the Commission
set forth four criteria that the Secretary must establish in order to prove
that a violation is S&S under  National Gypsum : 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);  see
also 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, 103-04
(5th Cir. 1988) (approving  Mathies  criteria),  aff’g  9
FMSHRC 2015, 2021 (Dec. 1987). Resolution of whether a violation is S&S
must be based “on the particular facts surrounding that violation.” Texasgulf,
Inc. , 10 FMSHRC 498, 501 (Apr. 1988);  Youghiogheny & Ohio Coal
Co. , 9 FMSHRC 2007, 2011-12 (Dec. 1987).

The Commission has explained that the
second  Mathies  criterion requires the judge to define the
hazard to which the violation contributes, and then determine “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, 2038 (Aug.
2016);  see ICG Illinois , LLC , 38 FMSHRC 2473, 2475-76 (Oct.
2016). When evaluating the third  Mathies  criterion, the judge
is to assume that the hazard identified in step two has been realized, and then
consider whether the hazard would be reasonably likely to result in injury in
the context of “continued normal mining operations.”   Newtown  Energy , 38 FMSHRC at 2045
(citing  Knox Creek Coal Corp. , 811 F.3d 148, 161-62 (4th Cir. 2016);  Peabody
Midwest Mining , LLC , 762 F.3d 611, 616 (7th Cir. 2014);  Buck
Creek , 52 F.3d at 135));  U.S. Steel Mining Co. , 6 FMSHRC 1573,
1574 (July 1984). The Secretary need not prove a reasonable likelihood that the
violation, itself, will cause injury. Musser Eng’g, Inc. , 32 FMSHRC
1257, 1280-81 (Oct. 2010).

The
Secretary maintains that the violation was S&S because the damaged hoses created
a risk of highly pressurized fluid leaks and, because the hoses were facing the
pan line, they “could break loose entirely and whip through the air” in an area
where miners travel. Sec’y Br. at 6-7. Additionally, the Secretary argues that
the pressure tests on the damaged hoses offered by Consol should be discounted
because they do not account for continued degradation and repeated
pressurization during the normal course of mining. Sec’y Br. at 5-7. Consol
makes the counter argument that despite the damage, the pressure testing performed
at Fairmont Supply Company (“Fairmont”) demonstrated that the hoses could withstand
pressure far exceeding that to which they were subjected during normal mining. Resp’t
Br. at 18-21. Consol also contends that if one or both hoses were to fail, it
would be highly unlikely for a miner to be in close proximity to either because
of Consol’s automated system for moving the longwall shields. Resp’t Br. at
19-20.

Inspector
Young testified that he identified damaged high pressure hoses between the
numbers 62 and 63, and 64 and 65 shields, with braiding visible through the
outer jackets and oxidation on the exposed steel braiding. Tr. 273, 289, 299-300,

334. Young explained that the hoses use hydraulic fluid to pressurize the
     shield system, and that the cited hoses carry 2,500 psi of static pressure and approximately
     5,000 psi of operating pressure when the shields are advancing. Tr. 274-75,
     293, 304. He noted that there was slack in the hoses, which caused rubbing on
     the longwall pontoons. Tr. 292-93, 307. He testified that high pressure leaks
     at 4,000 psi can pierce human flesh and that if a “hose blows off” and swings,
     it could kill miners traveling or working along the pan line. Tr. 299. Young
     explained that the longwall shields are moved manually when there are bad roof conditions,
     and that miners can override the computer program ensuring that they are two
     shields away from an advancing shield. Tr. 310-14, 321-323. Additionally, Young
     acknowledged that, under some circumstances, oxidation can occur quickly, that it
     usually turns steel a dark color, and that the outer jacket of the cited hoses
     is black.     Tr. 309, 334, 340. Finally, he stated that the only way to
     determine the extent of damage to a hose is to send it out for testing, and that
     MSHA did not test the cited hoses. Tr. 308, 334.

Consol
respirable dust coordinator John Opfar explained that the longwall operation is
supported by over 200 shields, each equipped with three hoses. Tr. 545-46, 591.
He testified that, typically, the longwall shields are advanced automatically, and
that they only begin to advance once the shearer has passed and is
approximately 10 shields further along the working face. Tr. 588-90. Additionally,
he explained that when conditions require that shields be moved manually,
miners can only advance a shield using a computer program that operates two
shields away from the advancing shield; this keeps miners approximately 11 feet
from the advancing shield and the highly pressurized hoses. Tr. 588-90. Opfar
acknowledged that when the longwall shields advance, the hoses can pull and rub,
and he identified the location of the deterioration as facing the shields. Tr. 587.

Consol
conference officer Robert Gross testified that the cited hoses carried approximately
5,000 psi when pressurized to advance the longwall shields. Tr. 625, 642, 654,

666. He stated that Consol had the hoses proof and burst pressure tested at Fairmont’s
     facility. [3]    
     Tr. 633, 644-45. He also stated that both hoses passed the proof pressure test,
     that neither hose burst, and that the burst test established that one could
     withstand 19,000 psi without leakage, while the other began to leak at 17,000
     psi. Tr. 645-47, 652-55. Finally, Gross explained that, despite the damage to
     the outer jackets, both hoses had internal layers of intact braiding.      Tr.
     649-50.

Todd
Clyde, the distribution center manager at Fairmont, testified that the company
assembled and sold the cited hoses to Consol. Tr. 672-73, 685. He also stated
that Consol had the hoses tested at Fairmont, and that the testing methods at
its facility are accepted by hose manufacturers. Tr. 672, 682.

The
fact of violation has been conceded. Regarding the second  Mathies  criterion,
continued operation of the damaged hoses contributed to their failure, i.e., highly
pressurized fluid leakage and uncontrollable detachment from the shields.

The
Secretary seeks to discredit Consol’s pressure testing, contending that it does
not take into account wear and tear from continued friction and pressure
changes occurring during the normal course of mining. Sec’y Br. at 6-7. The
Commission has explained that, in evaluating the contribution of a violation to
the cause and effect of a hazard, “it is assumed that normal mining operations
will continue.” Mach Mining, LLC , 40 FMSHRC 1, 4 (Jan. 2018) (citing
U.S. Steel , 6 FMSHRC at 1574-75);  see also  U.S .  Steel
Mining Co. , 7 FMSHRC 1125, 1130 (Aug. 1985 ). Accordingly, continued stress
on the hoses and highly pressurized fluid leakage must be considered when
evaluating the risk of hose failure, alongside evidence of their condition at
the time that they were cited by Young. While the record establishes that many
layers of braiding remained intact and that the hoses could withstand pressure
far greater than that utilized to move the shields, continued operations
subjected them to rubbing the pontoons as the longwall advanced. While the test
results indicated the unlikelihood of the hoses failing at the time that Young observed
the damage, given the extent of exposed braiding and oxidation, along with wear
and tear in the context of continued mining, I find it reasonably likely that
these hoses would fail. Accordingly, the second step of Mathies is met.

Regarding
the third step of Mathies , Consol argues that miners would not have been
exposed to the hazard arising from the damaged hoses. The record indicates that
shield hoses are only pressurized to 5,000 psi when the longwall advances and, under
normal circumstances, automated longwall advances do not require miners to be
located in the immediate area. However, under adverse roof conditions, when
Consol elects to advance the longwall manually, it utilizes a computer program
that precludes advancement unless miners are 11 feet away from the pressurized hoses
that are advancing the shield. Other than the Secretary’s bare contention that
miners can override the manual system, the Secretary does not rebut or reckon with
this evidence in any meaningful way. Moreover, the Secretary has not identified
any scenario in which a miner would be exposed to the hazard created by the
failed highly pressurized hoses. Accordingly, the Secretary has failed to establish
a reasonable likelihood of injury and, therefore, this violation was not S&S. [4]

C.     Negligence

The
Secretary contends that Consol was moderately negligent in committing the
violation. Sec’y Br. at 7. Consol argues that its negligence should be low
because there were hundreds of hoses used to operate the longwall, and the
condition was difficult to identify. Resp’t Br. at 21. The evidence establishes
that the damage was on the non-visible back side of the hoses facing the shields,
and that the oxidation on the inner steel braiding and the hoses’ outer jackets
were similar in color; therefore, their cited condition was not readily
observable from the travelway. Additionally, only two out of approximately 600
hoses were cited. Finally, the Secretary did not establish how long the
condition had existed. I find these factors mitigating and, accordingly, that Consol’s
negligence was low in violating this standard.

2. Citation
   No. 9077364

A.     Fact of
Violation

Inspector
Young issued 104(a) Citation No. 9077364 on May 17, 2018, alleging an “S&S”
violation of section 75.400 that was “reasonably likely” to cause an injury
that could reasonably be expected to result in “lost workdays or restricted
duty,” and was caused by Consol’s “moderate” negligence. [5] The
“Condition or Practice” is described as follows:

Damp to wet
accumulations of combustible materials consisting of loose coal, coal fines and
coal dust, black in color, were permitted to accumulate under the rear of the 6-J
Working Section Conveyor Belt Storage Unit and 0.5 crosscut. These
accumulations measured 13 feet long by 6 feet wide by 2 to mostly 12 inches in
depth. These accumulations were in contact with the return side of the bottom
conveyor belt and the stationary roller (outby roller). These accumulations
were packed and worn smooth from the conveyor belt being operated overtop of
them. The accumulations were built up to the point were [sic] the conveyor belt
was almost rubbing the tight side of the take-ups [sic] frame.

The Operator
removed the Conveyor Belt from service immediately after the issuance of this
citation until the condition could be corrected.

Standard 75.400
was cited 109 times in two years at mine 3607230 (109 to the operator, 0 to a
contactor).

Ex.
P–6. The citation was terminated on May 17, after the operator removed the
accumulations from the area. Ex. P–6. Consol has conceded the violation, but
contests the S&S designation and the degree of negligence ascribed to the
violation. Resp’t Br. at 22.

B.     Gravity

The
Secretary argues that the citation was S&S, and that the hazard is a “mine
fire from the combination of heat from the belt and combustible coal.” Sec’y
Br. at 8. Consol maintains that an ignition was unlikely to occur because of
the wet conditions in the area, the mixed nature of the accumulations, and the
presence of water sprays, an overhead fire suppression system, a CO monitor, a fire
resistant belt, and a nearby attendant. Resp’t Br. at 22-23.

Inspector Young testified that he
observed accumulations underneath the 6-J working section conveyor belt storage
unit that extended 6 feet in width, 2 to 12 inches in depth, and 12 feet in
length. Tr. 347. He stated that the accumulations were in contact with the belt
and rollers in several places, noting that multiple rollers were under pressure,
that accumulations were underneath the take-up structure, and that the belt had
polished the accumulations. Tr. 347, 353, 374. He also noted that none of the rollers
were damaged, and that the belt was not in contact with the take-up structure. Tr.
347, 353, 373-74. Young testified that he observed chunks of coal within the wet
mixture of dirt, rocks, and other debris, and that the accumulations were not
rock dusted. Tr. 347, 350, 364-65, 385. In his opinion, the quantity indicated
that the accumulations had existed for two to three shifts, and that it would
have taken time for the belt to have polished them. Tr. 347, 351-52. He noted
that the outside guarding was clean, which he believed to be another indication
that a spill had not occurred recently. Tr. 393-94. In Young’s opinion, continued
mining operations could dry out the accumulations and cause a fire, and the
accumulations had almost built up enough to cause the belt to rub against the
frame of the take-up structure. Tr. 350-51, 374-75. Finally, Young explained
that the mine was subject to a five-day spot inspection cycle for methane, and that
he did not cite Consol for elevated levels of methane that day. Tr. 58-59, 258.

Consol
respirable dust coordinator John Opfar testified that the belt was in contact
with the accumulations, that the belt was functioning at least intermittently
at the time that the accumulations were cited, and that there was coal in the
accumulations. Tr. 561-62, 564-65. He explained that spillage can occur when
the belt is turned off and on. Tr. 564. He noted that the accumulations were
wet and contained a mixture of materials. Tr. 561. He also testified about the
fire prevention equipment employed by the mine, which includes an overhead fire
suppression system, a CO monitor, fire resistant belts, and sprinklers. Tr. 553-54,
561-67. Opfar also noted that an attendant was stationed near the accumulations,
and that he could have addressed any smoldering or fire. Tr. 561-62, 565-567.  

The
fact of violation has been conceded. Regarding the second  Mathies  criterion,
the discrete safety hazard against which section 75.400 is directed is fire
or explosion contributed to by accumulations of combustible materials.

In
cases involving combustible accumulations, the Commission has clarified that when
considering the second and third steps of the Mathies analysis, “the
likelihood of an injury resulting depends on the existence of a ‘confluence of
factors’ that could trigger the ignition or explosion.” Mach Mining , 40
FMSHRC at 3-4 (citing McCoy Elkhorn Coal Corp. , 36 FMSHRC 1987, 1992 (Aug.
2014)). “Factors include any potential ignition sources, the presence or
potential for presence of methane, float coal dust accumulations, loose coal or
other ignitable substance, and the types of equipment operating in the area.” Id. at 4; see
also Utah Power & Light Co., Mining Div. , 12 FMSHRC 965, 971 (May
1990);  Texasgulf , 10 FMSHRC at 501-03. Belt rollers contacting
accumulations can be potential ignition sources even if the belt is not rubbing
against any structure and there are no broken rollers. See id. at
4-6; see also Knox Creek Coal Corp. , 36 FMSHRC 1128, 1139-42 (May 2014).
Additionally, equipment operating in coal accumulations constitutes an ignition
source for S&S purposes, even absent any defects in the equipment. See Buck
Creek ,   52 F.3d at 135. Finally, it is well established that a
fire in an underground coal mine poses a significant risk of injury to miners. Id.
at 135-36; Black Diamond Coal Mining Co. , 7 FMSHRC 1117, 1120 (Aug.
1985).

Consol
argues that the wetness of the accumulations made it unlikely for a fire to occur.
Resp’t Br. at 22-23. However, the Commission has long explained that “wet coal accumulations
pose a significant danger in underground coal mines” because they can dry out through
frictional contact with the belt or rollers, and propagate a fire or explosion.
Mach Mining , 40 FMSHRC at 4-6 (citing Consolidation Coal Co. , 35
FMSHRC 2326, 2329-30 (Aug. 2013); Black Diamond , 7 FMSHRC at 1120-21).

Consol next contends that the
presence of an overhead fire suppression system, a CO monitor, sprinklers, and
fire resistant belts reduce the likelihood of the hazard causing an injury. Resp’t
Br. at 22-23. However, it is well settled that these safety measures are not
valid considerations in determining whether a violation is S&S. Buck
Creek , 52 F.3d at 135 -36 (the court rejected the operator's contention that
other fire prevention safety measures mitigated the S&S nature of an
accumulation) ;  see also Sec’y of Labor v. Consolidation
Coal Co. , 895 F.3d 113, 118 (D.C. Cir. 2018); Knox Creek , 811 F.3d
at 162;  Cumberland Coal Res., LP , 717 F.3d 1020, 1028-29 (D.C.
Cir. 2013), aff’g 33 FMSHRC 2357 (Oct. 2011); Brody Mining, LLC , 37
FMSHRC 1687, 1691 (Aug. 2015) . Furthermore, as
the Commission has recognized, adopting the position that redundant safety
measures provide a defense to an S&S finding “would lead to the anomalous
result that every protection would have to be nonfunctional before a[n] S&S
finding could be made.” Cumberland Coal Res., LP , 33 FMSHRC 2357, 2369
(Oct. 2011).

Consol also maintains that a fire
was unlikely because the accumulations were a mixture of combustible and
noncombustible materials. Resp’t Br. at 22. On this point, I credit Young’s
testimony, based on his experience and observation of the coal in the
accumulations, that there was sufficient coal to provide a fuel source.

Finally,
Consol advances the argument that the nearby attendant could prevent an ignition
from occurring or clean up any accumulations. Resp’t Reply Br. at 5. However, the
Commission requires that an S&S determination be made at the time that a
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);  U.S. Steel , 6 FMSHRC at 1574. In the
present case, the evidence establishes that the accumulations had accrued over
a few shifts because of the quantity, that they had been polished by the belt, and
that there was no spillage on the guarding; in that timespan, no one, including
the attendant, had addressed them. It follows, therefore, that the attendant
had no effect on the likelihood of a fire or explosion occurring.

The
cases cited by Consol in support of a non-S&S designation are premised upon
facts that are distinguishable from the facts at hand. See Resp’t Br. at
22-23. In Brody Mining, LLC , the judge found a non-S&S violation
where the accumulations were loose and not compacted, they were wet with water
rather than hydraulic oil, there was no evidence of heat coming from the belt, and
redundant safety measures made ignition unlikely. 33 FMSHRC 1329, 1382, 1384-85
(May 2011) (ALJ). Here, the accumulations were packed and polished by the belt
to the point that they had become smooth, indicating that there had been
significant contact and friction with the belt. In Mach Mining, LLC , the
judge found that the accumulations could have accrued in a relatively short
time, that approximately half of the material was noncombustible rock, and that
the roller contacting the accumulations was no longer in use. 33 FMSHRC 763,
773 (Mar. 2011) (ALJ). [6]
In this case, by contrast, the cited accumulations were present significantly
longer than a shift, the mixture was black and contained chunks of coal, and
the accumulations were in contact with functioning rollers.

The
evidence establishes that there were numerous points of contact between the
accumulations and the belt, and there were multiple rollers under pressure, all
of which created points of friction. [7]
Moreover, there were chunks of coal in the accumulations, and the belt had
polished them. Furthermore, despite no evidence of excessive methane levels on the
section at the time that Young cited the accumulations, the fact that Bailey is
subject to a five-day spot inspection cycle for methane heightened the potential
for an ignition in the context of continued normal mining. [8] Finally, at
least one miner, the attendant, would have been in close proximity to a fire. Based
on these facts, I find that the coal accumulations contributed to the
reasonable likelihood of a fire, a hazard that would be reasonably likely to
result in an injury. Accordingly, the second and third Mathies criteria have
been satisfied.

As
the Seventh Circuit expressed in  Buck Creek , a finding that “a fire burning in an
underground coal mine would present a serious risk of smoke and gas inhalation”
is a common sense conclusion. 52 F.3d at 135-36; see also Black Diamond ,
7 FMSHRC at 1120 (recognizing that “ignitions and explosions are major causes
of death and injury to miners”). Based on the facts in this case and the
relevant precedent, I find a reasonable likelihood that any injury arising from a mine fire
would be of a reasonably serious nature, satisfying the fourth Mathies criterion.
Accordingly, I find that this violation was S&S.

C.     Negligence

The
Secretary asserts that Consol was moderately negligent in committing the
violation because the accumulations were not caused by spillage, and had been
building up for two to three shifts. Sec’y Br. at 8. Consol argues that its
negligence should be low because the accumulations were hard to identify, they
could have accrued between examinations, and they could have been caused by the
belt being turned off and on. Resp’t Br. at 23. The evidence establishes that
the accumulations had existed for at least two shifts and had not been caused by
a sudden event, and that no action had been taken to remove them. Based on
these facts, I find that Consol was moderately negligent in violating the
standard.

3. Citation
   No. 9077374

A.     Fact of
Violation

Inspector
Young issued 104(a) Citation No. 9077374 on June 28, 2018, alleging an “S&S”
violation of section 75.340(a)(1)(i) that was “reasonably likely” to cause
an injury that could reasonably be expected to result in “lost workdays or
restricted duty,” and was caused by Consol’s “moderate” negligence. [9] The
“Condition or Practice” is described as follows:

The battery
scoop charging station located in the 5-L Longwall Working Section (008-0 MMU)
between the numbers 1 and 2 entries at the number 3 crosscut was ventilated
with intake air that was not coursed into a return air course or to the surface
and was being used to ventilate working places. When smoked with a chemical
smoke tube the air being used to ventilate the scoop batteries was being
coursed inby to the 5-L Longwall Working Section’s last open crosscut (4
crosscut). This smoke tube reading was taken at the track entry side of the
battery being charged, 18 feet inby the ribline of the track entry (number 2
entry).

Standard
75.340(a)(1)(i) was cited 11 times in two years at mine 3607230 (11 to the
operator, 0 to a contractor).

Ex.
P–2. The citation was terminated on June 28, when the ventilation was corrected
by hanging a piece of line brattice across the opening to the crosscut and
enlarging the hole in the stopping. Ex. P–2. Consol has conceded the violation,
but contests the S&S designation, the number of persons affected, and the
degree of negligence ascribed to the violation. Resp’t Br. at 7, 23.

B.     Gravity

The
Secretary contends that this violation was S&S because the improper
ventilation would expose miners to toxic fumes and smoke from the battery
charging station, and urges the assumption of an emergency, i.e., a battery fire,
in the Mathies analysis. Sec’y Br. at 9-10 (citing Cumberland Coal ,
717 F.3d at 1028-29). Alternatively, the Secretary asserts that, even if a fire
were not assumed, the conditions in the mine on the day in question would
render the ventilation dangerous to miners. Sec’y Br. at 10.

Consol
maintains that it would be inappropriate to assume an emergency in the Mathies
analysis because section 75.340(a)(1)(i) is not an emergency standard. Resp’t
Reply Br. at 5-6 (citing Cumberland Coal , 717 F.3d at 1028-29; ICG
Illinois , 38 FMSHRC at 2473). Moreover, Consol contends that determining whether
a fire was likely to occur is an essential part of the S&S analysis and
that, given the good condition of the cited battery, a fire was unlikely.   Resp’t
Br. at 7-9. Additionally, Consol explains that, even if a fire were to occur, miners’
exposure would be limited because intake air coming from the primary escapeway would
dilute any smoke or contamination coming from the No. 2 track entry before it
reached the working face. Resp’t Br. at 8, 23-24.

Inspector
Young testified that he encountered a noticeable increase in temperature near the
No. 3 crosscut, and found that the heat was coming from a battery charging in the
crosscut and the connected charger. Tr. 60-61, 70-71. He testified that the
battery was located near the stopping in the crosscut, that there was no ventilation
curtain at the charging station, and that there was a disconnected charger also
sitting in the crosscut. Tr. 60-61, 64, 82-83, 90, 94, 130. The battery in the
No. 3 crosscut was connected to a charger mounted on the train in the No. 2
track entry, and Young explained that MSHA does not cite chargers that are mounted
on trains. Tr. 65, 70, 91-92. He opined that charging batteries are dangerous because
if they catch fire, they can create toxic smoke and carbon monoxide. Tr. 64,

141. Young stated that he released multiple smoke tubes 13, 15, and 18 feet from
     the ribline of the track entry to determine whether the area was properly
     ventilated. Tr. 63-64, 68, 125, 127. He explained that when he took a smoke
     test at the 18 foot mark at the front edge of the battery, some smoke went through
     the stopping in the crosscut to the return belt entry and some went toward the
     ribline, continuing up the track entry toward the face. Tr. 116, 122, 124-25, 127,
142. When he released smoke at the 15 foot mark, he observed the smoke swirling;
     at the 13 foot mark, he observed the smoke traveling toward the face. Tr. 127. Young
     then explained that, in the event of contamination coming from the battery, once
     intake air from the No. 1 primary escapeway met the contaminated air in the No.
     2 track entry, some of the combined air would be siphoned off at the last open crosscut
     into the return belt entry, but there would be no way to quantify the amount of
     contamination ventilating the face. Tr. 76, 80-81, 116. He noted that in
     assessing the gravity of the violation, he took into account other ventilation in
     the mine and the potential for dilution of any contaminated air, and he acknowledged
     that Consol employs a fire suppression system, CO monitors, and a fire
     resistant curtain over the battery. Tr. 117-18, 131, 154.

Consol
safety inspector Justin Jones testified that he observed Young perform the smoke
test over the battery, and that the smoke remained stagnant; however, he also stated
that the smoke split and some traveled toward the face when Young performed
smoke tests closer to the ribline. Tr. 417-19, 430. He explained that any air
traveling toward the face would get diluted by intake air coming from the
primary escapeway, that some of the contaminated air would get siphoned off,
and that there was no damage to the charger or the battery at the time of
inspection. Tr. 418, 422-23, 425. Finally, he noted that miners are equipped
with self-contained self-rescue devices (“SCSR”), and that Consol utilizes fire
suppression systems, CO monitors, and a fire resistant curtain over the battery.
Tr. 418-19.

The
fact of violation has been conceded. Regarding the second  Mathies  criterion,
the discrete safety hazard that section 75.340(a)(1)(i) is intended to prevent
is “delivery of smoke or other products of combustion to the working place by
the intake air current.” 57 Fed. Reg. 20868-01, 20888 (May 15, 1992) .

Addressing
the Secretary’s position as to the second Mathies  criterion, the
Commission and the D.C. Circuit have applied Cumberland Coal to standards
that only become relevant in emergency situations, such as lifelines, escapeways,
and refuge chambers. See e.g., Cumberland Coal , 717 F.3d at 1026-28; ICG
Illinois , 38 FMSHRC at 2476; Small Mine Dev ., 37 FMSHRC 1892,
1900-01 (Sept. 2015); Black Beauty Coal Co. , 36 FMSHRC 1121, 1123 (May
2014); Spartan Mining Co. , 35 FMSHRC 3505, 3508-09 (Dec. 2013). The
standard at issue, section 75.340(a)(1)(i), is not within the ambit of the
situations that would render it an emergency standard. Therefore, at this
juncture, the particular facts attendant this violation are analyzed to
determine the reasonable likelihood of smoke and other products of combustion
reaching the working face, irrespective of any emergency.

In
support of its contention that the charging battery posed no risk of fire
because it was not found to be defective, Consol cites several cases for the
proposition that the S&S designation is primarily premised upon the
likelihood of a battery fire occurring. Resp’t Br. at 8 (citing Rebco Coal,
Inc. , 36 FMSHRC 181, 186 (Jan. 2014) (ALJ); Roxcoal, Inc. , 33 FMSHRC
2303, 2313 (Sept. 2011) (ALJ); Zeigler Coal Co. , 14 FMSHRC 203, 219
(Jan. 1992) (ALJ); Mathies Coal Co. , 4 FMSHRC 2222, 2234-35 (Dec. 1982) (ALJ)).
These cases, involving similar violations but different facts, are of limited
value. In Roxcoal , in finding that a battery fire was unlikely and that
the violation was non-S&S, the judge noted that any contaminated air in the
travelway would be coursed quickly to the return. 33 FMSHRC at 2313. There is
no such indication in the present case. In Zeigler Coal and Rebco
Coal , the inspectors did not designate the violations S&S, and the
judges did not make findings on S&S. See 14 FMSHRC at 219; 36 FMSHRC
at 186. In Mathies Coal , the cited battery charging equipment was not in
use, whereas here, the battery was being charged. See 4 FMSHRC at
2234-35.

Additionally,
MSHA has explained that section 75.340 requirements are designed “to protect
miners if a fire originates at underground transformer stations, battery
charging stations , substations, rectifiers and water pumps.” 57 Fed. Reg.
at 20888 (emphasis added). MSHA
has also explained that the requirements are “necessary to safely operate [battery]
chargers, regardless of the location” because charging batteries liberate
hydrogen, and “[t]here is a demonstrated history of fires caused by battery
chargers.” 61 Fed. Reg. 9764-01, 9786 (Mar. 11, 1996) . [10]

In
the present case, the evidence establishes that the air at the charging battery
in the No. 3 crosscut split, some ventilating through the stopping into the
return belt entry, and some migrating inby the track entry and mixing with
intake air from the primary escapeway before coursing the working face. Accordingly,
the second Mathies requirement has been satisfied.

Regarding
the third Mathies criterion, Consol’s contention, that its overhead fire
suppression system, CO monitors, fire resistant curtain, and SCSRs for its
miners would reduce the likelihood of injury, is clearly contrary to long held
precedent. The Commission and Federal Courts of Appeals have explained that
redundant safety measures are not valid considerations in determining whether
an injury is reasonably likely to occur. See e.g., Knox Creek ,
811 F.3d at 162; Cumberland Coal , 717 F.3d at 1029;  Brody
Mining , 37 FMSHRC at 1691.

While the evidence establishes that
contaminated air originating in the No. 3 crosscut and traveling inby the track
entry was diluted by intake air from the primary escapeway, and that some of
the combined air was siphoned off at the last open crosscut and ventilated into
the return belt entry, an unknown quantity of residual contaminants reached the
working face and, in the event of a fire at the charging battery, smoke and other
products of combustion would be reasonably likely to reach the entire crew,
resulting in serious respiratory and other injuries. Accordingly, I find that the
third and fourth Mathies criteria have been satisfied, and that this violation
was S&S.

C.     Negligence

The
Secretary contends that Consol was moderately negligent in violating the
standard because the heat emanating from the battery and charger was obvious. Sec’y
Br. at 10. Consol argues that its negligence was low because there were no
defects found on the battery or the charger, and the Secretary did not
establish how long the condition had existed. Resp’t Br. at 11. The evidence
establishes that the charging battery and charger were generating noticeable
heat. Additionally, the hole in the stopping was insufficient for adequate
ventilation of the charging battery into the return belt entry, and there was
no other ventilation control at that location. Based on these facts, I find
that the Consol was moderately negligent in violating the standard.

4. Citation
   No. 9077375

A.     Fact of
Violation

Inspector
Young issued 104(a) Citation No. 9077375 on June 28, 2018, alleging an
“S&S” violation of section 75.512 that was “reasonably likely” to cause an
injury that could reasonably be expected to be “fatal,” and was caused by
Consol’s “moderate” negligence. [11]
The “Condition or Practice” is described as follows:

The energized
480 A.C. Volt control panel containing the VFD#1 and VBD#2 breakers on the ISE
Pump Car located in the number 2 entry, just outby 3 crosscut, in the 5-L
Longwall Working Section (008-0 MMU) was not frequently examined, tested, and
properly maintained by a qualified person to assure safe operating condition.
When inspected the outby door was not closed and after further investigation
neither of the breaker control levers on the outside of this panel were not
[sic] operational. The metal extensions that fit between the actual machine
breaker and the exterior breaker control reset handles were not connected. Due
to this condition, a person would have to reset these breakers manually by
inserting the bare metal square stock and using a tool to turn/reset the
breakers, exposing them to contacting the energized components inside the
control box.

Ex.
P–3. The citation was terminated on June 28, after the breaker control levers
were properly reinstalled and the control panel door was closed securely. Ex.
P–3. Consol has conceded the violation, but contests the S&S designation
and the reasonably expected injury, and the degree of negligence ascribed to
the violation. Resp’t Br. at 12, 24.

B.     Gravity

The
Secretary maintains that the violation was S&S because the open door on the
ISE pump circuit breaker (“ISE box”) exposed miners to 480 volts of electricity
as they passed through the area. Sec’y Br. at 10. Furthermore, the Secretary contends
that miners and electricians could have been electrocuted if they had attempted
troubleshooting at the ISE box. Sec’y Br. at 10-12.

Consol
argues that the alleged hazard was not reasonably likely to occur because
miners did not travel on the tight side of the track entry where the ISE box
was accessed. Resp’t Br. at 12. Additionally, Consol contends that unqualified miners
would be unlikely to operate the breakers because such behavior is contrary to their
training, mechanics and electricians are   on-site to perform electrical tasks,
the conditions requiring resetting the breakers were not present at the time in
question and, were de-energizing the panel necessary, qualified miners could do
so at the load center rather than the control panel. Resp’t Br. at 14-15. Finally, Consol maintains
that the reasonably expected injury should be reduced from “fatal” to “lost
workdays or restricted duty” because only electricians wearing protective
gloves would be expected to encounter the hazard while troubleshooting, the
power could be turned off prior to troubleshooting, and the Secretary “failed
to produce any evidence demonstrating the relationship between volts and amps[,]
and the number of amps required to make 480 volts lethal.” Resp’t Br. at
24-25.

Inspector
Young testified that he observed the outby door open approximately three inches
on the ISE box, and that the b reaker control levers were disconnected ; he found one
of the control lever connector rods lying on the bottom of the box, six inches
from the energized components, and the other lying a couple of feet away from
the ISE box in another car. Tr. 166-67, 174, 190-91, 194. He opined that vibrations from
the pump could have opened the door, but that at least one of the disconnected
control rods had been removed intentionally. Tr. 204-05. He explained that contact
with the live components would cause fatal injuries because the ISE box is energized
by 480 volts of electricity from the load center, which is used, in part, to
power the ISE pump, that
the pump was most likely plugged into a 600 or 800 amp breaker inside the box, and that
contacting even 480 volts at half an amp would be fatal. Tr. 168-69,
185-86, 201-02. Young
asserted that the ISE box was in a “high traffic area,” that miners traveled on
both sides of the equipment, and that they could accidentally contact the live control
panel by tripping. Tr. 167-68, 188, 192. According to him, despite miner
training and availability of qualified mechanics and electricians, unqualified miners could have
attempted troubleshooting at the box which, without the control rods, would
expose them to the energized components.    Tr. 167-68, 173-74, 183, 194-95,
197-203. He
also acknowledged that only electricians, wearing protective gloves, are
permitted to troubleshoot at the ISE box when energized, that the power to the box
could have been shut down at the load center, and that there were
no conditions on the day in question that required resetting the breakers. Tr. 167-69, 175,
194-96.

Consol
safety inspector Justin Jones testified that one of the control panel doors was
open only a few inches, and that miners do not travel on the tight side of the track
entry where the ISE box was located because the hydraulic lines running along
that side make travel “inconvenient.” Tr. 469, 473-74, 483-84. However, he testified
that even if a miner were to fall where the box was located, it would likely close
the door to the box. Tr. 483. Jones explained that in the event that the
breakers required resetting, a mechanic or electrician with protective gear could
access the ISE box control panel or turn off the power to the box at the load
center for the longwall train, and that miners are trained not to troubleshoot electrical
equipment. Tr. 474, 477, 490-92.

The
fact of violation has been conceded. Regarding the second  Mathies  criterion,
the discrete safety hazard against which section 75.512 is directed is serious
electric shock or electrocution.

The
cases relied upon by the Secretary to establish that the violation was S&S are
distinguishable. In Big Ridge , the judge affirmed an S&S finding
where a 480-volt power cable was damaged in three places, and there was
substantial evidence that miners were active in the area. See Sec’y Br.
at 12 (citing Big Ridge, Inc. , 36 FMSHRC 999, 1021-24 (Apr. 2014) (ALJ)).
In the instant matter, by contrast, the door on the ISE box was open three
inches at best, and the box was located in an infrequently traveled area, significantly
reducing the likelihood of accidental contact with the energized components. In
McElroy Coal , the judge affirmed an S&S finding where a power center
could have electrocuted miners not in direct contact with the live components, because
the electricity could “track” to objects, such as steel-toed boots, in close
proximity to the exposed power source, and there was evidence that clothing,
lunch pails, and other items were stored on top of the power center. See Sec’y
Br. at 12 (citing McElroy Coal Corp. , 30 FMSHRC 45, 57-58 (Jan. 2008)
(ALJ)). Here, the evidence indicates that the danger was confined to the
energized components inside the ISE box.

Consol
cites to Zapata Coal , in which the judge found a non-S&S violation where covers on three
electrified 480-volt breaker boxes were open two to three inches and not
properly secured, because exposure to the hazard was minimal and injury was
unlikely. See Resp’t
Br. at 12 (citing Zapata Coal Corp. , 6 FMSHRC 2639, 2646-47 (Nov.
1984) (ALJ)). This case presents similar facts. It is uncontested that one of
the doors accessing the energized control panel inside the ISE box was open a
few inches, that the box was located on the tight side of the track, and that travel
on that side was inconvenient. The Secretary has failed to establish that unqualified
miners would
be traveling the tight side with any frequency, or that they would reset the
breakers in the box. Moreover, the Secretary has not rebutted evidence that qualified
mechanics and electricians troubleshoot electrical equipment, or that qualified
miners could shut down power to the ISE box at the load center. Consequently, I
find that accidental contact with the energized components was unlikely. Therefore,
the Secretary has failed to establish the second Mathies criterion, and this
violation was not S&S.

Regarding
the injury that would reasonably be expected, Consol contends that by failing
to demonstrate the relationship between voltage and amperage, the Secretary has
not established that 480 volts of electricity would be lethal . Consol does not
challenge that the ISE box was energized with 480 volts from the load center,
or that the power for the ISE pump ran through the box. Furthermore, Consol
does not rebut that, in all likelihood, the pump was connected to a 600 or 800
amp breaker, or that contacting 480 volts at even half an amp would be fatal. Consequently,
the only evidence on this point stands. Therefore, in the unlikely
event that an unqualified miner were to contact the energized components, the
reasonably expected injury would be fatal.

C.     Negligence

The
Secretary argues that Consol was moderately negligent in committing the
violation because weekly examinations were required, the condition was obvious,
and the state of the control rods indicated improper handling of the equipment.
Sec’y Br. at 12. Consol contends that low negligence is appropriate because the
latches on the door could have come loose inadvertently, the box was located in
a non-obvious location, there was no evidence that the door was open at the
time of the last examination and it was not reported, and Consol was not cited for
an inadequate examination. Resp’t Br. at 15. Balancing the evidence that the door
was only ajar rather than wide open, and that the condition was not readily observable
and of unknown duration, against the evidence of equipment mishandling
indicated by one of the disconnected breaker control levers being found in
another car, I find that Consol was moderately negligent in violating the
standard.

5. Citation
   No. 9077376

A.     Fact of
Violation

Inspector
Young issued 104(a) Citation No. 9077376 on June 28, 2018, alleging an
“S&S” violation of section 75.202(a) that was “reasonably likely” to cause
an injury that could reasonably be expected to result in “lost workdays or
restricted duty,” and was caused by Consol’s “moderate” negligence. [12] The
“Condition or Practice” is described as follows:

The mine roof in
areas where persons work or travel was not adequately supported or otherwise
controlled to protect persons from hazards related to falls of the mine roof,
between the last tailgate shield (#273 at spad number 11+11) and the 5-L
Tailgate Travel way on the 5-L Longwall Working Section. The unsupported area
measured 5.5 feet wide by 18.5 feet long and would not allow face personnel to
safely access the tailgate travelway in the event of an emergency.

Standard
75.202(a) was cited 13 times in two years at mine 3607230 (13 to the operator,
0 to a contractor).

Ex.
P–4. The citation was terminated on June 28, after the mine roof was supported
with posts, making the tailgate safely accessible. Ex. P–4. Consol has conceded
the violation, but contests the S&S designation and the degree of
negligence ascribed to the violation. Resp’t Br. at 15-17.

B.     Gravity

The
Secretary, arguing that the violation was “almost per se ” reasonably
likely to cause an injury, contends that the violation was S&S because
“there were signs of pressure in the roof and actual material falling off the
roof.” Sec’y Br. at 12-13. He contends that the foreman would be exposed to the
hazard because he is required to pass through the cited area to take air
readings every four hours. Sec’y Br. at 12-13. The Secretary also asserts that some
miners might travel to the face through the tailgate, and that an emergency
might force the entire crew to evacuate through the tailgate. Sec’y Br. at 12-13.
On the other hand, Consol argues that it would be unlikely for a miner to be in
the cited area at the precise time of a rock fall and that, outside of
emergency situations, only a foreman would travel in the area. Resp’t Br. at 16-17.

Inspector
Young testified that the area of unsupported roof was roughly 5.5 feet wide and
18.5 feet long between the end of the longwall and the tailgate, and that the
condition likely arose from the longwall getting “off sights.” Tr. 212-13, 234.
He stated that he observed unconsolidated pieces hanging and large chunks of
material falling from the roof in that area.  Tr. 210. Young opined that miners
could travel through the cited area to reach the working face, or could be
required to escape through the tailgate in an emergency. Tr. 215-16, 257. He
explained that because the mine has two escapeways located on the headgate
side, the mine is required to maintain a passable travelway to the tailgate and
that, under normal conditions, the section foreman would cross from the
longwall into the tailgate to take air readings. Tr. 235, 259-61. He also
testified that it takes two hours for the longwall to complete a round trip, and
he was of the opinion that whether the longwall advancing would terminate the
condition is speculative; he admitted, however, that the cited condition can arise
unexpectedly, and come and go as longwalls advance. Tr. 246, 249, 253-54, 256.

Consol
safety inspector Justin Jones testified that the foreman would take an air
reading in the area between the end of the longwall and the tailgate every four
hours. Tr. 406, 514-15. He explained that the advancing longwall would have
resolved the roof condition within the hour because, when the longwall shearer completed
its next pass, it would have “knocked out” the cited area and the shields would
have advanced. Tr. 515. He testified that under normal circumstances, miners
would not travel to and from the longwall face through the tailgate, but acknowledged
that in the case of an emergency, escape through the tailgate might be
necessary. Tr. 514, 520. He noted that there had not been an emergency
requiring usage of the tailgate as an escapeway during his six years working at
the mine. Tr. 520. In his opinion, the roof appeared “in fine condition to pass
under.” Tr. 530. Additionally, he noted that miners had been setting posts in
the tailgate earlier in the shift. Tr. 510-11; Ex. R–20.

The
fact of violation has been conceded. Considering the second step of Mathies ,
the roof was unsupported and fairly large chunks were already falling when the
inspector came upon the area. The discrete safety hazard contemplated by this
standard is roof falls in areas where persons work or travel. Accordingly, the
second Mathies step is met.

Consol
identifies cases in which judges made non-S&S findings based upon considerations
of the likelihood of hazards occurring, i.e., roof falls, in conjunction with the
unlikelihood of miners being at those precise locations when the hazards
occurred, in concluding that injuries were unlikely. Resp’t Br. at 16; Resp’t Reply
Br. at 9 (citing Peabody Midwest Mining LLC , 35 FMSHRC 2419 (Aug. 2013)
(ALJ); Freedom Energy, Mining Co. , 32 FMSHRC 1809, 1829 (Dec. 2010)
(ALJ); Ohio Cty. Coal Co. , 31 FMSHRC 1486, 1489 (Dec. 2009) (ALJ)). However,
the Commission has indicated that when considering the likelihood of injury under
the third Mathies criterion, the hazard is assumed to have occurred. Newtown
Energy , 38 FMSHRC at 2038.

The
Secretary does not refute Consol’s contention that the hazard would have been
resolved within the hour. The evidence establishes that it would have taken roughly
an hour for the longwall shearer to compete the second half of its roundtrip at
the time in question, and that the cited condition can arise unexpectedly and
is not unusual; it can come and go. Accordingly, I find that the longwall’s
advance would have cut away and corrected the unsupported roof by 12:30 that
afternoon.

The
Secretary’s assertion that miners could travel through the tailgate to reach
the working face is contradicted by evidence that miners would only travel
through the tailgate if there were an emergency that rendered the primary
escapeways unusable. Moreover, the Secretary has failed to establish any emergency
conditions present during the longwall cycle that was underway. Additionally, while
miners setting timbers in the tailgate earlier in the shift were nearby, the
Secretary has not shown that they worked in the unsupported area between the
end of the longwall and the tailgate, or that they traveled through it while
the condition existed. Ex.  R–20; Tr. 510-11. The evidence establishes that the
assistant foreman took a methane reading in the tailgate at 9:20 in the morning.
See Ex. R – 5 at 4; Ex. P –4. It follows that
the next reading would have occurred sometime around 1:20 that afternoon, well
after the hazard would have been cut away and the longwall advanced. Despite the
evidence of falling rock from the unsupported roof at the time of inspection, I
find that the Secretary has failed to establish that anyone would have been
exposed to the hazard between the longwall and the tailgate during its duration.
Consequently, I
find that the hazard was unlikely to result in an injury. Therefore, the
Secretary has failed to establish the third Mathies criterion, and this
violation was not S&S.

C.     Negligence

The
Secretary contends that Consol was moderately negligent in violating the
standard because miners were working in the area and failed to address the condition.
Sec’y Br. at 13. Consol contends that its negligence was low because this
condition can arise in the ordinary course of longwall mining, and the condition
was not reported. Resp’t Br. at 17. There is no evidence that miners were
working or traveling directly under the unsupported roof, or that Consol was
aware of the hazard before the inspector identified it. Moreover, the evidence
establishes that unstable roof conditions can arise unexpectedly as the
longwall operates. I find that these factors mitigate the negligence and,
therefore, that Consol’s negligence was low in violating this standard.

IV.
Penalties

While
the Secretary has proposed a total civil penalty of $11,067.00, the judge must
independently determine the appropriate assessment by proper consideration of
the six penalty criteria set forth in section 110(i) of the Mine Act, 30 U.S.C.
§ 820(i). See Sellersburg Co. , 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d
736 F.2d 1147 (7th Cir. 1984).

Applying
the penalty criteria, and based on a review of MSHA’s online records, I find
that Consol is a large operator. The record also indicates that Consol
demonstrated good faith in achieving rapid compliance after notice of the
violations, and consideration of its history of violations, from the Assessed
Violation History Reports, follows for each citation. Consol has stipulated
that imposition of the proposed penalties will not adversely affect its ability
to remain in business. Jt. Stip. 6.

The
remaining criteria involve consideration of the gravity of the violations and Consol’s
negligence in committing them. These factors have already been discussed fully.
Therefore, considering my findings as to the six penalty criteria, the
penalties are set forth below.

1. Citation No.
   9077362

It
has been established that this violation was unlikely to cause an injury and non-S&S,
and that Consol’s negligence was low. In the fifteen-month period preceding
issuance of this citation for damaged shield hoses, 10 violations of section 75.1725(a) became final
orders of the Commission. Ex. P­–9 at 1-2. Given that section 75.1725(a) is a
general equipment maintenance standard, and that the record is lacking as to
the specific nature of those violations, I find Consol’s violation history neither
a mitigating nor aggravating factor in assessing the appropriate penalty. The
Secretary has proposed a penalty of $749.00. Applying the civil penalty
criteria, I find that a penalty of $200.00 is appropriate.

2. Citation No.
   9077364

It
has been established that this S&S violation was reasonably likely to cause
an injury that could reasonably be expected to result in lost workdays or
restricted duty, and that Consol was moderately negligent. In the fifteen-month
period preceding issuance of this citation for combustible accumulations, 67
violations of section 75.400 became final orders of the Commission. Ex. P­–9 at
8-10. Given the volume of coal produced at Bailey, I find Consol’s violation history
significant, but not an aggravating factor in assessing the appropriate
penalty. Applying the civil penalty criteria, I find that a penalty of $1,211.00,
as proposed by the Secretary, is appropriate.

3. Citation No.
   9077374

It
has been established that this S&S violation was reasonably likely to cause
an injury that could reasonably be expected to result in lost workdays or
restricted duty, that six persons would be exposed to the hazard, and that
Consol was moderately negligent. In the fifteen-month period preceding issuance
of this citation for inadequate ventilation of a charging battery, 10
violations of section 75.340(a)(1)(i) became final
orders of the Commission. Ex. P­–9 at 11-12. Given that section 75.340(a)(1)(i)
is a general standard relating to ventilation of underground electrical
instillations, and the record is lacking as to the specific nature of those
violations, I find Consol’s violation history neither a mitigating nor aggravating
factor in assessing the appropriate penalty. Applying the civil penalty
criteria, I find that a penalty of $1,539.00, as proposed by the Secretary, is
appropriate.

4. Citation No.
   9077375

It
has been established that this violation was unlikely to cause a fatality and
non-S&S, and that Consol was moderately negligent. In the fifteen-month
period preceding issuance of this citation for inadequate ISE box maintenance,
33 violations of section 75.512 became final
orders of the Commission. Ex. P­–9 at 5-6. Given that section 75.512 is a
general standard relating to maintenance of electrical equipment, and that the
record is lacking as to the specific nature of those violations, I find Consol’s
violation history neither a mitigating nor aggravating factor in assessing the
appropriate penalty. The Secretary has proposed a penalty of $3,161.00. Applying
the civil penalty criteria, I find that a penalty of $1,000.00 is appropriate.

5. Citation No.
   9077376

It
has been established that this violation was unlikely to cause an injury and
non-S&S, and that Consol’s negligence was low. In the fifteen-month period preceding
issuance of this citation for inadequate roof support, 9 violations of section 75.202 became final
orders of the Commission, and I find Consol’s violation history neither a mitigating
nor aggravating factor in assessing the appropriate penalty. Ex. P­–9 at 3-4. The
Secretary has proposed a penalty of $749.00. Applying the civil penalty
criteria, I find that a penalty of $200.00 is appropriate.

IV.
Approval of Settlement

The
Secretary has filed Motions to Approve Partial Settlement respecting five of
the ten citations involved in these dockets. A reduction in penalty from
$3,658.00 to $2,005.00 is proposed. The citations, initial assessments, and
proposed settlement amounts are as follows:

Docket No.

Citation No.

Initial Assessment

Proposed Settlement

PENN 2018-0243

9076103

$336.00

$184.00

9079127

$1,118.00

$559.00

9076446

$502.00

$326.00

9074941

$953.00

$524.00

TOTAL:

$2,909.00

$1,593.00

PENN 2018-0255

9077570

$749.00

$412.00

TOTAL:

$749.00

$412.00

GRAND TOTAL:

$3,658.00

$2,005.00

I
have considered the representations and documentation submitted in these
matters under section 110(k) of the Act, and I conclude that the proffered
settlement is appropriate under section 110(i) of the Act, and is in the public
interest. Specifically, regarding Citation No. 9076103, the Secretary has found
the gravity to be less than originally assessed based upon Respondent’s
contentions that no copper wire was exposed, and that the area was not
regularly traveled. Regarding Citation No. 9079127, the Secretary has found the
gravity and negligence to be less than originally assessed based upon
Respondent’s contentions that three jacks would continue to stabilize the bucket
if the pin failed, and that the condition could have arisen at any time. Regarding
Citation No. 9076446, the Secretary has found the gravity to be less than originally
assessed based upon Respondent’s contentions that there were no problems with
the ventilation or permissibility, and that the area was adequately rock dusted.
Regarding Citation No. 9074941, the Secretary has found the gravity to be less
than originally assessed based upon Respondent’s contention that the hose had
been pressure tested and could withstand five times the operating pressure. Regarding
Citation No. 9077570, the parties believe that the violation was issued under
the incorrect standard, and the Secretary has found the gravity to be less than
originally assessed based upon Respondent’s contentions that the shuttle car
was not in operation at the time of inspection, that it was not energized, and that
a pre-operational exam had not been performed.

ORDER

WHEREFORE ,
it is ORDERED that Citation Nos. 9077364 and 9077374 are AFFIRMED ,
as issued; and that Citation Nos. 9077362, 9077375 and 9077376 are AFFIRMED ,
as modified.

WHEREFORE , the Secretary’s
Motions to Approve Partial Settlement are GRANTED , and it is further ORDERED
that the Secretary MODIFY Citation Nos. 9076103 and 9074941 to
reduce the level of gravity to “unlikely” and remove the “significant and
substantial” designation; Citation No. 9079127 to reduce the level of gravity
to “unlikely” and remove the “significant and substantial” designation, and
reduce the degree of negligence to “low;” Citation No. 9076446 to reduce the level
of gravity to “2 persons affected;” and Citation No. 9077570 to allege a violation
of 30 C.F.R. § 75.517, and reduce the level of gravity to “unlikely” and remove
the “significant and substantial” designation.

WHEREFORE ,
it is further ORDERED that Consol Pennsylvania Coal Company, LLC, PAY
a civil penalty of $6,155.00 within 30 days of the date of this Decision. [13] ACCORDINGLY ,
these cases are DISMISSED .

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Matthew
Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis
Center

170
S. Independence Mall West, Ste. 630E, Philadelphia, Pennsylvania   19106 [email protected]

James
McHugh, Esq., Hardy Pence, PLLC, 500 Lee Street, Suite 701, Charleston, West
Virginia   25301

[email protected]

Kenneth
J. Polka, Conference & Litigation Representative, U.S. Department of Labor,
MSHA, 631 Excel Drive, Suite 100, Mt. Pleasant, Pennsylvania   15666  

[email protected]

Craig
Aaron, CONSOL Energy Inc., 1000 CONSOL Energy Drive, Suite 100, Canonsburg, Pennsylvania 
 15317

[email protected]

[1] The parties reached
a settlement on five of the ten contested citations. The total civil penalty
proposed for the remaining five citations adjudicated in this proceeding is
$7,409.00.

[2] 30 C.F.R. §
75.1725(a) provides that “[m]obile 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.”

[3] Gross and Fairmont
employee Todd Clyde explained that the proof pressure testing procedure doubles
the maximum pressure determined by the manufacturer for 30 seconds to ensure
that hoses are in safe operating condition; burst pressure testing pressurizes hoses
to four times the pressure that they would undergo during normal mining
conditions. Tr. 643, 674.  

[4] The Secretary’s
cite to Mountain Coal , in support of his contention that the violation
was reasonably likely to result in an injury, cuts the other way. See Sec’y
Br. at 5-7 (citing Mountain Coal Co., LLC , 31 FMSHRC 1220, 1238 (Oct.
2009) (ALJ) (the judge’s non-S&S finding was based, in part, on the cited
hoses being located behind the shields where miners did not regularly travel)).
Similarly, the non-S&S finding in this matter is premised upon the
Secretary’s failure to place miners in close proximity to the pressurized hoses
under either computer program, automated or manual.

[5] 30 CFR § 75.400
provides that “[c]oal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be cleaned up and not
be permitted to accumulate in active workings, or on diesel-powered and
electric equipment therein.”

[6] In both cases,
the judges’ reliance on redundant safety measures was misplaced and, to the
extent that their non-S&S findings were based on the wetness of the
accumulations, such reasoning has been rejected by the Commission. See
Cumberland Coal , 717 F.3d at 1028-29; Mach Mining , 40 FMSHRC at 4.

[7] I also note
that, had this condition continued unabated, there was a heightened likelihood
of the belt coming into contact with the take-up structure, creating another
source of friction and increasing the potential for an ignition.

[8] The Commission
has recognized that methane liberation can compound the likelihood of ignition
in accumulation cases. Mach Mining , 40 FMSHRC at 4.

[9] 30 C.F.R. §
75.340(a)(1)(i) provides, in relevant part that “ battery charging stations . . . shall
be housed in noncombustible structures . . . . When a noncombustible structure
or area is used, these installations shall be . . . [v]entilated with intake
air that is coursed into a return air course or to the surface and that is not
used to ventilate working places.”

[10] Consol acknowledges
that charging batteries liberate hydrogen. Resp’t Reply Br. at 6 (citing Lion
Mining Co. , 16 FMSHRC 921, 923-24 (Apr. 1994) (ALJ); Nats Creek Mining
Co. , 17 FMSHRC 115, 129-30 (Feb. 1995) (ALJ); Bethenergy Mines, Inc. ,
11 FMSHRC 1999, 2002-06 (Oct. 1989) (ALJ)).

[11] 30 C.F.R. §
75.512 provides, in relevant part, that “[a]ll electric equipment shall be
frequently examined, tested, and properly maintained by a qualified person to
assure safe operating conditions. When a potentially dangerous condition is
found on electric equipment, such equipment shall be removed from service until
such condition is corrected.”

[12] 30 C.F.R. §
75.202(a) provides that “[t]he roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.”

[13]
Payment
should be made electronically at Pay.Gov, a service of the U.S. Department
of the Treasury, at  https://www.pay.gov/public/form/start/67564508 .
Alternatively, send payment (check or money order) to: U.S. Department of
Treasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO
63179-0390. Please include Docket and A.C. Numbers.