Secretary of Labor v. Consol Pennsylvania Coal Co., LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued two mine-specific safeguards concerning wear on a slope-hoist rope and supplies or debris beside the slope track at Consol's Bailey Mine. Judge John Kent Lewis found the first safeguard invalid because existing wire-rope standards already addressed the alleged hazard, and he also found that MSHA failed to prove an actual transportation hazard or give specific corrective instructions. He found the second safeguard facially valid but concluded that MSHA did not prove the supplies and debris created an actual transportation hazard and again gave inadequate notice of the required remedy. The parties had stipulated that corrected proposed penalties would have been $135 per citation. The judge vacated and dismissed both safeguard violations; this release was later superseded by an amended decision.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.1403; 30 C.F.R. §§ 75.1430-75.1438
• Outcome: Both hoist-related safeguard violations were vacated and dismissed.
• Key point: A mine-specific safeguard cannot duplicate an existing mandatory standard, and it must identify an actual hazard and a sufficiently specific remedy.

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

September 29,
2020

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL CO., LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. PENN 2019-0100

A.C. No. 36-07230-490127

Mine: Bailey Mine

DECISION AND
ORDER

Appearances:              John M.
Strawn, Esq., & Kenneth J. Polka, CLR, Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor

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

LAW
AND REGULATIONS

Section 314 (b)
of the Act and Section 75.1403 of the Regulations provide:

Other
safeguards adequate, in the judgment of an authorized representative of the
Secretary to minimize hazards with respect to transportation of men and
materials shall be provided.

Section 75.1434 Retirement
Criteria provides:

Unless
damage or deterioration is removed by cutoff, wire ropes shall be removed from
service when any of the following conditions occurs:

(a)    The number of
broken wires within a rope lay length, excluding filler wires, exceeds either—

(1)   Five percent of
the total number of wires; or

(2)   Fifteen percent
of the total number of wires within any strand;

(b)   On a regular lay
rope, more than one broken wire in the valley between strands in one rope lay
length;

(c)    A loss of more
than one-third of the original diameter of the outer wires;

(d)   Rope
deterioration from corrosion;

(e)    Distortion of
the rope structure;

(f)    Heat damage from
any source;

(g)   Diameter
reduction due to wear that exceeds six percent of the baseline diameter
measurement; or

(h)   Loss of more
than ten percent of the rope strength as determined by non-destructive testing.

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 Bailey Mine
   (“Mine”) is subject to the jurisdiction of the Federal Mine Safety and Health
   Act of 1977 (“Act”).

2. The
   Mine is owned and operated by Respondent, Consol Pennsylvania Coal Company,
   LLC.

3. The
   presiding Administrative Law Judge has jurisdiction over the above-captioned
   proceedings pursuant to Section 105 of the Act.

4. The
   parties stipulate to the authenticity of their exhibits, but not to the
   relevance or truth of the matters asserted therein.

5. The
   subject citations and safeguards were served by a duly-authorized
   representative of the Secretary upon agents for Respondent on the dates and
   times and the placed stated therein.

6. Respondent
   demonstrated good faith in abating the alleged conditions after the issuance of
   the safeguards and citations.

7. The
   penalties proposed on the Exhibit A attached to the Petition for Assessment for
   Citation Nos. 9076455 and 9076456 are incorrect. The Petitioner agreed to
   reduce the gravity of the citations to no likelihood, no lost workdays,
   non-S&S, and also the negligence to none at a pre-penalty settlement
   conference. The proposed penalties should have been $135 for each citation. The
   mine tonnage, controller tonnage and number of violations represented in the
   Exhibit A attached to the Petition for Assessment are correct.

8. Payment
   of the total proposed penalty of $270 in this matter will not affect
   Respondent’s ability to continue in business.

T.
4-6 [1]

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. [2] T. 14.

Inspector
Vargo had issued a technical citation to Respondent arising from Vargo’s
issuance of a safeguard (No. 9076448) in connection with unsafe conditions
observed at the operator’s slope track and hoist on August 13, 2018. T. 15-18; see
also P-1.

Inter
alia , Vargo had noted a wear pad on the slope that had been worn down
approximately one and three quarters inches. T. 17.

The
purpose of the wear pads was to keep the hoist rope from coming into contact
with anything that could cause damage to the rope. T. 19. The slope hoist rope
should not come into contact with any abrasive material such as gravel, rock,
slate, or coal that would cause it damage. T. 20. Excessive wear of the wire
rope could lead to the potential of the rope breaking, sending anyone in the
car to the bottom at an excessive rate of speed. T. 21-22.

The
regulations require that non-destructive testing of the rope—either through
measurements or x-rays—be performed every six months. T. 22. The concern is
that, during the six month interval, broken wires or metallic loss might not be
detected by visual examination. T. 23.

At
hearing, photographs were admitted into evidence, which depicted wear on the
slope pads in August 2018, leading to the safeguard in question being issued.
T. 23-28; P-5.

There
were approximately 100 wear pads on the slope track, which had a 14-degree grade.
T. 29, 44. Water could get into the valleys of the steel hoist rope, causing
corrosion. T. 29. There were numerous escalation reports indicating the rope
was either kinked or damaged. T. 30; see also P-9. Photographs of the
hoist rope, taken in August 2018, revealed what appeared to be broken wires in
the middle of the rope. T. 32; see also P-5. Photographs also revealed
the rope being in contact with coal, and slate/rock mixture. T. 33; P-5.
Materials on the tracks during the hoist lowering or raising could cause brake
damage and loss of control. T. 39-40. Someone not riding in a car could be
exposed to a slip and fall hazard. T. 41.

On
cross-examination, Inspector Vargo agreed that he had no experience working on
hoists prior to coming to MSHA. T. 45. He also testified that he had never
worked on a hoist slope during his MSHA career. T. 45. His training regarding
hoists came from a ½ day training at the mining academy and annual refresher
training. T. 46.

Vargo
had not issued any safeguards between 2007 and August 2018. T. 27. The
safeguards at issue were his first issuances. T. 47.

In
order to issue a safeguard there must be an actual hazard with respect to the
transportation of men and materials and the hazard must not already be covered
by a mandatory safety standard. T. 47-48.

Vargo
had found the hazard associated with Safeguard No. 9076448 to involve damage
and wear to the slope rope. T. 48. He testified that wear pads were cut through
or missing. T. 48. There was contact with steel grating, and trough rollers
were not turning. T. 48. There was metallic loss and distortion found in the
rope. T. 48.

Vargo
found that the hoist rope was compliant with the mandatory standards addressing
hoist rope retirement criteria on August 7, 2018. T. 51.

A
hoist rope, pursuant to § 75.1434, must be removed from service when the number
of broken wires within a rope lay length, excluding filler wires, exceeds 5% of
the total number of wires,  or 15% of the total number of wires within any
string. T. 52. Also pursuant to § 75.1434, a rope must be retired or
reterminated if its diameter reduction exceeds 6% of the initial baseline. T.
53.

Vargo
had not issued a citation under § 75.1434 (h) because the standard specified a
loss of more than 10% of rope strength and the rope strength loss was not as yet
beyond 10%. T. 55.

Vargo
testified that a hazard existed, even though the slope rope was still compliant
with the standard, because the rope “was right at the borderline.”  T. 56. One
more trip could have put it over the borderline. T. 56. Everything that the
rope was in contact with was abrasing the wire, the hoist rope. T. 56.

Although
Vargo had recommended that wear pads be replaced, he did not record such in his
notes. T. 58.

Wear
pads were approximately 24” by 24” by 2” thick. T. 59. In his August 15, 2018
citation, Vargo noted a wear pad worn down to 1 ¾”. T. 59; see also P-2.
Vargo had not recorded in his notes that he had observed that 50-60 wear pads
were worn or missing. T. 60. He had been told of such by a mine foreman. T. 60.
Vargo himself had taken no measurements of the pads. T. 61.

Vargo
had not inspected the slope on August 7, 2018. He had inspected the slope
hoist, the brakeman car, the slope hoist building, and the remote hoist
building. T. 61-62.

MSHA
had not published any directives as to when wear pads should be replaced. T.

64. A wear pad that was worn down one and three quarter inches would not be serving
    its function. T. 64. The photographs in Exhibit P-5 depicted the slope rope as
    it looked when it was not in operation. T. 65.

Vargo
agreed that the slope rope would be exposed to rain and snow at times. T. 72.
He believed that the two furthest trough rollers inby receive the most stress.
T. 73. However, he conducted no further inquiry to determine whether this was
so. T. 73. He further had not determined how much, if any, the two static
rollers contributed to slope rope deterioration. T. 74.

There
was no mention of the slope rope contacting concrete in the safeguard or
Vargo’s notes. T. 78.

Exhibit
P-8 contained reports of the slope hoist being down for more than 30 minutes.
Vargo agreed that the March 9, 2018 report concerning braking system lock-up
had nothing to do with rope deterioration. T. 78-79. Another report indicating
that the hoist had gone down also was not associated with slope rope issues. T.
79; P-8, 3. Vargo further agreed that a kink in a hoist rope could happen to a
new rope. T. 80.

On
August 13, 2018, Vargo determined that the entire length of the rope contacted
material, rock, coal, slate, gravel, and water. T. 85. Vargo further stated
that this was not unusual for a slope rope. T. 86.

As
to Safeguard No. 9076449, Vargo had observed mine supplies along the slope. He
did not know whether any of the material actually contacted the slope car. T. 87; P-4. He had seen some material
in the middle of the track contacting the rope but had not noted such in the
safeguard. T. 87. Although he slipped on a roof plate while walking the slope,
he had again not noted such in the safeguard. T. 88-89. Vargo agreed that no
one regularly walked the slope. T. 89. He further agreed that, provided
supplies were against the rib and not contacting the slope car, they would not
create a clearance issue or hazard. T. 89-90.

In
reference to the summary of safeguards, Vargo agreed that there was no written
explanation as to what requirements were called for in order to have “properly
maintained” wear pads and rollers under Safeguard No 9076448. T. 91-92; R-18.
The “above mentioned material” in the safeguard referred to slate, rock,
gravel, mud, coal, and water. T. 92. Vargo again agreed that having supplies
pushed against the rib in the slope, which did not contact the slope car would
not be a violation of Safeguard No. 9076449. T. 93. Vargo further agreed that
an individual walking up the slope belt would have a handrail to hold onto. T.
95.

On
redirect Vargo further clarified that mine operators are provided with the full
text of safeguards that have been issued and not just the summary of safeguards
as contained in R-18. T. 96.

Slope
wear pads are not doing their jobs if they don’t keep the hoist rope off the
ground and from contact with other materials. T. 97.

At
the time of Vargo’s hoist rope inspection in August 2018, Bailey Mine’s next
non-destructive test (“NDT”) was scheduled for October 2018. T. 98. Vargo,
however, agreed the mine operator changed or reterminated portions of their
ropes between the times of the mandatory six month non-destructive tests. T.

99. He additionally agreed that Baily Mine conducted daily visual rope exams
    that included the hoist rope. T. 99.

Michael
Snyder

At
the time of hearing, Michael Snyder had worked for MSHA for 33 years. T. 103.

He
described various photographs taken at Bailey Mine on August 17, 2018,
contained in Exhibit P-5. T. 104. These included: the hoist rope (P-5, 1 and
2); the rear of the brakeman car to which the hoist rope was attached (P-5, 3);
the hoist rope running through debris (P-5, 4); the hoist rope drum (P-5, 5);
wear pads covered with debris (P-5, 6); another photo of the rope from a longer
perspective, running on top of the cross ties (P-5, 7); another view of the
rope cutting through the wear pads into the dirt (P-5,  8). T. 104-108.

The
rope was 1 5/8” in diameter and the wear pads about 2” thick. T. 108. A
non-destructive examination was taken of the rope at the worst section T. 108.
The non-destructive test was “right at ten percent loss of metallic area.” T.

108. Three physical diameter measurements were “right at approximately six
     percent.” T. 108.

The
hoist rope diameter measurements had been taken “at the worst spot” of 1.572,
1.571 and 1.572—1.571 being the smallest diameter reading. T. 110; see also
P-6. By dividing 1.71 by 1.67, there was found to be a 5.93% diameter
reduction. [3]
T. 110. Any reduction exceeding 6% met the regulation retirement criteria. T.

110. While the diameter had not yet exceeded the regulation, “it was right at
     the edge.” T. 110.

There
had been a non-destructive test performed on April 21, 2018—about one month
after the rope had been installed. T. 111. Given that the next scheduled 6-month
examination was set for October 21, 2018, and the inspection at-issue was on
August 7, 2018, it would be 6 weeks before the hoist rope would have been
examined again. T. 111.

Lubrication
allows the hoist rope wires to “move freely around.” T. 111. Exhibit P-5
contained a photograph taken on August 7, 2018 of the spool showing a dry rope.
T. 111-112. Areas having lubrication would appear darker. T. 113.

Exhibit
P-7 contained the memo sent to the district manager of the Mine Safety and
Health Administration Russell Riley by Snyder, detailing the August 7, 2018
non-destructive test findings. T. 114. Based on his observations and testing,
Snyder recommended that more frequent non-destructive examinations be
conducted—every 4 months rather than 6-month intervals. T. 115.

On
cross-examination Snyder agreed that there were no violations or hazards found
in respect to the hoist rope on August 7, 2018. T. 119-120.

In
determining whether there is diameter reduction exceeding six percent of the
baseline diameter measurement, pursuant to § 75.1434 (g), calipers could be
used. T. 120-131. The hoist rope strength was “right at the limit” but
“compliant” within the limits of § 75.1434 (h). T. 122. The hoist rope also did
not meet the broken wires retirement criteria contained in § 75.1434 (a). T.

124. If a non-destructive test reveals more than a 10% loss of rope strength or
     a distortion of rope structure, the entire rope may not require changing out,
     but instead only require a retermination. [4]
     T. 125.

Snyder
was not aware that the operator reportedly conducted a daily examination of the
hoist rope. T. 126-127. He agreed that approximately 350 feet of hoist rope was
reterminated on August 7, 2018. T. 129. The rope itself was approximately 3,000
feet long. The rope (after the retermination) was not changed out in entirety.
T. 130. Snyder had recommended wear blocks be installed to keep the hoist rope
off the ground between the head shiv and the top of the slope. T. 131-132.
Snyder was not aware of any criteria for determining whether a wear pad is worn
out. T. 132. Nor was he aware of anything published by MSHA in reference to
such. T. 132-133. The wear pads protect the rope by allowing the rope to cut
through them. T. 133. Until the rope cuts the pad in two, the rope remains off
the ground and does not sustain additional abrasion which would accelerate its
wear. T. 133.

When
the slope rope is in actual operation, the tension in the rope would be
different. T. 135. As the conveyance travels down the slope, the rope tension
is going to increase by the weight of the rope that travels down the slope. T.
136.

Snyder
disagreed that the life of a slope rope depended upon factors that included its
frequency of use. T. 137. If the rope hoist is properly maintained, “it lasts
longer.” T. 137.

Snyder
was not present at Bailey Mine on August 13, 2018, when Vargo conducted the
inspection that resulted in the issuance of the August 15, 2018 safeguard. T.
138.

When
the hoist rope was reterminated, it was still in compliance but close to meeting
the retirement criteria. T. 139. Both old and new ropes can develop kinks,
especially when they are abused or mishandled. T. 139-140.

Snyder’s
degree was in mine engineering, and he testified that he was neither a
structural steel engineer nor a civil engineer. T. 141. Mine engineering did
not specifically teach students about wire rope. T. 141.

Visual
examination of a rope hoist can reveal clusters of broken wires, inadequate
lubrication, deformation to the rope. T. 142. Snyder noted no reported hazards
in the Respondent’s log book following the operator’s last 14-day examination
on March 29, 2018. T. 142-143.

Snyder
did not have the authority to issue citations. T. 143. The multiple areas of
concern regarding the hoist rope motivated Snyder to advise the operator to
remove a portion of the rope. T. 144.

In
reference to the safeguard at Exhibit P-2, Snyder observed some of the same
conditions on August 7, 2018. T. 144. Anything that adds friction to the
rope—as it is observed dragging through rock, gravel, slate, and coal—is going
to accelerate its wear. T. 145. Snyder did not believe that as the rope moves
down the slope, more tension would be created on the wear pads or rollers. T.

146. The tension would be constant. T. 146. To perform the electromagnetic
     test, the rope would need to be in motion. T. 146.

Prior
to his August 7, 2018 inspection Snyder clarified that the last 14-day test
would not have been conducted as early as March. T. 147.

Snyder
had visited Baily’s slope and other coal mine slopes in the past and had
observed coal and rock going down the slopes. T. 147. He also agreed that the
slope was exposed to outside elements, including rain and snow. T. 148.

Craig Elson

Craig
Elson worked for Consol Energy at the Crabapple Portal and had done so for
approximately 18 years. T. 152. At the time of hearing, he worked as assistant master
mechanic, overseeing underground and surface maintenance. T. 152. [5]

A
slope hoist is used to haul material in and out of a coal mine. T. 155. In case
of an elevator malfunction, a hoist can also be used to transport individuals.
T. 156. The slope hoist at the Crabapple Portal is operated by a hoistman. T.

156. Different types of cars are loaded with supplies. T. 156. They will then
     be hoisted through the track switch, taken off the hoist car and delivered to
     where needed throughout the coal mine. T. 156. The hoist rope is attached to a
     brakeman car; supply cars are coupled to the brakeman car. [6] T. 156.

The
total length of rope at the Crabapple Portal is 3,000 feet. T. 157. From the
pit mouth to slope bottom is approximately 1600 feet to 1800 feet. [7] T. 157. The
slope rope is attached to a drum; the drum winds or unwinds causing the
supplies to be dropped or raised. [8]
T. 157-158. All the cars, including brakeman car and supply car, are on a
track. T. 157.

When
Elson worked as a surface electrician, he would line up hoist rope tests,
including non-destructive tests, 30-day tests, 60-day tests conducted by
Frontier-Kemper. T. 158. He was also involved with any of the examinations
involving the rope and hoist. He would address any breakdowns with the rope or
car, drum room electrical issues, verbal frequency driver operation, and any
communication problems from the top to the bottom of the slope. T. 158.

Sensors
(called “tags”) are placed at the pit mouth and near the bottom of the slope
and on top of the brakeman car so that the exact location of the car based upon
a mathematical footage calculation can be determined. T. 158-159.

The
hoist operator has a computer in front of him containing the location
information. T. 159. There is another computer at the main hoist house
containing the same information. T. 159.

Elson
did not escort the inspector on the date the safeguard (P-2) was issued. T.

160. Kevin Wilson, now retired, had done so. T. 160. Elson was working on
     August 7, 2018, when the hoist rope was examined by MSHA tech support. T. 160.
     A caliper is used to determine whether there is diameter loss exceeding 6% of
     the baseline. T. 161. Not every rope is identical in diameter size, there being
     a few tenths of difference between various ropes. T. 162.

The
hoist rope, when examined on August 7, 2018, was not beyond the retirement
criteria. T. 163. MSHA did not issue any citations on August 7, 2018. T. 163.
After the August 7, 2018 inspection Consol took out 350-foot of the rope that
was approaching retirement criteria. [9]
T. 163. The rope was earlier changed on December 14, 2017, and March 29, 2018.
T. 163-165; see also R-1.

A
non-destructive test was also performed in April 2018 by a subcontractor,
Evergreen. T. 166; see also R-2. In conducting the NDTs, Evergreen
utilizes a two-piece machine placed around the hoist rope. T. 167. The hoist
car is run at a set speed; the rope is x-rayed twice, once down and once back.
T. 167.

A
review of Evergreen’s certificates of inspection from April 23, 2016, through
April 21, 2018, did not reveal that the Baily Crabapple slope rope had, at any
point, met the retirement criteria. T. 168; R-2. The rope, however, was
reterminated or changed between the non-destructive test dates. T. 168-169.
Rope changes would be required in order to maintain three wraps on the drum: a
3,000 foot rope can be reterminated only so many times to stay within those
specs to have the required number of wraps. T. 169. Some of the reasons for
retermination or changing the ropes would be kinks, deformation and broken strands. T. 169.

In
addition to the 6 month NTDs, Consol conducts a visual examination of the hoist
rope every 14 days during which the hoistman inspects the entire length of the
cable for any kind of deformation or broken strand. T. 169. The hoistman also
visually examines the hoist rope every 24 hours. T. 170-171; see also
R-3.

Additionally,
there is a weekly permissibility examination performed, during which mechanics
check all the safeties, connection points of the rope, anything electrical with
the brakeman car itself, including brakes, lights, and batteries. T. 171-172; see
also R-4.

During
the examination of the slope car, “all the safeties” are checked. T. 172. The
brakes are engaged to verify that they all set properly; batteries are checked
for voltage; all lights and communications are checked. T. 172. The operator
also checks for overspeed, mismatched speed, roll back. [10] T. 172; see
also R-4.

Once
a shift before the hoist is operated, a hoistman also conducts an examination.
T. 173-174; see also R-5. He checks the car brakes, the connection point
of the rope—“basically just making sure everything is in safe operating
condition.” T. 174.

If
during the daily slope car checklist a deficiency is found, the car would be
taken out of service and MSHA would be notified of such by the shift
supervisor. T. 175.

Referring
to Safeguard 9076448, wherein it was reported that the wear pad that the slope
rope hoist rides on top of was worn down approximately 1 ¾”, Elson noted that
the wear pads at Bailey Mine were sometimes 2” thick and sometimes 2 ½” thick.
T. 176. There are approximately 80 wear pads on the slope, which are designed
to protect the rope. T. 176. Due to undulations in the mine floor, pads do not
wear out at the same rate. T. 176-177. Rope tension also affected pad wear. T.

177. A fully loaded train with seven cars caused a higher tension on the rope
     than a brakeman car alone which could have sags in the rope. T. 177.

When
a wear pad became worn through at Bailey Mine, it was either changed out or
turned 90 degrees. T. 178. By turning the pads diagonally, double life could be
gotten out of one pad. T. 178. Elson estimated that during his approximate six
years as electrical supervisor on the surface, there were at least six
occasions when the pads were turned or changed out. T. 178.

Elson
discussed the two trough rollers, approximately 40 feet inby the slope track
opening, that were reported to not be turning. See also Safeguard No.
9076448. There were seven trough rollers at the pit mouth, a couple outside the
pit mouth and a few more inby the mouth. T. 178-179. The trough rollers were
used to keep the rope over the knuckle. T. 179. The slope track was
approximately 22 degrees. T. 179. The actual slope track on the surface before
getting to the pit mouth opening was less. T. 179. During the transition over
the crest, the trough rollers held the rope up off the surface, “concrete
material or whatever.” T. 179. Rollers are made of steel and are exposed to the
weather. T. 179. They are subject to “wash back”: water gets on the belt; coal
is loaded onto the water; as it starts up the slope, the water will wash the
coal backwards and make a “mess.” T. 179-180.

Elson
opined that the rollers at Crabapple Portal were not subject to the same wear
or tension. T. 180. The third trough roller would take the most pressure or
force. T. 181. On August 13, 2018, this roller was turning. T. 181. The two
inby rollers, which were reported in the safeguard not to be turning, were
numbers six and seven out of seven total rollers. T. 181.

The
slope hoist rope does sometimes come into contact with gravel, rock, slate,
mud, coal, and water—as reported in the safeguard. T. 181. While the operator
does its best to prevent such contact, there is approximately 300 feet of cable
exposed to the weather at all times. T. 181.

Elson
disagreed with the assertion in the safeguard that the hoist rope had been
removed from service “multiple times” for excessive wear. T. 181-182; see
also P-2. On two occasions a non-destructive test was conducted. T. 182.
Although the rope was below the retirement age, it was decided to change it
out. T. 182. This was not done because of excessive wear; the majority of time
it was “for kinks in the rope, distortion.” T. 182.

In
reference to Safeguard No. 9076449 noting various mine supplies on both sides
of the tracks (P-4), Elson did not know of any material contacting the slope
car as it dropped down. T. 182. Nobody normally walked the hoist slope. T.
182-183. If for whatever reason, one were to walk out of the mine, one would
use the slope belt rather than the slope track because of the high velocity of
air coming down the slope track—over 9,000 CFM. T. 183-184.

Elson
disagreed that having mine supplies in the slope entry constituted a hazard. T.
184.

In
reference to the wear pads depicted in the final photograph in P-5, Elson
agreed that these pads were rectangular in shape and would have to be changed
out—unlike the square wear pads on the slope. T. 185. Elson further agreed that
a second rectangular wear pad depicted in the P-5 final photograph would
require replacement. T. 186.

If
wear pads are covered with material and the rope is dragging through the
material the wear pad is not serving its purpose. T. 186; see also P-5.
The examination reports in R-1 disclosed the need to replace the hoist rope
before six months had elapsed. T. 188. A non-turning roller would add more
frictional wear than a turning roller. T. 188-189.

There
are three LED lights that face the track and route which, in combination with
cap lights, aid visibility at night. T. 192-193. However, Elson conceded that
the nighttime darkness on midnight shift would affect visibility. T. 190; see
also R-3. The escalation reports, where problems were noted, all came
during daylight hours rather than midnight hours. T. 191.

Elson
did not possess a hoistman card or a hoistman certification nor had he ever
physically worked on wire ropes. T. 189.

Usage
of the slope rope would affect its life. T. 192. The rope changes reported in
R-1 were between NDTs, establishing the operator was not only changing the rope
when a NDT was performed. T. 192.

Michael
Tennant

Michael
Tennant had worked for Respondent for approximately 20 years, being employed at
Baily Mine for 18 years. [11]
T. 194. Tennant had been working as a safety supervisor for Baily Mine in
August 2018. T. 195.

Exhibit
P-1 was a technical violation issued in response to a letter submitted to
District Manager Russell Riley in connection with the safeguard issued on
August 13, 2018. T. 196. Exhibit P-3 was a similar technical citation for a
different safeguard issued on August 13, 2018. T. 197.

Tennant
was aware that Inspector Vargo intended to inspect the Crabapple slope, hoist,
and rope on August 13, 2018. T. 197. He discussed Vargo’s issuance of the
safeguards and conveyed his disagreement with such. T. 198.

Exhibit
R-7 was a list of dates that Tennant reported to MSHA that Crabapple hoist had
been down in 2016, 2017, and 2018. T. 200. Tennant had created the document to
rebut the safeguard assertion that the Crabapple hoist had been taken down
multiple times for wear on the rope. [12]
T. 200. On none of the dates reported in 2016 had the hoist been taken out of
service for excessive wear. T. 201. On October 22, 2016, the operator did take
the hoist out of service because it was “close enough to the non-destruct.” T.
201.

In
reference to R-8 (Request for Health and Safety Conference), Tennant had
requested conferences on the safeguards issued. T. 203.

As
to Safeguard No. 9076448, Tennant disagreed that there was any specific hazard
presented. T. 206. The slope hoist rope was “in fine shape.” T. 2016. Nobody’s
life was in danger; no equipment was in danger. T. 207.

As
to Safeguard No. 9076449 (P-4) Tennant again did not believe any specific
hazard was presented by mine supplies on the side of the slope tracks. T. 207.
He was unaware of any car coming into contact with any of the cited material.
T. 207. There was already a safeguard at the mine that required 24 inches
clearance. T. 207-209; see also R-10 Re slip and fall hazard.

As
compared to track haulage, the slope car only went to the bottom area of the
mine. T. 210. The slope car was moved by the hoist rope; track cars were pulled
by a locomotive. T. 211; see also R-10, Safeguard No. 3670427.

Tennant
contended that if the hazard presented was a “slip and trip” hazard, Safeguard
No. 3670427 already addressed such. T. 212; R-10. If the hazard was derailment,
there had been nothing observed by Vargo of materials coming into contact with
the slope car. T. 212.

Supplies
in the slope entry or on the slope itself did not present a hazard unless they
came into contact with a car. T. 212-213.

CONTENTIONS
OF THE PARTIES

As
to Safeguard No. 9076448 (P-2), the Secretary contends that the Respondent
failed to address various unsafe conditions involving the slope hoist rope at
the Crabapple Portal of Bailey Mine. These hazardous conditions included:
multiple worn wear pads on the slope track; the hoist rope running into steel
grating for approximately six feet; two trough rollers that would not turn when
the hoist rope was in contact with them; the hoist rope being dragged through
gravel, rock, slate, mud, coal, and water; excessive wear and damage to the
hoist rope; the slope hoist rope’s removal from service multiple times for
excessive wear.

As
to Safeguard No. 9076449 (P-4), the Secretary contends that the Respondent
improperly allowed the accumulation of debris and supplies on both sides of the
slope track.

As
to Safeguard No. 9076448, Respondent contends that the alleged transportation
hazards associated with the Crabapple hoist rope were already covered by
mandatory safety standards at 30 C.F.R. § 75.1430 through § 75.1438. As such,
the safeguard was facially invalid because there was no actual mine specific
transportation hazard not (already) covered by a mandatory safety standard.
Respondent alternatively contends that, even if the safeguard was facially
valid, there were no actual transportation hazards existent at any of the
pertinent times within. The Respondent makes a similar argument with regards to
Safeguard No. 9076449, arguing that it is invalid because there was no actual
mine specific transportation hazard, and that the safeguard did not adequately
articulate the hazard or the conduct required of the operator to remedy such
hazard.

As
to Safeguard No. 9076449, at hearing the Respondent contended that any alleged
transportation hazard associated with the track was already covered by an
existing mandatory safety standard (Safeguard No. 3670427) and that, in the
alternative the Secretary failed to prove the existence of any actual
transportation hazard associated with the slope track.

ANALYSIS

Issue I:      Was
Safeguard No. 9076448 facially invalid in that the contemplated transportation
hazard—hoist slope rope failure due to excessive wear and tear—was already
covered by existing mandatory safety standards at 30 C.F.R. §§ 75.1430 through
75.1438?

Issue II:     Assuming
Safeguard No. 9076448 was not facially invalid, did the Secretary carry his
burden of proving the existence of an actual transportation hazard?

Issue III:    Assuming
the Secretary carried his burden of proof, did he properly articulate the
conduct required of the operator to remedy the hazard?

Issue IV:    Was
Safeguard No. 9076449 facially invalid in that the contemplated safety hazards
associated with the slope hoist track were already covered by prior Safeguard
No. 3670427?

Issue V:     Assuming
Safeguard No. 9076449 was not facially invalid, did the Secretary carry his
burden of proving the existence of any actual transportation hazard?

Issue VI:    Assuming
the Secretary carried his burden of proof, did he properly articulate the
conduct required of the operator to remedy the transportation hazard?

I.                 
Safeguard
No. 9076448 was facially invalid in that the contemplated transportation
hazard—hoist rope failure due to wear and tear—was already covered by mandatory
safety standards found at 30 C.F.R. §§ 75.1430 through 75.1438.

At hearing and
in his post hearing brief the Respondent contended that a safeguard may not be
issued if there are already existing mandatory standards addressing the
transportation hazard alleged. See also RB 7-11. Cyprus Cumberland
Resources Corp. , 19 FMSHRC 1781, 1784– 85 (Nov. 1997), citing Southern
Ohio Coal Co. , 14 FMSHRC 1, 8 (January 1992) (“ SOCCO II ”)) (“In
order to issue such a safeguard, an inspector must determine that there exists
an actual transportation hazard not covered by a mandatory standard and that a
safeguard is necessary to correct the hazardous condition.”).

The Secretary
did not dispute this proposition at hearing. Inspector Vargo responded
affirmatively when asked at hearing, “would you also agree with me that to
issue a safeguard, the actual hazard with respect to the transportation of men
and materials you determined to have existed must also not be covered by a
mandatory standard?” T. 48. Rather, the Secretary cited to the
applicable sections of the Act and regulations establishing MSHA’s authority to
issue mine-specific safeguards to minimize hazards with respect to the
transportation of men and materials and Commission case law in support of such.
See, inter alia , SB 4-5, citing § 314 (b) of the Act, 30 C.F.R. §
75.1403 of the regulations, and the Commission holding at Pocahontas Coal
Co. LLC , 38 FMSHRC 157, at 157 (Feb. 2016).

However,
the general authority of MSHA inspectors to issue transportation safeguards on
a mine-to-mine basis is not at issue. [13]
Rather, Respondent has challenged Coal Mine Inspector Vargo’s issuance of this
particular safeguard on the basis that mandatory safety standards in Part 75 of
30 C.F.R. already address the alleged transportation hazard posed at Baily
Mine.

As
to this threshold question, this Court finds that the existent safety standards
in Part 75 of 30 C.F.R. §§ 75.1430 through 75.1438 do address the
transportation hazard alleged to have existed at the operator’s Crabapple
Portal.

This
Court begins its analysis by considering what was the specific transportation
hazard alleged.

The
hazard as described in Safeguard No. 9076448 was “wear and damage (to) the
hoist rope.” P-2, Section 8, Condition or Practice. At hearing, CLR Polka
stated that the safeguard had been issued to protect miners from being exposed
to the hazards of “the rope wearing out before it is expected and increasing
the likelihood of an accident related to (the) rope failure.” T.8. Similarly,
Inspector Vargo testified that his “main concern” in issuing the safeguard was
damage and wear to the slope rope. T. 48.

At
hearing there was much testimony directed toward various hoist slope
conditions, including worn or missing wear pads, static trough rollers; the
hoist rope’s exposure to the elements; the hoist rope’s contact with steel
grating or concrete; and the hoist rope dragging through gravel, rock, slate,
mud, coal, and water. See P-2, see also T. 17, 18, 20, 28, 33,
41, 70, 73, 74. Such conditions may or may not constitute hazards in and of
themselves. However, clearly the ultimate transportation hazard contemplated in
Safeguard No. 9076448 was hoist rope failure due to excessive wear and tear .
Such hazard is already covered in the cited regulations under Wire Ropes
in Title 30 of the regulations, §§ 75.1430 through 75.1438. Said sections
address in detail when damaged or deteriorated wire hoist ropes should be
repaired or replaced in order to avoid rope failure.

Inter
alia , these sections specifically provide that “wire ropes…used to hoist”
(§ 75.1430) shall be subject to “minimum rope strength” values (§ 75.1431),
“initial measurement” (§ 75.1432), “examinations,” including biweekly visual
examination and 6 month non-destructive testing (§ 75.1433), “retirement
criteria,” including rope diameter reduction and rope strength loss percentages
(§ 75.1434), “end attachment retermination,” (§ 75.1437) and “end attachment
replacement” (§ 75.1438). These regulatory standards go to the heart of what
constitutes excessive hoist rope wear and tear and render the within safeguard
as duplicative and preemptive.

Considering,
therefore, the record in toto and Respondent’s persuasive arguments on
point, this Court finds Safeguard No. 9076448 to be facially invalid. The ALJ,
however, recognizes that this a close question. [14]
Accordingly this Court will further consider whether the Secretary carried his
burden of proving that an actual transportation hazard existed when CMI Vargo
issued the safeguard and whether MSHA had properly articulated the conduct
required of the operator to remedy such hazard with specificity.

II.               
The
Secretary failed to carry his burden of showing that an actual transportation
hazard existed at the time in question.

As
discussed intra , neither of Secretary’s witnesses had testified that any
of the retirement criteria were met under § 75.1434 on the dates Snyder
performed his non-destructive test nor the dates Vargo conducted his
inspections or issued the safeguard. T. 51, T. 55, T. 85.

Vargo
opined that an actual transportation hazard existed because the hoist rope was
“right at the borderline.” T. 56. Similarly, Snyder testified the rope was
“right at the limit.” T. 122. There is a speculative quality to these opinions
which renders them problematic. According to Vargo’s and Snyder’s rationales,
although the hoist rope was still compliant with all applicable wire rope
regulations, a transportation hazard nonetheless presently existed because at
some looming time the rope would become non-compliant and fail. Such reasoning
implicates fundamental norms of due process. The reasoning also improperly
imports the Commission’s assumption of continued mining operations in
determining reasonable likelihood, to the analysis of whether a violation
existed. See Black Beauty Coal Co. , 34 FMSHRC 1733, 1740 (Aug.
2012),  aff'd sub nom. Peabody Midwest Mining, LLC v. FMSHRC ,
762 F.3d 611 (7th Cir. 2014). [15]

In
considering whether the Secretary carried its burden of proving an actual hoist
rope transportation hazard existed, this Court has considered the weight to be
accorded Vargo and Snyder’s testimony. The Secretary cites Vargo’s 30 years of
mining experience and urges that “great weight’ be given their testimony “due
to their specific experience and training regarding the issues in this case…”
SB 4.

This
Court notes, however, that while Inspector Vargo had decades of experience in
mining, he had little direct experience working on hoist slopes. On
cross-examination, Vargo conceded he had never worked on slope hoists or with
hoist ropes prior to joining MSHA in 2007. T. 45. He had no hoist-related
certifications. T. 45-46. He had not performed actual work on slopes while at
MSHA. T. 45. He had received “probably half a day” training on slopes at the
Mine Academy. T. 46. He had never issued a safeguard prior to the issuance of
the within safeguards. T. 47.

Vargo
was unable to corroborate some of his testimony with his contemporaneous notes.
T. 58-61; see also P-2. He had failed to take photographs on the date(s)
of his observations, documenting such. T. 61. He also had failed to take actual
measurements as to the depth of the grooves on the wear pads. T. 61. He was
uncertain as to actual number of trough rollers that were located on the hoist.
T. 72. Although he believed that the two inby rollers cited in the safeguard
bore the most pressure, he had not inquired to confirm such. T. 72.

Inspector
Vargo was also unable to determine how much—if any—contributory effect
non-turning trough rollers would have on overall hoist rope erosion. [16] T. 72;
P-2. He was unaware that Respondent had contracted wire rope specialists to
perform work on the hoist rope days before he had issued the safeguard.

Inspector
Snyder’s mining engineering discipline did not involve any education in wire
ropes. T. 141. Like Mr. Vargo, Michael Snyder had found no violations of
the hoist rope on August 7, 2018. T. 51, 55, 110-120. He found the rope to be
“right at the limit” but compliant. T. 122. He conceded that rope strength loss
of 10% could be remedied by reterminating the affected section rather than
changing out the entire rope. T. 125-126. He was unaware that the operator was
also conducting daily examinations of the hoist rope. T. 127. He further agreed
that, prior to the issuance of the safeguard, 350 feet of the hoist rope had
been reterminated on August 7, 2018. T. 129-130. Snyder had not considered at
the time the rope had been reterminated, whether it was safe to operate despite
the worn wear pads. [17]
T. 132.

On
the other hand, Craig Elson, the operator’s assistant master mechanic, had job
experience with hoist operations. T. 157-158. He testified that the hoist rope
had been reterminated on August 7, 2018, days prior to the August 15, 2018
issuance of the within safeguard. T. 163, 165. Elson further gave unrebutted
testimony that, as long as there were three remaining wraps on a drum [see also
§ 75.1436 (b)], portions of the rope could be cut out, still allowing it to
remain compliant and not thereby requiring the entire hoist rope to be
replaced. T. 125-126. He also noted that there were daily visual examinations
of the hoist, as well as the 14-day examinations. T. 170; see also R-3.
Elson noted that wear pads wore out at different rates due to undulations in
the floor. T. 177. He further testified that the third trough roller (which was
turning during Vargo’s inspections) would be sustaining the most pressure or
force—not the two inby static trough rollers described by Mr. Vargo in the
safeguard. T. 180-181. Unlike Vargo, Elson knew the exact number of trough
rollers located on the slope hoist. T. 181.

As
to Vargo’s assertion in Safeguard No. 9076448 that the slope rope had been
removed from service multiple times for excessive wear, Mr. Elson testified
that this was inaccurate. T. 182. The majority of times that the rope was
removed was for kinks or distortions—not wear or tear. [18] See R-7.

The
Operator’s safety supervisor, Michael Tennant, also disagreed with Vargo’s
characterization, submitting a written summary detailing the dates that the
Crabapple hoist was reported “down” to MSHA. T. 199-201; R-7. The hoist had
been reported down only two times in 2018, prior
to Vargo’s August 7, 2018 inspection, one of which was for car brake issues and
one for kinks, neither time for wire rope wear and tear. R-7.

Neither
of the Secretary’s witnesses gave persuasive testimony as to the nature or rate
of wear/tear to the hoist rope caused by the various alleged hazardous
conditions that they described.

This
Court concludes that the Respondent’s witnesses knew as much as or more than
Secretary’s witnesses regarding the actual operation of the slope hoist and was
ultimately left uncertain as to the accuracy of the Secretary’s contentions
that actual transportation hazards existed.

As
trier-of-fact and trier-of-law, this Court was unable to find that the Secretary
proved his case by the preponderance of the evidence.

III.             
The
Secretary failed to articulate the hazard and conduct required of the operator
to remedy the contemplated hoist rope hazard with specificity.

Even
if the Secretary had carried his burden of establishing the existence of an
actual transportation hazard, this Court is also persuaded by Respondent’s
argument that the Secretary failed to articulate the hazard and conduct
required of the operator with specificity. See RB, pp. 14-16.

At hearing, the Secretary’s witnesses
acknowledged that many of the conditions cited at the slope hoist—exposure to
the elements, the presence of gravel, rock, slate, mud and water—were commonly
found at mines throughout the country. T. 86.

This Court was not enlightened by
Secretary’s hearing presentation as to how such conditions could be
specifically remedied. [19]

At hearing legitimate questions were
also raised as to the effect of tension on the rope when the hoist was in
operation and whether during operation the rope actually came into contact with
debris. See, inter alia , T. 132-135.

CMI Vargo noted in his safeguard that
“all wear pads that the hoist rope travels over be properly maintained.” P-2.
However, Vargo gave vague and inconsistent testimony as to what constituted "proper
maintenance” T. 62-64, T. 91. [20]
MSHA has not published any specific guidelines as to wear pad maintenance or
replacement.  T. 64, T. 132-133.

At hearing and in the safeguard, Vargo
had noted that a wear pad had been worn down approximately 1 ¾ inches. P-2.
This was an estimate as Vargo had failed to take actual measurements of the
groove or, indeed, the actual thickness of the wear pad in question. At hearing
it was indicated that wear pads wore out at different rates, that wear pads
were of different shapes, including square and rectangular shapes, and that
they were of varying thickness. See, inter alia , T. 176-178. Given all
these variables this Court concludes that the operator was given insufficient
notice as to when a particular pad or group of pads actually needed to be
replaced.

This Court does not have the authority or
inclination to dictate what specific guidelines should have been placed in
MSHA’s safeguard regulating hoist ropes at Baily Mine. However this Court
suggests that the remedies for repair or replacement of such items as wear pads
or trough rollers should have some specificity. For example, a wear pad
measuring 2 ½ inches in thickness should be replaced or rearranged when it is
worn down to ¼ inch thickness. [21]
Similarly, notice of specific criteria as to when the number and position of
static rollers pose a transportation hazard should be afforded to the mine
operator. [22]
As to the condition of hoist rope removal from service “multiple times,” the
ALJ suggests that a specific number of times within a specific time period for
a specific cause be clearly set forth in the safeguard.

In summary this Court further finds that
the safeguard was fatally deficient in articulating the hazard and conduct of
the operator to remedy such hazard with specificity. For the foregoing reasons,
Safeguard No. 9076448 violation should be vacated.

IV.            
Safeguard
No. 9076449 does not address transportation hazards covered by a previous
safeguard issued at Baily Mine.

Unlike Safeguard No. 9076448, this Court
concludes that Safeguard No. 9076449 is facially valid in that the specific
transportation hazards which Inspector Vargo sought to prevent were not already
covered by an existing mandatory safety standard.

In reaching the within conclusion, this
Court was persuaded by the arguments raised in Secretary’s brief as to the
differing hazards contemplated in Safeguard Nos. 3070427 and 9076449. See
also SB, 8-10.

Respondent has contended that Safeguard
No. 3670427, issued at Baily Mine in March 2001, already addressed the safety hazards
contemplated in the MSHA inspector Safeguard No. 9076449, issued in August
2018. T. 210-211.

This Court does not agree. The
Secretary’s arguments against such preemption are persuasive. See also
SB, 8-10.

At hearing Baily Mine’s safety
supervisor, Michael Tennant, agreed that Safeguard No. 3670427 dealt
specifically with track haulage. T. 210. On cross-examination, he conceded that
the safeguard did not address such hazards as hoist car derailment.

Considering also that Safeguard No.
9076449 dealt with a different area of the mine, the slope hoist area, as
opposed to track haulage areas, that track cars are moved by locomotives and
slope cars by a hoist rope, and given the different transportation described infra ,
this Court finds Safeguard No. 9076449 to be facially valid.

V.              
The
Secretary failed to carry its burden of proving that an actual transportation
hazard contemplated in Safeguard No. 9076449 existed at the time of MSHA’s
inspection(s).

Safeguard No. 9076449 indicated that
various mining supplies and discarded items were seen on both sides of the
slope tracks. P-4, Section 8. The Secretary contends that these conditions
created various hazards. See also SB, 9-10. There would be a slip and
trip hazard presented to miners traveling on foot such as examiners, track
cleaners, and miners using the track slope as an emergency route. T. 38-39, 44,

183. Debris could fall into the hoist car’s brake clamps and track, preventing
     the cars from stopping, creating a struck-by hazard for miners in the hoist
     cars, including examiners and miners working in the slope track or working at
     the bottom of the slope track. T. 40-41. There being no seat belts, miners
     might be thrown out of the hoist cars. T. 39. Debris could come into contact
     with the rail and the hoist car wheels and could cause a derailment. T. 39-43.
     The hoist rope could abrade against debris in the slope track and create
     additional excessive wear. T. 39-41. A struck-by hazard would be created for
     miners working in or at the base of the slope track or for miners riding in
     hoist cars. T. 30-41.

At hearing, however, Mr. Vargo offered
little evidence that the supplies and debris described in the safeguard were
actually in contact with the slope track, brakes or slope cars, or slope hoist. [23] On
cross-examination, Vargo admitted that he did not know whether any material was
actually contacting the slope car. T. 87.

As to many of the alleged hazards, Vargo
offered little in the way of corroborative support. He had failed to take
measurements to determine how close material was to the track. T. 87. While
testifying that there was material in some areas contacting the slope rope, no
such observations were recorded in the safeguard or his contemporaneous notes. T.
87; see also P-4.

Similarly, as to whether material
presented a slip and trip hazard, Vargo again failed to note such in the
safeguard or his notes. [24]
 T. 88. This led to Vargo having to split hairs in his testimony. His
explanation that he hadn’t said “slipped” or “tripped”, but only that he
slipped was somewhat confusing. T. 89. This Court found it an open question as
to whether Vargo and his escort had slipped because of the steepness of grade
or because of material in the space between the track and supplies. Given that
it is Secretary’s burden to establish each operative fact, this Court
specifically finds that the Secretary failed to carry such burden as to the
existence of an actual slip and trip or slip and fall hazard.

This Court finds the Respondent’s
arguments as to the absence of actual transportation hazards to be persuasive
and holds that it is correct. See also SB at 17-18.

VI.            
Assuming
the Secretary did carry his burden of proof, the Secretary failed to properly
articulate the conduct required of the operator to remedy the contemplated
transportation hazards.

This Court agrees with Respondent’s
argument that Safeguard No. 9076449 is invalid because it contains vague and
non-specific remedies that do not adequately address or provide adequate notice
of the conditions and how the operator is to remedy the contemplated
transportation hazard. See RB, p. 18.

The safeguard directs that the slope
track be “kept free of these mine supplies and other supplies that are hoisted
in and out of the mine.” T. 93; P-4. Given that supplies are hoisted in and out
of the mine, the safeguard provides insufficient direction as to how the slope
track should be kept free of such. Considering Vargo’s testimony that supplies
or materials located in the slope which do not contact the slope car are not
hazardous, the safeguard provides insufficient notice as to what remedies
should be undertaken to avoid the contemplated transportation hazards. [25]

For the foregoing reasons, Safeguard No.
9076449 violation should be vacated.

ORDER

It
is the ORDER of this Court that Safeguard Nos. 9076448 and 9076449 are
hereby VACATED and DISMISSED .

/s/
John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

John
Strawn, Esq., Office of the Solicitor, U.S. Dep. of Labor, The Curtis Center,
170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306 [email protected]  

Kenneth
J. Polka, CLR, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666 [email protected]

Patrick
W. Dennison, Esq., Fisher & Phillips, LLP, 6 PPG Place, Suite 830,
Pittsburgh, PA 15222, [email protected]

/mzm

[1] “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.

[2] See
T. 13-15 for detailed description of Vargo’s mining experience and specialized
certifications.

[3] The
Transcript erroneously states the diameter reduction as 1.71 in one instance,
where it should read 1.571. T. 110

[4] A
retermination was described as when one takes a portion of the rope and installs
a new portion to the existing rope with zinc oxide. T. 125.

[5] See
TT 152-155 for other mining positions held and certifications received.

[6] A brakeman
car is used to hoist individuals. T. 156.

[7] Pit mouth
“is the opening in the earth where you go from surface to underground in the
beginning of the tunnel on your 22 degree decline into the coal mine.” T. 157.

[8]
The drum is also called a “drum room.” Tr. 157-158.

[9] Ketchum
Construction, a subcontractor, actually performed the work. T. 163.

[10] For
example, if the hoist rope would break, the car would go into overspeed. The
brakes would be locked to the rail, avoiding a runaway car. T. 172-173.

[11] See
TT 194-195 for full resume.

[12] The full
title of the document, which was partially obscured, read “reportable Crabapple
Hoist Car.” T. 200. “Reportable” meant anytime the elevator was inoperable for
more than 30 minutes in which case MSHA had to be notified. T. 200.

[13] Likewise,
the question is not, as Secretary seems to imply, whether a safeguard is invalid
because it addresses hazards that exist at other mines. See SB 5, Citing
Oak Groves Res., LLC , 35 FMSHRC at 2013.

[14] Arguably,
the MSHA inspector may have been properly exercising his statutory and
regulatory authority under Section 314 (b) of the Act and Section 75.1403 of
the regulations notwithstanding the Part 75 Wire Ropes standards
discussed within. This is not an instance where the overreach of authority is
manifested with refulgent clarity such as, for example, Martin Luther’s
accusation of Pope Leo X’s usurpation of jurisdiction over Purgatory. 

[15] The following
analogy may not be on all fours. However, this Court wonders if the Secretary’s
witnesses would accept—with equal equanimity—the finding of a Highway Patrol
Officer that they were guilty of speeding because they were traveling at 64
miles per hour in a 65 MPH zone and would be presumably going over the speed
limit shortly.

[16] As noted infra
Elson maintained that the two non-turning trough rollers would not be bearing
the most pressure exerted by the hoist rope—rather the third roller, which was
turning, would. 

[17] Though
finding Snyder to be an honest individual, this Court also found Snyder to be
purposely unresponsive to some of Respondent’s counsel’s questions.

[18] Kinks may
be found in even new wire ropes. T. 80, 139.

[19] See
also Respondent’s arguments on point at RB, pp. 15-16.

[20] In its
brief the Respondent persuasively reviewed Vargo’s contradictory testimony. RB,
at pp. 15-17.

[21] At hearing
Secretary’s witness, Mr. Snyder, implied that a wear pad could serve its
function until it was actually cut in half. T. 132-133.

[22] In his
brief Respondent persuasively argues that neither the safeguard nor Mr. Vargo
detailed what it meant for rollers to be “properly maintained” or to “turn
freely” or how operator was to achieve the mandate. RB, p. 16.

[23] The issue
of slope rope damage has already been discussed above.

[24] This Court
also notes there may be an issue as to whether a slip and fall hazard
constitutes a hazard with respect to transportation under § 75.1403.

[25]
For example should there be a certain clearance distance maintained between the
haulage track and any supplies, materials, debris along the track?