Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

At Consol's Harvey Mine, nine hydraulic hoses extended beneath a lifeline in an alternate escapeway. Judge John Kent Lewis found that the placement could force miners to identify and maneuver around a trip hazard during a smoke-filled emergency, so the lifeline was not located for effective escape. He affirmed the violation of the lifeline standard and its significant and substantial designation. He also upheld the inspector's lost-workdays gravity finding, one-person exposure finding, and moderate-negligence designation. The judge assessed the proposed $768 penalty, and the Commission later affirmed the violation and significant and substantial ruling.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.380(d)(7)(iv)
• Outcome: The citation and significant and substantial designation were affirmed, and a $768 penalty was assessed.
• Subsequent review: The Commission affirmed the violation and significant and substantial designation in penn-2019-0094-commission.
• Key point: A lifeline positioned above protruding hoses did not provide an effective emergency escape route.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

March 9, 2021

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH      

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL

COMPANY
LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. PENN 2019-0094

A.C. No. 36-10045-486018

Mine: Harvey Mine

DECISION AND
ORDER

Appearances:              Mathew
G. Tom, Esq., & Kenneth J. Polka, CLR, Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor

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

Before:                        Judge
Lewis

STATEMENT
OF THE CASE

This case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act” or “Mine Act”). A
hearing was held in Pittsburgh, Pennsylvania. The parties subsequently
submitted briefs which have been fully considered in reaching the within
decision. [1]

LAW
AND REGULATIONS

30 C.F.R. § 75.380(d)(7) provides:

Each
escapeway shall be . . . [p]rovided with a continuous, durable directional
lifeline or equivalent device that shall be . . . [l]ocated in such a manner
for miners to use effectively to escape.

FINDINGS OF FACT AND CONCLUSION OF LAW

The
findings of fact are based on the record as a whole and the undersigned’s
careful observation of the witnesses during their testimony. In resolving any
conflicts in the testimony, the undersigned has taken into consideration the
interests of the witnesses, or lack thereof, and consistencies, or
inconsistencies, in each witness’s testimony and between the testimonies of the
witnesses. In evaluating the testimony of each witness, the undersigned has
also relied on his demeanor. Any failure to provide detail as to each witness’s
testimony is not to be deemed a failure on the undersigned’s part to have fully
considered it. The fact that some evidence is not discussed does not indicate
that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence
and failure to cite specific evidence does not mean it was not considered).

JOINT
STIPULATIONS

1. The Respondent
   was an "operator" as defined in § 3(d) of the Federal Mine Safety and
   Health Act of 1977, as amended (hereinafter "the Mine Act"), 30
   U.S.C. § 802(d), at the mine at which the Citation at issue in this proceeding
   were issued.

2. Harvey Mine is a
   “mine” as defined in § 3(h) of the Mine Act, 30 U.S.C. § 802(h).

3. Operations of the
   Respondent at the mine at which the Citations were issued 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 Judges pursuant to Sections
   105 and 113 of the Mine Act.

5. Harvey Mine is
   owned by the Respondent.

6. Payment of the
   total proposed penalty of $768.00 for the one remaining citation in this matter
   will not affect the Respondent’s ability to continue in business.

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

8. Citation No.
   9076458 contained in Docket No. PENN 2019-0094 was properly issued and served
   by a duly authorized representative of the Secretary of Labor upon an agent of
   Respondent at the date, time, and place stated in the Citation, as required by
   the Act.

9. Exhibit “A”
   attached to the Secretary’s Petition in Docket No. PENN 2019-0094 contains
   authentic copies of Citation No. 9076458 with all modifications or abatements,
   if any.

10. Citation 9076458
    remains in contest.

SB
at pp. 1-2. [2]

SUMMARY
OF TESTIMONY

Witnesses

Joseph
A. Vargo

At
the time of hearing, Inspector Vargo had worked for MSHA for over 12 years. T.

13. He initially worked as a coal mine inspector and later in 2012, had been
    working as an electrical specialist. Prior to working for MSHA, Vargo had
    worked as a coal miner for approximately 30 years. [3] T. 24.

Inspector
Vargo had issued Citation No. 9076458 to Respondent arising from conditions
observed at the Harvey Mine during a quarterly EO-1 inspection conducted on
February 21, 2019. T. 27; see also P-2.

While
traveling the No. 2 track entry of the 5A longwall section, which was
designated as an alternate escapeway, Inspector Vargo walked inby the No. 2
entry towards the working section. As he was walking, he observed hoses
protruding from a pump car into a walkway at the 47 ½
crosscut . The hoses were located directly under a lifeline. T. 33; 64. When
Vargo travelled underground, he was accompanied by Consol representative Troy
Hellen. [4]
T. 86.

At
hearing, photographs of the condition were admitted into evidence. However, because
neither Vargo nor anyone else at the scene carried a camera at the time the
condition was observed, the photographs were taken after abatement of the
condition. As such, the lifeline was not visible in the photographs. T. 34-40; see
also R-8A-8D.

The
lowest hose protruding from the pump car was fourteen inches vertical distance
from the mine floor. The highest hose was 38 inches vertical distance from the
mine floor. T. 41. The farthest extending hose was 43 inches away from the pump
car and into the walkway. T. 43. At the end of the 43-inch protrusion of hoses
into the crosscut, there was a rock dust bag on the ground. T. 46-47.

The
citation at issue cites a § 75.380(d)(7)(iv) violation, which requires that
lifelines be located in such a manner for miners to effectively use them to
escape during an emergency. [5]
T. 48.

According
to Inspector Vargo’s notes, the lifeline at issue was hung approximately 12
inches away from the pump car and 12 inches off of the roof of the mine. T. 52.

Miners
are trained to use taglines, or lines resembling clotheslines that attach to
each miner in the working section to keep them together in case of an
evacuation. Miners attach themselves to taglines after they have donned their
self-rescuers and proceed in a single-file line to the exit, guiding themselves
by keeping one hand on the lifeline. T. 53-54. In an emergency, miners are
trained to don one self-rescuer and potentially carry an extra depending on the
ratio of miners to self-rescuers. T. 52.

The
lifeline at issue was able to be pulled down from the art clips on the roof of
the mine and stretched up to 54 inches in length. At the time the condition was
observed, the safety representative tested whether the line stretched far
enough outward for miners to avoid the slip and trip hazard presented by the
hoses. Vargo determined that even when the line was stretched to its furthest
extent, the hoses would not be avoided. T. 57-58.

Inspector
Vargo indicated that the gravity of this citation was “Reasonably Likely,”
because in the event the lifeline had to be used, it would have been more than
reasonably likely that a miner would trip and fall over the obstruction in the
walkway and could have possibly cause a domino effect of miners tripping over
one another as they tried to quickly exit the mine. T. 59-60.

Inspector
Vargo marked this citation “Significant and Substantial,” and explained in his
testimony that he found an underlying violation of § 75.380(d)(7)(iv);
identified a slip, trip, and fall hazard posed by the hoses protruding out from
the pump car; determined that the hazard was likely to occur; and concluded
that injury would have been reasonably likely and reasonably serious. T. 61-63.

As
support for the likelihood of injury occurring, Inspector Vargo explained that
in an emergency, miners would be walking quickly and may not be able to see
where they are walking, particularly if there is smoke. In a smoke-filled
atmosphere, headlamps, flashlights, or reflectors would not help with
visibility. T. 64. Vargo contemplated a number of possible injuries including
bumps, bruises, dislocations, sprains, lacerations, and contusions, and also
mentioned the possibility of self-rescuers falling off if miners tripped or hit
the corner of the metal pump car. T. 62-64. Due to the possibility of
these injuries occurring, Vargo designated the likely injuries as “Lost
Workdays and Restricted Duty.” T. 66.

Vargo
testified that in the No. 2 entry, the air flowed from the area of the hoses
inby to the working section. In regular conditions, there are multiple
electrical installations outby that could catch on fire as well as diesel
transportation rides traveling the haulage route that could spread smoke up the
No. 2 entry to the working section if a fire were to occur. T. 65. In an
emergency situation, when ventilation is disrupted, all three entries could be
filled with smoke. T. 65-66. Vargo added that he was aware of ignitions
occurring in this mine in the past. T. 66.

The
fastest route for the miners to escape in the event of an emergency would be
the No. 2 entry, which means they would have passed by the cited
condition. T. 68. The citation indicates that ten miners would have been
exposed to the hazard. Vargo counted a stage loader operator, a supervisor, two
shieldmen, two shear operators, two mechanics, a maintenance foreman, and some
contractors in the working section at the time he issued the citation. T. 67. However,
Inspector Vargo marked one person as affected. His reasoning was that the first
person to reach the pump car would be the one who trips, falls, or slips. T.
68.

Inspector
Vargo marked negligence as “Moderate” because, in his estimation, the operator
should have known the condition existed. The condition had been in existence
for at least eight days, as the pump car had been moved eight days prior to the
issuance of this citation. During this period, three shifts of miners, including
the supervisor, traveled past the condition three times daily. T. 69-71.

On
cross-examination, Inspector Vargo was asked about stretcher tests. In a
stretcher test, a stretcher measuring 72 inches long by 16 inches wide is
navigated through an area and around obstacles to ensure that a stretcher would
fit through the area in the event of an evacuation. T. 177. Vargo clarified
that a stretcher test is not performed to check for slip and trip hazards. T. 79.
The Inspector denied that there was an issue of clearance and claimed that the
stretcher test was never discussed or asked for by anyone underground. T. 80;
84-85; 110.

The
pump car from which the hoses protruded was part of a “mule train,” which moved
as a unit on tracks along the longwall. The mule train was made of multiple
cars, one of which was the pump car. As the miners move farther away from the
mule train to retrieve the longwall panel, a “power move” occurs, wherein the
mule train is backed up so that the cables are positioned correctly. T. 88-89.

One
side of the mule train is referred to as the “walkway side,” while the other is
referred to as the “tight side” or the “off-side.” [6] T. 90-91.

Vargo
denied being told that the position of the lifeline above the hoses was usual
practice in the mine and that the miners were used to its location. He further
denied ordering the miners to move the lifeline to the tight side of the pump
car. T. 92-93.

Vargo
recalled Consol representative Troy Hellen explaining that the miners could
pull on the lifeline and maneuver around the hoses and onto the rock dust bags,
although he disagreed with counsel’s characterization of the bags as a bridge.
T. 94. He stated that he had no problem with the lifeline being positioned
above the rock dust bags as long as the lifeline did not pull back towards the
pump car. T. 95.

The
lifeline at issue was manufactured like a bungee cord that allowed miners to
stretch the line up to 54 inches. After measuring the lifeline, Vargo
determined that even at its furthest extent, the lifeline did not stretch far
enough to ensure that evacuating miners would avoid the tripping hazard. T.
99-100; 103.

Vargo
testified that the use of rock dust bags to even out the walkway was common,
but also mentioned that at the site of the citation, there were hoses
protruding above the rock dust bags where the bags were supposed to be flat. T.
100; 102.

Vargo
did not agree that the condition had been the same for five years and five
panels, explaining that if the car was not moved up to the point where it was
on the day the citation was issued, the hoses would have been eight feet back
and would have been in a position to lay flatter on the ground. T. 102-03.

Consol
typically positions the pump car so that its hoses are aligned with a crosscut,
but it is often difficult to center the pump car at a crosscut because of the
functions of other cars in the train. T. 110-11.

Vargo
addressed the Judge during his testimony in order to clarify that clearance was
not at issue in this citation, stating “I didn’t even consider the stretcher. I
considered where the lifeline was located was a tripping hazard.” T. 124. When
asked whether he considered the lifeline’s flexibility when issuing the
citation, the inspector replied that if the lifeline was over the top of
something, he would have cited it. In the event of an emergency, it’s not
likely that a miner under stress would have a clear enough mind to put serious
thought into maneuvering around obstacles. T. 125-26.

Although
Vargo recalled a meeting with several miners following his inspection, he did not
recall the names of the persons in attendance or what was discussed. T. 126-27.

In
the event that the lifeline passed through a mandoor that presented a tripping
hazard, Vargo claimed he would have cited it. T. 129. He also claimed that he
would cite uneven ground depending on the vertical distance of the deviation. T.
130-131.

Another
MSHA inspector, Inspector John Hayhurst, inspected the area of the condition
two days prior to the issuance of this citation and did not cite a violation
for the lifeline. T. 133. Vargo denied any knowledge of what Hayhurst was
inspecting when he was at the 47 ½ crosscut .
It is possible that he was on the opposite side of the crosscut, where the belt
is located, in which case he may not have observed the cited condition. T.
134-35; 137-38.

On
redirect examination, Vargo explained that there are directional cones in
different shapes connected to lifelines that signify caches of self-rescuers,
refuge alternatives, or mandoors. T. 137.

Vargo
stated that the “safety guy” with him decided how to abate the lifeline issue and
ultimately abated this particular citation in his presence. T. 138-39.

Vargo
clarified that the lifeline was not routed above the rock dust bags, but
instead hung directly over the hoses coming out of the pump car. T. 139-40.

Troy
Hellen

At
the time of hearing, Troy Hellen had worked at the Harvey Mine for approximately
10 years, and held the title of respirable dust coordinator at the Harvey Mine.
T. 153-54; 162. Hellen accompanied Inspector Vargo and another inspector during
the inspection on February 21, 2019. The citation at issue was served on Hellen
by Inspector Vargo. T. 154.

Hellen
took the photographs labeled as R-8 either later on the day of the inspection
or the day after the inspection in order to document the condition after the
citation was issued. With the exception of the lifeline having been moved,
Hellen testified that the photographs accurately depicted the scene. T. 158-59.

Vargo
and Hellen discussed their opposing views on the safest location of the
lifeline after Vargo informed Hellen he would be issuing a citation. Hellen was
of the belief that the lifeline was able to be stretched over and around the
hoses, allowing for a sufficient walkway on the walkway side of the entry. Hellen
recollected that Vargo thought the hoses were a problem, and that they
ultimately decided to move the lifeline, although Vargo did not instruct him to
do so. T. 159-60.

Hellen
testified that the lifeline had been hung in the same location and position for
five panels and five years. T. 162. That is, it was hung from the roof of the
mine down the middle of the walkway and over the protruding hoses. T. 167-68. Consol
dealt with the obstacle by building a bridge with rock dust bags or placing a
bridge over the hoses. T. 162-63.

The
exact location of the pump car, and the train in general, depends on multiple
factors and changes with each power move. T. 163. The pump car is necessary for
the operation of the longwall section. T. 177.

The
lifeline was on a bungee extension so that escaping miners could stretch the
line without losing contact. In Hellen’s opinion, miners would have had no
problem holding onto the lifeline and following a path around the hoses in the
walkway. T. 163-64. The use of rock dust bags to make an area as level as
possible is customary in mining. The crew at the longwall used rock dust bags
to level out various tripping hazards in the mine, including track ties that
stick out into the walkway. T. 164-65.

Consol
installed the lifeline with flexible extensions throughout its entire length in
order to allow miners flexibility when using the lifeline. T. 168-69. See
also R-6. Because of the bungee extension on the lifeline, the rock dust
bags used to even out the floor would not impair the miners’ ability to use a
stretcher in the area. T. 179. The miners working near the affected area walked
through the cited area several times per day. T. 169.

According
to Hellen, the lifeline could be used effectively where it was hung. T. 181-84.
In an interview requested by Hellen, Inspector Vargo spoke with several crew
members who conveyed their belief that a stretcher would be able to pass
through the walkway side in case of an emergency. [7] T. 181-184.
Hellen himself was of the opinion that the walkway side would pass a stretcher
test, and that escaping miners would have no difficulty navigating the area,
even with a disabled miner on a stretcher. T. 190.

In
Hellen’s opinion, the decision to move the lifeline from the walkway side to
the tight side was illogical. Hellen testified that the tight side was narrower
than the walkway side and had many more obstacles that needed to be moved or
held back, including hoses, airlines, mesh, catheads, knee-high cable trays,
cable troughs, head height airlines, and drisco lines. T. 184-85. He was of the
belief that the walkway side was “by far the better choice,” as it had fewer
things the miners would need to navigate around. T. 186.

Hellen
provided examples of conditions that would provide obstacles similar to rock
dust bags, including track crossties and rails, fallen ribs, and rocks, all of
which could be present in an emergency situation. T. 188-89.

On
cross-examination, Hellen did not dispute two recent instances in which a slip,
trip, and fall hazard led to reasonably serious injuries at the mine: (1) a
July 24, 2019 slip and fall that resulted in three stitches; and (2) an October
1, 2019 twisted ankle resulting in two lost workdays. T. 203.

On
redirect, Hellen stated that Consol will either need to place rock dust bags or
a bridge over the hoses regardless of the exact location of the pump car. Once
the car is parked in its new location, the miners ensure that the lifeline will
go around the obstacles without a problem. T. 225.

Chase
Shaffer

At
the time of hearing, Chase Shaffer was employed by Consol as a safety
inspector. He had worked at Harvey Mine for approximately six years. [8] T. 231-32. Shaffer
accompanied the group of MSHA inspectors who went underground in Harvey Mine on
February 21, 2019. He served as Consol’s company representative. He personally
escorted Inspector Rob Hutchinson. T. 233-34.

Shaffer
explained that the pump car from which the hoses protruded was one of several
cars in the mule train along the longwall. Other cars included equipment for
dusting, power, and hydraulic pumping. T. 234-35. Shaffer stated that the
longwall pump car was essential to the ongoing operation of the longwall
section. T. 246.

Shaffer
was aware that two days prior to the issuance of this citation, Inspector
Hayhurst had issued an unrelated citation at the 47 ½
crosscut . T. 239-40.

A
brief discussion took place between Shaffer and Vargo, in which Shaffer voiced
his opinion that the lifeline was better off in its original position than
where it was moved to for abatement. This was in part because the clearance on
the tight side was smaller and there were more obstacles (things coming off the
pump car and trough arms holding various cables) on the tight side, limiting the
space through which miners could move. T. 241-242. Mr. Shaffer also explained
to Vargo that the original position of the lifeline on the walkway side was
normal practice and expressed at hearing that leaving the lifeline in its
original position would have promoted consistency for the miners. T. 242.

According
to Shaffer, the biggest difference between a primary and secondary escapeway is
the mandatory required clearance. Primary escapeways must be six feet wide,
while secondary escapeways must only be four feet wide. Secondary escapeways
can be even narrower if necessary equipment is present, in which case they need
only be wide enough to safely egress with an injured or ill miner. Oftentimes,
questions pertaining to the adequacy of clearance are addressed by a stretcher
test. T. 245-46.

If
an emergency were to occur underground, Shaffer believed that miners would rely
heavily on their memory of their surroundings which, before this citation was
issued, had not changed in about five years. T. 251-52.

The
5A longwall mining crew had worked the longwall since its first panel. Each
panel is 15,000 feet in length and is worked for a little over a year. At the
time the citation was issued, the crew was on its fifth panel. T. 252. For the
most part, the 5A longwall crew was still made up of its original members. [9] Shaffer was
of the opinion that because this crew had worked in the same setup for five
years, an alteration to the familiar environment could “mess them up.” T. 253.

Harvey
Mine does not have any policies dictating the proper way to level out uneven
walking surfaces in the mine. However, the mine had used a few different
methods to flatten out areas where obstacles present themselves. Sometimes the miners
used rock dust bags. Other times, they placed an aluminum platform crossover
bridge over the hoses. In wetter places, the miners had even used brick. T.
253-54.

After
the miners and inspectors returned aboveground, Shaffer questioned the validity
of the citation during a second conversation with Vargo. Shaffer was of the
opinion that the walkway side would have passed a stretcher test if Vargo had
agreed to go back underground to test the area. T. 256. Shaffer did not believe
a violation existed. He believed the walkway was adequate in width and that the
flexibility allowed by the lifeline made the walkway no different from any
other part of the escapeway. T. 256-58.

On
cross-examination, Shaffer explained that the mine employs GMS contractors that
work in the longwall section along with the mine’s longwall crew. T. 262.

If
the lifeline was deployed by miners leaving the working section, the tension
clips holding the lifeline near the ceiling would release in a domino effect along
the entire length of the lifeline so that it could be used along the entire
escapeway. T. 270-72.

Adam
Machak

At
the time of his testimony, Adam Machak had been a coal miner for approximately
eight years and held the position of maintenance supervisor on the longwall for
approximately four years. [10]
T. 275-76. Machak had worked on all five longwall panels at Harvey Mine. T.

277. The crew that Machak worked with on the longwall were “pretty much the same
     exact crew” that had worked together in that area for the five years leading up
     to the issuance of this citation. Id.

At
the time Inspector Vargo arrived underground, Machak was working at the train
in the section. [11]
T. 278. Machak observed Vargo saying that he was not happy with the way the
lifeline was routed over the hoses or the bridge and recalls that Shaffer
offered to perform the stretcher test, which Vargo repeatedly turned down. T.

279. In an interview led by Inspector Vargo, members of the crew repeatedly expressed
     that a stretcher would be able to pass through the walkway side and that they
     would have been able to escape in an emergency regardless of whether the area
     was filled with smoke. [12]
     T. 280.

It was necessary for the
hoses to be in their position along the longwall panel in order for them to
transfer emulsion back to the tank and get pressure to the face. Consol dealt
with the obstruction caused by the hoses by making walkways around the hoses out
of rock dust bags. T. 281. See also R-8A. The walkway around the hoses
had been like this since the first panel. T. 282. Similarly, Consol also
placed rock dust bags over crossties, spaced between 50 and 60 feet apart along
the track, as makeshift bridges. [13]
Id.

Machak
testified that Vargo instructed the miners to move the lifeline to the tight
side of the track. T. 283. Machak echoed Hellen and Shaffer’s concerns about
moving the lifeline to the tight side of the track, stating that there was less
room, cables at knee height along the length of the track, and an airline and
drisco line hanging low enough from the roof that miners would have to duck
down to avoid potentially hitting their heads as they passed through. T.
284-85. Although Machak did not agree with the decision to move the lifeline,
he did not express this to Vargo at the time the lifeline was relocated. T.
283-84.

Consol
miners attend trainings that simulate conditions of a smoke-filled mine. In
these trainings, miners navigate through various obstacles in a smoke-filled
room. As part of this training, they must transfer a stretcher with an
“injured” miner through the smoke and through a mandoor to fresh air. T. 286. Miners
are taught to walk with slow and steady steps so that they do not rush in the
event of an emergency. T. 287.

On
cross-examination, Machak reiterated his belief that escaping miners would have
no problem following the rock dust bag path and keeping ahold of the lifeline
in the event of an emergency. T. 293-94.

CONTENTIONS
OF THE PARTIES

The
Secretary contends that the Respondent improperly allowed the positioning of
obstacles below a lifeline that hindered miners’ ability to use an escapeway as
an effective means of escape. Specifically, the Secretary argues that nine
hoses protruding from a pump car under the lifeline posed a slip, trip, and
fall hazard that could possibly lead to injuries. The Secretary states that
regardless of the lifeline’s ability to stretch outwards into the escapeway,
miners would have been forced to adapt to the adverse position of the lifeline
in the event of an emergency. The Secretary further contends that the cited
condition is significant and substantial in nature, reasonably likely to result
in lost workdays or restricted duty for one person, and is the result of
moderate negligence. Finally, the Secretary requests that the originally
assessed penalty of $768.00 remain unchanged.

The
Respondent contends that the citation should be vacated due to the Respondent’s
belief that the lifeline at issue was fully accessible to miners and would
serve as an effective means of escape in the event of an emergency. If the
Court does not vacate the citation, the Respondent requests that the citation
be modified from significant and substantial to non-significant and substantial
and from the originally assessed penalty of $768.00 to a lower penalty of
$100.00.

ANALYSIS

Issue I:      Was
Citation No. 9076458 properly issued in that the cited condition constitutes a
violation of 30 C.F.R. § 75.380(d)(7)?

Issue II:     Assuming
the citation was a violation of 30 C.F.R. §
75.380(d)(7) , was the violation significant and substantial in nature?

Issue III:    Assuming
the citation constitutes a violation, was the inspector’s gravity assessment of
lost work days or restricted duty and of one person being affected supported by
the record?

Issue IV:    Assuming
the citation constitutes a violation, is the moderate level of negligence
designated by the inspector supported by a totality of the circumstances?

Issue V:   Assuming
the citation constitutes a violation, is the originally assessed penalty of
$768.00 appropriate?

I:          Citation
No. 9076458 was properly issued in that the cited condition constitutes a violation
of 30 C.F.R. § 75.380(d)(7).

A violation of 30 C.F.R. § 75.380(d)(7)(iv) exists when there is no “continuous, durable directional lifeline in the alternate
escapeway” or the lifeline is not “located in such a manner for miners to use
effectively to escape." 30 C.F.R. § 75.380(d)(7)(iv). At hearing and in their post-hearing brief, the Respondent
challenged that a violation existed and argued that the lifeline at issue could
be used effectively. Furthermore, the Respondent argued that this citation “ expand[s]
the application of § 75.380(d)(7)(iv) beyond
its clear language.” T. 181-84; 280; see also RB at p. 15.

The Secretary cites to the same section of the Act as support
for his opposing argument, contending that the lifeline at issue was not
located in such a manner that miners could use it effectively to escape the
mine in the event of an emergency. Id. at 7. For the reasons that
follow, this Court finds that the conditions that existed on February 21, 2019,
violated 30 C.F.R. § 75.380(d)(7).

Citation No. 9076458 describes the violation as
follows: “The continuous durable directional lifeline located at 47 ½ crosscut
No. 2 track entry in the 5A operating longwall section MMU 001-0 is not located
in such a manner for miners to use effectively to escape. There are 7 two inch
hydraulic hoses and 2 three inch hydraulic hoses that extend out from the pump
car 43 inches into the walkway. The vertical distance from the mine floor to
the top of the hoses range from 14 inches to 38 inches. The lifeline is located
directly above the subject hoses. This entry is the alternate escapeway for
this section.” Ex. A.

Inspector Vargo testified that the violation was issued after he
came upon an area in the escapeway “where hoses were protruding out of the pump
car. And directly overhead of that was a lifeline.” T. 33. Under examination by
CLR Polka, Inspector Vargo testified that his primary concern in issuing the
violation was a “slip and trip from the hose that’s protruding out from the
pump car that the miners would trip over using the lifeline.” T. 16-17; 58; 62;
67-68; 78; 80. Inspector Vargo also testified that, in his opinion, the
location of the lifeline was reasonably likely to cause an injury in the case
of an emergency, particularly if the area was filled with smoke and visibility
was limited. T. 62-63. The possible injuries contemplated by Inspector Vargo
included bumps, bruises, dislocations, sprains, lacerations, and contusions. T.
63-64.

The question before the Court is whether
the lifeline’s location above the protruding hoses posed the risk of a trip and
fall hazard and whether the lifeline is located in such a manner that miners
can use it effectively to escape in an emergency situation. As noted in Black
Beauty Coal Co. and American Coal Co., the Commission interprets
“effectively” in the context of § 75.380(d)(7)(iv) to mean “quickly and
safely.” Black Beauty Coal Co., 33 FMSHRC 1174, 1176 (May 2011) (ALJ), aff’d
36 FMSHRC 1121 (May 2014); American Coal Co. , 29 FMSHRC 941 (Dec.
2007).

In American
Coal Co. , the Commission
discussed the importance of escapeways and concluded that:

There is no
disputing that escapeways are needed for miners to quickly exit an underground
mine and that impediments to a designated escapeway may prevent miners from
being able to do so. The legislative history of the escapeway standard states
that the purpose of requiring escapeways is to allow persons to escape quickly
to the surface in the event of an emergency.

S. Rep
No. 91-411, at 83,  Legis.Hist. , at 209 (1975). 29 FMSHRC 941 (Dec. 2007).

In
Black Beauty , the ALJ stated that “the existence of a continuous
lifeline is the means to quickly and safely exit the mine” and stressed “the
danger of not being able to access or use the lifeline in the event of an
emergency where visibility is reduced and miners must rely upon the tangible
nature of the lifeline to quickly and safely escape the mine.” 33 FMSHRC at
1177-78. The
Commission
later affirmed the ALJ’s conclusion that a violation of § 75.380(d)(7)(iv)
occurred because the lifeline was located at a height of seven to twelve feet
above the mine floor and could not be used effectively. 36 FMSHRC 1121.

This
Court does not find Respondent’s argument that the lifeline was in an
appropriate position and readily accessible persuasive, even given its ability
to stretch into the escapeway. The ALJ in Twentymile held that a 1-inch
water hose that ran underneath a lifeline presented an obstruction to miners,
and that asking miners to let go of the lifeline, reach around a 1-inch water
hose that ran underneath the lifeline, and find the lifeline again on the other
side of the hose constituted an impediment to a quick escape in difficult
conditions. Twentymile Coal Co. , 34 FMSHRC 2293 (June 2010) (ALJ). Here,
even if miners never lost contact with the lifeline, its position would have
required escaping miners to identify the protruding hoses as an obstacle and
maneuver around them in order to escape quickly and safely. In emergency
situations, miners “must exit the mine as quickly as possible.” Id at
2303.

Respondent
argued in its post-hearing brief that Inspector Vargo cited the wrong standard,
and that the Inspector confused § 75.380(d)(7)(iv)
with § 75.380(d)(1), which covers obstacles and
tripping hazards. At hearing, there was much
testimony directed toward various escapeway conditions, including the width of
the escapeway and stretcher clearance. See  T. 83-85; 123-24;
176-78; 182-84; 191; 248. Such conditions may or may not constitute violations
in and of themselves. However, in reaching this decision, this Court only
considered conditions that specifically relate to the location of the
lifeline and whether miners could have used it as an effective means of escape.

Considering, therefore, the record  in toto  and
Petitioner’s persuasive arguments on point, this Court finds Citation No.
9076458 to be properly issued.

II:        The
violation was correctly designated as significant and substantial.

For nearly a generation, the Commission's analytical framework for
evaluating purported S&S violations rested upon the four-step analysis set
forth in Mathies Coal Co. , 6 FMSHC 1, 3-4 (Jan. 1984). Under the Mathies
test, a violation was S&S if:

(1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard; (3) a reasonable likelihood that the hazard contributed to will result
in injury; (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co. , 6 FMSHRC 1, (Jan. 1984).

In MSH A v. Newtown Energy, Inc., 38 FMSHRC 2033,
2036-2040 (Aug. 2016), the Commission modified Mathies by adding a
“reasonable likelihood" inquiry to the second step. Under Newtown ,
the S&S analysis inquires whether:

(1) there has been a violation of a mandatory safety standard;

(2) 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;

(3) based upon the particular facts surrounding the violation, the
occurrence of that hazard would be reasonably likely to result in an
injury; and

(4) any
resultant injury would be reasonably likely to be reasonably serious. 

MSHA v. ICG Illinois, LLC, 38 FMSHRC 24 7 3, 2483
(Oct. 2016) (Althen Dissenting).

The Commission, in Newt own , held that the proper
focus of the second step in Mathies was the likelihood of the occurrence
of the hazard the cited standard is designed to prevent. Newtown , 38
FMSHRC at 2037, FN 8. The majority further emphasized that it was essential for
the judge to adequately define the particular hazard to which the violation
allegedly contributed. Id. at 2038. The starting point for determining
the hazard should be the actual cited section. Id.

For the following reasons, this Court finds that the Secretary has
established that all four prongs of Mathies/Newtown have been met, and
therefore Citation No. 9076458 was properly designated as S&S.

a.       
Violation of a Mandatory Safety Standard 

The facts
and discussion supra establish a violation of 30 C.F.R. § 75.380(d)(7), which is a mandatory safety standard.

b.       
Reasonable Likelihood of the Occurrence of the Hazard 

The
hazard at issue is a trip and fall hazard posed by the position of hoses below
a lifeline. The Commission has repeatedly stated that
when emergency standards are at issue, the Court should analyze them in the
context of an emergency. Emergency standards “are different from other mine
safety standards,” as they are “intended to apply meaningfully only when an
emergency actually occurs.” ICG Illinois,
LLC , 38 FMSHRC 2473, 2476 (Oct. 2016), citing
Cumberland Coal Res., LP , 33 FMSHRC at 2367, aff'd , 717 F.3d 1020
(D.C. Cir. 2013). Accordingly, when determining whether a violation of an
emergency standard is significant and substantial in nature, the violation
should be considered in the context of the emergency contemplated by the
standard. Id. , citing Spartan Mining Co. , 35 FMSHRC 3505,
3508-09 (Dec. 2013).” [14] This Court finds that there was a reasona ble likelihood that
a trip and fall would have occurred as miners traveled through the No. 2 entry.
This entry is the fastest route out of the section and is traversed daily by
three shifts of miners traveling to and from the 5A longwall. T. 68-69. At the time
the citation was issued, Inspector Vargo counted 10 miners working in this
section. T. 66-67.

The occurrence of a trip and fall is particularly likely in the
event of an emergency when miners would be hurrying to evacuate the mine in
dangerous conditions. At hearing, Inspector Vargo testified that miners would
have difficulty identifying and avoiding the hoses in a smoky atmosphere. T.
63; 132. Inspector Vargo’s concern about the difficulty of maneuvering with
limited vision was further supported by parts of Troy Hellen and Chase
Shaffer’s testimonies. T. 187; 222; 250-51.

This Court has carefully considered the arguments advanced by
Respondent that miners working in the cited area were accustomed to locating
and avoiding the hoses protruding from the pump car as they moved through the
area. However, this Court does not find the arguments persuasive for several
reasons. First, the location of the pump car constantly changes, as it is part
of a mule train that moves as a unit along the longwall. Second, in the event
of an emergency, the miners exiting the section may not be thinking clearly due
to alarm or confusion. Third, the prolonged presence of a violation does not
justify its existence or make the condition acceptable.

Given these considerations, it is reasonably likely that in the
event of an emergency, miners using the escapeway would be reasonably likely to
trip and fall over obstacles located below the lifeline.

c.       
Occurrence of the Hazard Would Be Reasonably Likely to Result
in an Injury 

In the event of an emergency, it is reasonably likely
that miners hurrying to escape the section in dangerous conditions could trip
and fall over the hoses located below the lifeline. The trip and fall hazard
would be reasonably likely to result in injuries including strains, sprains, and
fractures for the miner or miners who tripped and fell as well as for those
around them. See, e.g., Maple Creek Mining, Inc. , 27 FMSHRC 555, 562-63
(Aug. 2005) (affirming a Judge’s finding that a trip and fall in a mucky
escapeway would lead to leg or back injuries);  Buffalo Crushed Stone
Inc. , 19 FMSHRC 231, 238 n.9 (Feb. 1997) (finding that slipping on a
walkway would reasonably result in head injuries or finger or wrist
fractures);  S. Ohio Coal Co. , 13 FMSHRC 912, 918 (June 1991)
(affirming a Judge’s conclusion that a trip-and-fall accident would result in
injuries such as “sprains, strains, or fractures”). Additionally, fallen miners
or equipment dislodged during the fall could become obstacles to others
attempting to escape, increasing the likelihood of an injury occurring.

d.       
Any Injury Resulting from the Occurrence of a Trip and Fall Would
Be Reasonably Likely to Be Serious in Nature 

At hearing, MSHA Inspector Vargo credibly testified
regarding the serious injuries that could be
caused by a trip and fall over the hoses, including bumps, bruises,
dislocations, sprains, lacerations, and contusions from falling onto the pump
car or to the mine floor. T. 63-64. The Commission has long
recognized that broken bones and other injuries likely to result from a
trip-and-fall accident are sufficiently serious in nature to support an S&S
designation.  See, e.g., Maple Creek Mining , 27 FMSHRC 555,
562-63(affirming a Judge’s conclusion that leg and back injuries arising from
the failure to maintain an escapeway in a safe condition constitute reasonably
serious injuries);  Buffalo Crushed Stone Inc. , 19 FMSHRC 231, 238
(concluding that finger or wrist fractures resulting from slipping on a walkway
constitute reasonably serious injuries));  S. Ohio Coal Co. , 13 FMSHRC
912, 918 (June 1991) (affirming a Judge’s conclusion that a trip-and-fall
accident would result in reasonably serious injuries including sprains,
strains, or fractures). The Inspector also noted that self-rescuers could be dislodged. T.
63-64. Because the hazard was located in an escapeway, miners would be moving
through the area quickly and may experience limited visibility. A trip and fall
could result not only in an immediate injury, but may also delay evacuation of
the mine or require more individuals to enter the mine to perform a rescue,
leading to serious injury or even death. Given this, the occurrence of a trip
and fall would reasonably be likely to result in a serious injury.

III:
      The
inspector’s gravity assessment of lost work days or restricted duty and of one
person being affected is more than supported by the record.

The
Commission has noted that the “gravity penalty criterion under section 110(i)
of the Mine Act, 30 U.S.C. § 820(i), ‘is often viewed in terms of the
seriousness of the violation.’”  Consolidation Coal Co. , 18 FMSHRC
1541, 1549 (Sept. 1996) (citing  Sellersburg Stone Co. , 5 FMSHRC
287, 294-95 (Mar. 1983),  aff'd , 736 F.2d 1147 (7th Cir.
1984);  Youghiogheny & Ohio Coal Co. , 9 FMSHRC 673, 681 (Apr.
1987)). The gravity analysis focuses on factors such as the likelihood of
injury, the severity of an injury if it occurs, and the number of miners
potentially affected.” Sec’y of Labor v. Newtown Energy, Inc. , 38 FMSHRC
2033, 2049 (2016). Considering the serious nature of a potential injury
resulting from a trip-and-fall accident, discussed supra , the
inspector’s gravity assessment of lost work days or restricted duty is more
than supported by the record. Miners exiting the mine in an emergency would be
travelling quickly and may not be not be thinking clearly, making serious
injuries including bumps, bruises, dislocations, sprains, lacerations, and
contusions more likely. Additionally, the presence of smoke could severely
limit visibility and increase the risk of disorientation and injury.

The
inspector’s assessment of one person affected is also supported by the record. In
the event of an evacuation, it is unlikely that more than one miner attached to
the tagline would trip, fall, or slip over the protruding hoses while exiting
single file.

IV:       The
moderate level of negligence designated by the inspector is supported by a
totality of the circumstances.

An
operator is moderately negligent when “the operator knew or should have known
of the violative condition or practice but there are mitigating circumstances.”
30 C.F.R. § 100.3 Table X. This Court finds that Respondent knew or should have
known that this condition existed and posed a reasonable risk of injury.
Respondent does not deny its awareness of the condition, which existed for
approximately five years. T. 162; 251-53. At hearing, Respondent argued that miners working in the cited area were accustomed to
locating and avoiding the protruding hoses as they travelled through the
escapeway multiple times per day. Given that the operator knew or
should have known of the condition, this Court finds that the moderate level of
negligence designated by the inspector is supported by a totality of the
circumstances.

V:        The
originally assessed penalty of $768.00 is appropriate.

The
principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well
established. Section 110(i) of the Mine Act delegates to the Commission and its
judges “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s penalty
regulations. Am. Coal Co. , 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the
Act requires that in assessing civil monetary penalties, the judge shall consider
the six statutory penalty criteria:

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

30
U.S.C. 820(i).

The Secretary has proposed a penalty of $768.00 for
the violation cited in Citation No. 9076458. I have considered and applied the
six penalty criteria found in Section 110(i) of the Act and, for the
following reasons, affirm the Secretary’s assessment.

The
history of assessed violations has been admitted into evidence and shows 230
violations by this operator in the 15-month period prior to the issuance of the
citation, seven of which involve a similar standard. P-4. I have addressed
negligence and gravity in the discussion above and have found that the
violation was the result of moderate negligence and was reasonably likely to result
in lost workdays or restricted duty to one person. The mine is a large mine
that produces well over the annual tonnage required to fall into the largest
category of mines under 30 C.F.R. § 100.3. The parties have stipulated
that an assessment of $768.00 would not affect the operator’s ability to
continue in business. See supra J.S. 6. Finally, I have considered that the
citation was abated in good faith. Based on the foregoing, this Court finds
that a penalty of $768.00 is appropriate.

ORDER

The Respondent, Consol Pennsylvania Coal Company, is
ORDERED to pay the Secretary of Labor the sum of $768.00 within 30 days
of this order.
[15]

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

Kenneth
J. Polka, CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt.
Pleasant, PA 15666; [email protected]

James
P. McHugh, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329; [email protected]

Craig
Aaron, CONSOL Energy Inc., 1000 CONSOL Energy Drive, Suite 100, Canonsburg, PA 15317;
[email protected]

[1] The Decision
Approving Partial Settlement issued by this Court on February 10, 2020, disposed
of Citation Nos. 9080394 and 9079324.

[2] “T” refers
to the hearing transcript. “P” refers to the Secretary’s exhibits. “R” refers
to Respondent’s exhibits. “SB” refers to Secretary’s post hearing brief and
“RB” refers to Respondent’s post hearing brief.

[3] See T.
23-25 for a detailed description of Vargo’s mining experience and specialized
certifications.

[4] Inspector
Rob Hutchinson, Inspector Steve Cofuss (Vargo’s supervisor), and another
inspector were underground with Vargo, but split off to do the permissibility
on the longwall face before Vargo encountered the condition at issue. T. 87;
105.

[5] Lifelines
are thin nylon lines resembling clotheslines that are hung in mines for miners
to hold onto and follow when escape is necessary, particularly when vision is
obstructed by smoke. T. 48-49. Tactile signals are placed along lifelines to
signify emergency resources such as mandoors, self-rescuers, or caches nearby.
T. 49-50.

[6] Vargo
repeatedly denied his familiarity with the term “tight side.” Hellen later
stated that he would be surprised if an inspector was not familiar with the
word. T. 156. For the remainder of this Decision, the “tight side,” or
“off-side,” of the track will be referred to as the “tight side” in the
interest of uniformity.

[7] Hellen
recollects that the group of crew members was made up of: Abraham Dickie,
stageloader operator; Scott Yakicic, face foreman; Larry Anderson, outby
foreman; Mike Petrich, maintenance P&M; and himself. T. 181.

[8] For other
mining positions held and certifications received, see T. 230-234.

[9] Shaffer
estimated that of the six longwall crew members, five were original. T. 262.

[10] See T.
275-76 for other mining positions held and certifications received.

[11] The train
is also referred to as the “power car.” Machak believes he was doing something
along the lines of changing emulsion filters at the time the inspector arrived.
T. 278. See also R-8C.

[12] Machak
identified two crew members that were questioned by Vargo: Abraham Dickie and
Scott Yakicic. T. 280.

[13] Crossties
are also referred to as “picker ties.” T. 282.

[14] The likelihood of an emergency occurring is irrelevant to
the Mathies  inquiry.  See Black Beauty Coal Co. , 36
FMSHRC 1121, 1124 (May 2014); Cumberland ,   717 F.3d at 1027; ICG
Illinois , 38 FMSHRC 2473, 2476.

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