Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

CONSOL Pennsylvania Coal Company operates the Enlow Fork underground coal mine in Pennsylvania. MSHA cited the mine because two adjacent high-voltage circuit breakers carried the same equipment label, creating a risk that a miner could deenergize the wrong continuous miner before working on equipment. Judge Michael G. Young affirmed that citation as significant and substantial with moderate negligence and assessed $700. He also affirmed an S&S citation for deep, murky standing water that hid tripping hazards and made the bleeder travelway unsafe. Because CONSOL had continuously pumped the water, added equipment, built sumps, and dealt with repeated pump and pipe failures, he reduced negligence for the water citation from moderate to none and assessed $150. The total penalty was $850.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 75.370(a)(1), 75.904, and 100.3(e); 30 U.S.C. §§ 815(d) and 820(i)
• Outcome: Both S&S citations were affirmed, negligence for the flooded-bleeder citation was reduced to none, and $850 was assessed.
• Key point: Extensive and continuous abatement efforts can eliminate negligence even when strict liability and S&S findings remain.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987
/ FAX: 202-434-9949

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL

COMPANY,
LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2021-0074

A.C.
No. 36-07416-532307

Mine:
Enlow Fork Mine

DECISION AND ORDER

Appearances:              Ryan
Kooi, Esq., Office of the Solicitor, U.S. Department of Labor,

Philadelphia,
Pennsylvania, for the Petitioner

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

Pennsylvania,
for the Respondent

Before:  Judge
Young

SUMMARY

Citation No. 9203910, 30 C.F.R. §
75.904: Failure to properly identify a high-voltage (995-volt) circuit breaker. Two continuous miner machines were
plugged into adjacent circuit breakers, each marked with the same number.

Facts                                                                                        p.
4 (Slip Op.)

Fact of violation         Affirmed                                             p.
5

S&S                             Affirmed                                             p.
6

Negligence                  Moderate                                             p.
10

Penalty                                    $700                                                    p.
10

Citation No. 9204098, 30 C.F.R. §
75.370(a)(1): Failure to maintain bleeders safe for travel due to standing
water, violating the approved Ventilation Plan. Deep water was allowed to
accumulate in travelway used to examine the bleeders.

Facts                                                                                        p.
11

Fact of violation         Affirmed                                             p.
13

S&S                             Affirmed                                             p.
14

Negligence                  None                                                   p.
16

Penalty                                    $150                                                    p.
17

I.       INTRODUCTION

This
case is before me upon petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of

1977, as
amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are two citations
under section 104(a), issued to Respondent, Consol Pennsylvania Coal Company,
LLC (“Consol” or “Respondent”). [1] The parties
presented testimony and documentary evidence at a video conference hearing on
September 28–29, 2021, and filed post-hearing briefs.

Consol
owns and operates the Enlow Fork Mine, located in Greene and Washington
counties, Pennsylvania. Jt. Stips. 1, 2, 5; S. Post-Hearing Br. at 3 (Jan. 7,
2022) (“S. Br.”). The mine is an underground coal mine and is subject to the
jurisdiction of the Mine Act and the Commission. Jt. Stips. 3, 4; S. Br. at 3. Citation
No. 9203910 alleged that Respondent failed to properly identify a 995-volt
circuit breaker, posing a risk of miners inadvertently removing power from the
wrong equipment. Citation No. 9204098 alleged that Respondent failed to comply
with its approved Ventilation Plan (“Plan”) by permitting the accumulation of
standing water that prevented safe travel. For reasons set forth below, I AFFIRM
both citations with their assessed gravity, but I MODIFY the degree of
negligence for Citation No. 9204098 from “moderate” to “none.”

II.        STANDARDS

A.        Violation

The
Secretary must prove the elements of an alleged violation by a preponderance of
the evidence. See Jim Walter Res. , 28 FMSHRC 983, 992 (Dec. 2006); RAG
Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000).

The
requirements of a MSHA-approved ventilation plan are enforceable in the same
manner as mandatory safety standards. See Prairie State Generating Co. v.
Sec’y of Lab. , 792 F.3d 82, 93 (D.C. Cir. 2015) (citing Zeigler Coal Co.
v. Kleppe , 536 F.2d 398, 406 (D.C. Cir. 1976)) (“ Zeigler recognizes,
as do we, both the regulatory character of mine-specific plans, and the
Secretary’s paramount control over the responsibility for mine-specific plans,
which ‘must also be approved by the Secretary.’”). Mine operators are generally
strictly liable for mandatory safety standard violations. See Freeman United
Coal Mining Co. v. FMSHRC , 108 F.3d 358, 361 (D.C. Cir. 1997); Nally
& Hamilton Enters., Inc. , 33 FMSHRC 1759, 1764 (Aug. 2011).

B.        Gravity

The
“likelihood” contemplated within the assessment of gravity is that of the
resulting injury. A severity assessment of “lost workdays or restricted duty”
is defined as “[a]ny injury or illness which would cause the injured or ill
person to lose one full day of work or more after the day of the injury or
illness, or which would cause one full day or more of restricted duty.” 30
C.F.R. § 100.3(e) (2022).

Specifically,
a gravity evaluation is different from S&S analysis because it assumes the
occurrence of the hazard. See Consolidation Coal Co. , 18 FMSHRC 1541,
1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable
likelihood of serious injury,” with gravity inquiry, which focuses on “the
effect of the hazard if it occurs”) (emphasis added).

C.        Significant
and Substantial (“S&S”)

A
violation is properly designated as S&S if, “based upon the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Mathies Coal Co. , 6 FMSHRC 1, 3–4 (Jan. 1984) (citing Cement
Div., Nat’l Gypsum Co. , 3 FMSHRC 822, 825 (Apr. 1981)). The four
elements required for an S&S finding are expressed as follows:

(1) [T]he underlying violation of a
mandatory safety standard; (2) the violation was reasonably likely to cause the
occurrence of the discrete safety hazard against which the standard is
directed; (3) the occurrence of the hazard would be reasonably likely to cause
an injury; and (4) there would be a reasonable likelihood that the injury in
question would be of a reasonably serious nature.

Peabody
Midwest Mining, LLC ,
42 FMSHRC 379, 383 (June 2020) (integrating the refinement of the second Mathies
step in Newtown Energy, Inc. , 38 FMSHRC 2033, 2037 (Aug. 2016)).

An
S&S determination must be based on the assumed continuation of normal
mining operations. See Consol Pa. Coal Co. , 43 FMSHRC 145, 148 (Apr.
2021) (citing U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574 (Jan. 1984))
(“A determination of ‘significant and substantial’ must be based on the facts
existing at the time of issuance and assuming continued normal mining
operations, absent any assumption of abatement or inference that the violative
condition will cease.”).

D.        Negligence

Judges
may use a traditional negligence analysis, rather than relying upon Part 100
definitions. Brody Mining, LLC , 37 FMSHRC 1687, 1701–02 (Aug. 2015)
(citing Jim Walter Res., Inc. , 36 FMSHRC 1972, 1975 n.4 (Aug. 2014) (“ JWR ”);
Sellersburg Stone Co. v. FMSHRC , 736 F.2d 1147, 1151–52 (7th Cir. 1984))
(Part 100 regulations apply only to the proposal of penalties by MSHA and the
Secretary of Labor; under both Commission and court precedent, the regulations
do not extend to the independent Commission, and thus the MSHA regulations are
not binding in any way on Commission proceedings.”). The reasonable prudent
person standard should be that of one “familiar with the mining industry, the
relevant facts, and the protective purposes of the regulation.” Id. at
1702.

E.        Penalty

The
Commission considers the following factors, from Section 110(i) of the Act, in assessing
penalties under the Act:

[T]he 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) (2006).

III.       CITATION NO. 9203910

A.        Factual
Findings

This
citation was issued by Inspector Robert Hutchison on February 17, 2021. Ex.
P-1. He assessed the gravity as “reasonably likely,” “lost workdays or restricted
duty,” “S&S,” and one person affected. Id. He assessed negligence as
“moderate.” Id. The inspector stated:

The 995 volt circuit breaker
servicing the Co. # 25 continuous miner is improperly identified as the Co. #
43 continuous miner. This condition could cause a miner to inadvertently remove
power from the wrong machine which would cause lost work day injuries including
electrical shock or burns. Both cables are plugged into the power center
between the #4 and #3 entries at 36 crosscut of 2 South Left section
(MMU#050-0).

Id. Two of the circuit breakers were
marked as the #43 continuous miner—one was #43, and the other was actually #25.
See Tr. Volume I at 59, 131 (Sept. 28, 2021) (“Tr. I”). Mr.
Heffelfinger, Consol’s safety inspector, acknowledged that the #25 continuous
miner was not identified properly at the top of the breaker. Id. at 146.
He did state, however, that there was a brass tag affixed to the cable, where
it was plugged into the breaker, that properly identified the cable as that of
the #25. Id.

In
his testimony, the inspector acknowledged this tag, but he also stated that it
was difficult to find or read because it was a “half-inch thick diameter brass
tag that did have mud and debris on it” and was located under the plug instead
of on top. Id. at 62, 131, 142. Mr. Heffelfinger acknowledged that the
breaker marking and cable tag should match. Id. at 148.

The

25 had been brought into the mine between three and four days prior to the

inspection. Id. at 86, 132. The #25 was not in operation, and there was
no testimony as to whether it was fully assembled or whether the cable was
plugged into the continuous miner itself. Id. at 99–100, 133. The #25
breaker was not switched on at the time of inspection. Id. at 71. The

43 was in operation. Id. at 77. The breakers were located next to one

another. Id. at 87. Neither machine was within sight of the load center.
Id. at 65.

The
inspector did not observe damage to cables. Id. at 90. However, he
described the likely need to fix cables damaged in the course of continued
normal mining operations by making a splice or reentering the cable—both of
which require handling exposed conductors. Id. at 65–68. He stated that
cables often get damaged by mobile equipment, shuttle cars, or scoops, when
they are over roadways, and that he generally finds damaged cables about once
per month. Id. at 65, 104. These cables carry 995 volts. Id. at

69. While the inspector acknowledged that people have been killed by such
    voltage, id. , he believed the most likely injury would be severe burns
    or shock. Id. at 75.

Mr.
Heffelfinger testified that he brought the #25 into the mine a few days prior. Id.
at 132. He stated that it had not yet been examined. Id. at 135, 138. He
noted, and the inspector acknowledged, the existence of “lockout, tagout,
tryout” procedures, that the cable would be “blocked” before maintenance, and
that an exam would be conducted before using the #25. Id. at 93–94, 138,

139. Further, he stated that permissibility exams are done in the normal course
     of mining. Id. at 149. Section foremen inspect the load center twice per
     day. Id. at 76, 96.

B.        Disposition

1.         Violation

The
cited standard states, “Circuit breakers shall be marked for identification.” 30
C.F.R. § 75.904 (2022). The Secretary argues that the standard requires proper
labeling. S. Br. at 12. I find that this is a reasonable interpretation of the
regulation.

The
Secretary’s interpretation is reasonable where it is “logically consistent with
the language of the regulation[s] and . . . serves a permissible regulatory
function.” Gen. Elec. Co v. U.S. Env’t Protection Agency , 53 F.3d 1324,
1327 (D.C. Cir. 1995). Here, the Secretary has interpreted this regulation
“without the aid or constraint” of rulemaking procedures, so he is entitled to
deference to the extent that it has the “power to persuade.” See Knox Creek
Coal Corp. v. Sec’y of Lab. , 811 F.3d 148, 160 (4th Cir. 2016) (quoting Skidmore
v. Swift & Co. , 323 U.S. 134, 140 (1944)). I therefore weigh its
thoroughness, validity, and consistency. See id.

The
Secretary provided credible testimony that a miner intending to deenergize one
piece of equipment might deenergize another because another circuit breaker was
marked with the correct equipment’s identification. See Tr. I at 72. First,
this interpretation is consistent with the language because the regulation
requires the breakers to be marked for identification . Plain meaning
dictates that breakers should be identified. The only logical reason for such a
requirement is to enable the control of power to the specific equipment that a
miner intends to operate or maintain.

Second,
this interpretation serves a permissible regulatory function. The Secretary’s
reasoning is valid because the regulation is intended to protect miners—in this
case, from the danger of electrocution or serious injury.

I
find that the Secretary proved the violation by a preponderance of the
evidence. There were two breakers marked as #43. One connected to the #43, but
the other was for the #25. Therefore, the breaker for the #25 was improperly
identified. This is sufficient to establish a violation under the strict
liability applied to mandatory safety standards.

2.         Gravity

a.         Likelihood

The
Secretary asserts that the injury is reasonably likely. If the hazard—attempting
to repair a cable that had not been properly deenergized—occurred, it is
reasonably likely to result in electrocution or serious injury if a miner
contacts bare conductors. I have found that a miner may contact bare conductors
while repairing cables. I therefore affirm the assessed likelihood.

b.         Severity

The
Secretary provided credible testimony that contact with uninsulated conductors
while repairing an energized cable could result in severe burns or shock, or
even death. I find that electric shock or burns could reasonably result in a
miner missing at least a full day of work. I affirm the assessed severity.

c.         Number
of Persons Affected

The
inspector assessed that only one miner would be affected by the hazard. I agree
that, logically, one miner would be repairing the cable to contact exposed
conductors. Further, I find it reasonable that another miner would not contact
the cable after finding that the other miner was injured during that activity. I
affirm the assessed number of persons affected.

3.         S&S

I
affirm the S&S designation for the following reasons.

a.         Step 1: The Violation
has Been Established.

An
improperly marked circuit breaker is sufficient to constitute an underlying
violation of a mandatory safety standard for the purposes of Mathies
Step 1. See supra Section III.B.1.

b.         Step 2: The violation
was reasonably likely to result in the discrete safety hazard against which the
regulation is directed—a miner deenergizing the wrong equipment.

Mathies Step 2 is a two-step process: (1)
determine the specific hazard the standard is aimed at preventing; and (2)
determine whether a reasonable likelihood exists that the hazard against which
the mandatory standard is directed will occur. Newtown Energy, Inc. , 38
FMSHRC at 1868. This finding must be based on “the particular facts surrounding
the violation.” Northshore Mining Co. , 38 FMSHRC 753, 757 (2016).

Here,
the standard requires proper identification of circuit breakers to inform miners
which equipment they are powering or deenergizing. Thus, the hazard is the
deenergizing of the wrong equipment prior to conducting maintenance on the
equipment or cable.

The
Secretary provided testimony that two breakers at the power station were
labeled as continuous miner #43 (though one was in fact the #25), that cables
are often damaged during normal mining operations, and that repair requires
handling bare conductors. The Secretary argues that the Commission acknowledges
danger even when there are no exposed copper conductors. S. Br. at 14–15; see
Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1284–86 (Dec. 1998); U.S.
Steel Mining Co. , 6 FMSHRC 1573, 1575 (July 1984).

The
Secretary’s reliance on these decisions is misplaced because both cases
involved exposure to damaged cables and different regulatory standards. [2]

Nonetheless,
I find that the violation was reasonably likely to result in a miner
deenergizing the wrong equipment, risking electric shock. The inspector
described the methods of cable repair requiring contact with bare wires. He
credibly stated that cable damage and subsequent repair are common.

The
fact that another breaker was labeled #43 is sufficient for me to conclude that
a miner might reasonably deenergize the wrong cable before conducting a repair.
A miner who finds what he is looking for might stop looking and would fail to
notice that there was another breaker marked with the same number. A miner
might not look for or see the mismatched tag, especially if it was below the
cable and obscured by mud. Therefore, the violation—failure to properly
identify a breaker—is reasonably likely to result in the discrete safety hazard
against which the regulation is directed—deenergizing the wrong equipment
before repair.

Respondent
cites two ALJ cases to assert that Step 2 requires actual—not just theoretical—potential
of the proffered event. These decisions do not control my decision here. As ALJ
decisions, they are non-precedential. Further, neither case involved an S&S
evaluation. Both cases instead dealt with imminent danger orders. Jim Walter
Res., Inc. , 29 FMSHRC 1043, 1043 (Nov. 2007) (ALJ); Consol of Ky., Inc. ,
30 FMSHRC 1, 1 (Jan. 2008) (ALJ). [3] Here, the
dangerous condition would be created by deenergizing the wrong equipment before
conducting repairs. The #43 miner was operating at the time. If a miner needed
to repair the cable on the #43 miner—a fairly common occurrence—it is
reasonably foreseeable that he could deenergize the mislabeled #25 instead—creating
the contemplated hazard.

Respondent
argues that the Secretary failed to demonstrate that the #25 was energized or
would be without an examination, or that miners would be exposed to an
energized, damaged cable in normal mining operations. Resp’t Post-Hearing Br.
at 8 (Jan. 7, 2021) (“Resp’t Br.”). In support, it states: the #25 was brought
underground only recently; the #25 breaker was not powered; no cables were
damaged; the #43 was identified correctly; and it would have conducted an
examination before use. Id.

The
recent installation may support a modification in negligence, but it does not
negate the fact that the #25 is plugged into a breaker marked #43. The proper
identification of the #43 adds nothing because the danger is the possibility
that a miner wanting to deenergize the #43 will deenergize the #25 because it
is improperly marked as #43. That Respondent would conduct an exam first relies
on miner precaution, which is irrelevant to an S&S analysis. See Sec’y
of Lab. v. Consolidation Coal Co. , 895 F.3d 113, 118 (D.C. Cir. 2018)

The
contentions that the violative breaker was not powered, and that no cables were
damaged at the time of inspection, are overcome by the requirement to assume
the continuation of normal mining operations. The #25 was already plugged in,
and the cables were running to the machine. Therefore, I assume, in normal
operations, that the improperly marked #25 would be energized, and that the
cables would require eventual repair from common mining operation damage. See
U.S. Steel Mining Co. , 6 FMSHRC at 1574 (holding that, in the Mathies
analysis, one “cannot ignore the relevant dynamics of the mining environment or
processes”).

c.         Step 3: It is reasonably
likely that a failure to deenergize the correct equipment would cause an
injury—electrocution.

Mathies Step 3 asks whether the hazard,
not the violation itself, is reasonably likely to cause an injury. Musser
Eng’g, Inc. , 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the likelihood
of injury, judges must assume the occurrence of the hazard. See Newtown
Energy, Inc. , 38 FMSHRC at 2037.

I assume the occurrence of the
hazard—a miner conducting repairs on an energized cable because he deenergized
the wrong [improperly marked] continuous miner at the breaker. The Secretary
provided undisputed testimony that contact with a live cable during repairs
could result in electrocution. I therefore find that the hazard is reasonably
likely to result in an injury.

Respondent
correctly notes that the Commission has held it insufficient that a violation
“could” result in an injury. Wolf Run Mining Co. , 32 FMSHRC 1669, 1678
(Dec. 2010) (remanding for more precise discussion of potential injuries). However,
I do not find only that an injury could occur. I find that one is
reasonably likely to occur during normal mining operations because of the
improperly identified breaker.

I
reject Respondent’s contentions:

a)
That the #43 was identified properly. Resp’t Br. at 10. While true, the hazard
of injury results from the improper marking of the #25 breaker as #43.

b)
That the breakers at issue were next to each other, so that a miner could see
both and would deenergize both or look at the cable tag to be safe. Id. This
all relies on miner precaution—irrelevant to Mathies Step 3. Consolidation
Coal , 895 F.3d at 118.

c)
That the #25 was recently brought in and was not energized. Resp’t Br. at 10. The
machine would be energized during continued normal mining operations because it
was brought into the mine to be used in those operations. See supra
Section III.B.3.b.

d)
That the #25 would have been properly identified prior to use. Resp’t Br. at

11. This again assumes miner precaution.

e)
Finally, that there were no issues with any of the equipment. Id. I
assume the necessity of repairs based on credible inspector testimony and the
“relevant dynamics of the mining environment or processes.” See U.S. Steel
Mining Co. , 6 FMSHRC at 1574.

d.         Step 4: It is reasonably
likely that such an injury would be of a reasonably serious nature—severe burns
or shock.

An
inspector’s conclusion that a possible injury is of a reasonably serious nature
has been held sufficient for Mathies Step 4. See Consol Pa. Coal Co. ,
43 FMSHRC 145, 149 (Aug. 2021) (finding it sufficient that the inspector
characterized the potential injury as “serious” and noted potential injuries). The
Commission also does not require a specific type of injury for it to be
considered serious. See S&S Dredging Co. , 35 FMSHRC 1979, 1981–82
(July 2013).

Here,
the Secretary provided credible, undisputed testimony that that the hazard
could result in severe burns or shock, or even death. Respondent only addressed
the likelihood of injury, see Resp’t Br. at 9–11, making no
assertions about the severity of the injury if it occurred. I find it is
reasonably likely that an injury that could include electrocution would be a reasonably
serious injury.

4.         Negligence

I
find that negligence was properly assessed as “moderate.” The foremen charged
with inspecting the load center are familiar with the mining industry and
relevant facts. They should have been familiar with the protective purpose of
labeling the breaker properly to identify which equipment it powers. Therefore,
I find that a reasonable prudent person in their position should have known
about the violative condition and acted to remedy it.

Respondent
clearly could have known of the condition because it provided no rebuttal to
the inspector’s contention that the foreman inspects the load center twice per
day. [4]
While it is possible that the #25 miner was only brought into the mine within
the last inspection cycle, it was plugged into a breaker with the wrong
marking, the same as another breaker in that load center, and nobody noticed it
during the installation or subsequent examinations. Further, the existence of a
small tag on the cable with the correct marking does not negate the obvious
violative condition of the more apparent, improper identification on the
breaker.

5.         Penalty

The
Secretary has entered Respondent’s violation history [MSHA Directorate of
Assessments, Assessed Violation History Report] into evidence. See Ex.
P-6. I have reviewed Respondent’s general and repeat violations, and I find
that the Secretary has properly considered Respondent’s minimal violation
history in his calculation. I agree that the Secretary has properly evaluated
the size of the mine in his calculation. The parties have stipulated that
payment of the penalty will not affect Respondent’s ability to continue in
business. Jt. Stip. 6; S. Br. at 2.

The
proposed penalty was based, in part, on the negligence [moderate] and gravity
[reasonably likely] assessed in the citation. While I affirm the negligence and
gravity as assessed, I do find that the operator’s negligence here was at the
low end of the moderate scale due to its proactive adoption of a program, not
required by the regulations, to “lock-out, tag-out, try-out” equipment. The
inspector acknowledged that he was aware of the program. One cannot rely on
this program, and the miner cooperation and precaution upon which it depends,
as an absolute protection against injury. But it seems logical that the program
would reduce the likelihood of injury in these circumstances, and I find that
the operator should be credited for that.

The
citation was terminated almost immediately by properly marking the breaker as

25, so the operator rapidly complied upon notification. Thus, Respondent

demonstrated good faith in achieving rapid compliance following citation. Taking
into account both the gravity of the violation—particularly, the S&S
finding—and the mitigation of that gravity by the “lock-out, tag-out, try-out”
initiative, I assess a penalty of $700.

C.        Conclusion

For
the above reasons, I affirm the citation as written and assess a penalty of
$700.

IV.       CITATION NO. 9204098

A.        Factual
Findings

This
citation was issued by Inspector Walter Young on February 8, 2021. Ex. P-3. He
assessed gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,”
and one person affected. Id. He assessed negligence as “moderate.” Id.
The description read, in part:

The Mine Operator failed to comply
with their approved mine Ventilation Plan . . . in that, the perimeter of the
Bleeder system was not maintained safe for travel. Accumulations of dark,
orange, murky, standing water were permitted to accumulate . . . at various
locations[]. These areas contain tripping hazards in the form of yellow air
lines, slick lines, suction hoses, rocks, coal sloughage, crib blocks, rocks
and other debris which could not be seen under the surface of the colored water.

Id. Respondent’s Plan was approved by
MSHA on February 26, 2020. Ex. P-5, MSHA0065. Section AA is the provision
Respondent is alleged to have violated, and reads in part:

The means for maintaining the
bleeder safe for travel will include compressed air lines routed underground,
used in conjunction with air pumps to remove water as necessary to permit safe
travel through the perimeter bleeder system. . . . Standing water shall be
pumped and or drained down below the top of elevated walkways to assure for
safe passage around the perimeter of the bleeder system.

Ex. P-5,
MSHA0067.

In
bleeder systems measuring several miles, the inspector was only able to enter
approximately 40 feet before having to stop because of “murky,” “dirty dark
orange water” that came above his 16-inch boot. Tr. I at 206, 208, 214, 228;
Tr. Volume II at 45–46 (Sept. 29, 2021) (“Tr. II”); Ex. P-4, MSHA0018. The
inspector took depth measurements of 1.6 and 1.8 feet by reaching as far into
the bleeder as he could, noting that he also observed fresh water stains up to three
feet high. Tr. I at 208, 211, 217.

The
inspector testified that he could not see below the surface of the water in the
two inspection areas. Id. at 214. Mr. Verbosky, Consol’s safety
inspector, acknowledged that he could not see through the water and would not
be able to see obstacles underneath, see Tr. II at 52–53, 65, though Mr.
Houchins, Consol’s assistant mine foreman, stated that a lot of the water was
clear, id. at 168.

The
inspector said that the bleeders were not maintained to be safe for travel. Tr.
I at 170. Tripping hazards associated with the presence of standing water
include rip sloughage, rocks, loose crib blocks, suction lines, discharge
lines, air lines, slick lines, and generally uneven terrain. Id. at 170,

197. Possible injuries include slip and fall injuries, strains, sprains,
     concussions, contusions, and broken bones. Id. at 198, 208. He also
     noted the possibility of cellulitis from skin or wound contact with
     contaminated water. Id. at 208, 288–91.

While
acknowledging that it was possible to drown in an inch of water, see id.
at 234, the inspector assessed the most likely severity of the injury to be “lost
workdays or restricted duty” from a slip and fall injury. He also noted that
examiners normally travel in pairs, but that the practice would not prevent one
person from tripping. Id. at 235.

The
standing water had no effect on the ventilation. Tr. II at 23, 141; Ex. R-5. The
bleeder is not a place where miners regularly work—it is only traveled by
examiners, and nobody was conducting exams at the time of the inspection. Id.
at 32, 86. Mr. Baker, Consol’s mine examiner, stated that miners, including
examiners, are supposed to walk carefully while doing their work. Id. at

115. Similarly, Mr. Houchins stated that the presence of standing water makes
     you walk more carefully. Id. at 158, 183.

Multiple
bleeders had standing water, at different levels, for six weeks. See Tr.
I at 188, 190–94; Ex. P-4, MSHA0027, 0030–34. Consol continuously pumped the
water and added equipment—pumps, compressors, discharge lines, sumps—as
necessary. Tr. II at 35, 63–64, 89, 112, 136, 164. Mr. Verbosky testified that
water had been pumped down below the cited levels at dates prior to the
inspection. Id. at 40. Mr. Baker testified that water had previously
been pumped down to ankle depth or lower (calling it a “minimum level”), but
that unforeseen circumstances and problems with pumps contributed to the cited
standing water. Id. at 104, 121; see also Tr. I at 265–68; Ex. P-4,
MSHA0027–30.

Respondent
expended significant effort to remove water. Messrs. Verbosky and Houchins
testified about installing multiple compressors on the surface. Id. at
63, 136, 161. They each also noted the creation of sumps to move water. Id.
at 72–73, 136, 137, 176–77. Mr. Tajc, Consol’s ventilation engineer, and Mr.
Houchins each described carrying new or repaired pumps several miles to abate
the accumulation. Id. at 93, 146, 151, 152–53, 154.

Witnesses
also described compounding problems. First, the inspector acknowledged that the
bleeders in this mine were predominantly very wet, and that there is water in
the bleeders all the time that is impossible to remove. See Tr. I at 170,

270. There were continuous equipment failures, but Respondent replaced,
     repaired, and installed additional pumps. See id. at 229 – 31, 255 – 567;
     Ex. P-4, MSHA0007 – 08. Finally, a water pipe broke around the time of the
     citation, and Mr. Houchins attested to previously changing broken pipes. See
     Tr. II at 114, 146.

B.        Disposition

1.         Violation

The
cited standard requires development of and compliance with an approved ventilation
plan. 30 C.F.R. § 75.370(a)(1) (2022). Required contents include the means of
maintaining bleeders free of standing water. See id. § 75.371(aa) (2014).

The
requirements of a MSHA-approved ventilation plan are treated as mandatory safety
standards for the purposes of inspection. The cited standard requires the
operator to follow the contents of the approved plan. The approved plan
required pumping to remove standing water specifically to make travel safe. See
supra Section IV.A.; Ex. P-5, MSHA0067.

Respondent
asserts that there is no violation because it complied with the Plan, stating,
“[N]owhere in the mine’s ventilation plan does it state that the mere presence
of standing water [of] any depth or color is a violation.” Resp’t Br. at 23. Respondent
argues that because the Plan “does not establish any criteria for when a
certain depth or color of water constitutes a violation,” it lacked notice of
the criteria the inspector used to assess the violation. Id. at 27.

The
Plan requirements are enforceable as mandatory safety standards. Respondent was
not without notice of the applicable standard. First, precedent provides that
such a violation and corresponding S&S designation have been affirmed
against this operator. See Consol Pa. Coal Co. , 39 FMSHRC 1893, 1899
(Oct. 2017) (“Consol does not contest the finding that the accumulations of
water violated the ventilation plan’s requirement that bleeders be maintained
safe for travel, thus satisfying the first element of the Mathies test.”).

Second,
per the Skidmore standards, I am persuaded that the Secretary’s
interpretation of the regulation—that a violation occurs when standing water is
at a depth and darkness that obscures possible obstacles—is reasonable. First,
this interpretation is consistent with the regulation’s language requiring the
removal of standing water to ensure safe travel. See Ex. P-5, MSHA0067. Plain
language dictates that safe travel is hindered by the presence of standing
water. This is due to the presence of obstacles obscured from view.

Second,
this interpretation serves a permissible regulatory function. The Secretary’s
reasoning is valid because the regulation is intended to protect miners—in this
case, from slip and fall hazards.

I
find that the Secretary proved the violation by a preponderance of the
evidence. Standing water existed in the violative bleeders. The water went
above the inspector’s boots even before deeper points in the water. Testimony
from the inspector and Consol employees demonstrated that the water was
“murky” and darkly colored to the point that they could not see obstacles under
the water. This is sufficient for a violation under the strict liability for
mandatory safety standards.

2.         Gravity

a.         Likelihood

The
Secretary asserts that the injury is reasonably likely. If the hazard—inability
to see obstacles while traveling through standing water—occurred, it is
reasonably likely to result in tripping and falling. I affirm the assessed
likelihood.

b.         Severity

The
Secretary provided credible testimony that tripping over an obscured obstacle
would result in a sprain, broken bone, or head injury. I find that such an
injury would reasonably result in a miner missing at least a full day of work. I
affirm the assessed severity.

c.         Number
of Persons Affected

The
inspector assessed that only one miner would be affected by the hazard. I find
this reasonable because only examiners and inspectors travel the bleeder
systems. Further, while examiners usually do this in pairs, it is likely that
one would see the other fall and avoid the hazard. I affirm the assessed number
of persons affected.

3.         S&S

I
affirm the S&S designation for the following reasons.

a.         Step
1: The violation has been established.

The
failure to keep a bleeder clear of standing water that obscures fall hazards is
sufficient to constitute an underlying violation of a mandatory safety standard
for the purposes of Mathies Step 1. See supra Section IV.B.1.

The
Commission has affirmed a judge’s S&S finding against this operator in
sufficiently similar circumstances. See Consol Pa. Coal Co. , 39 FMSHRC at
1901. The facts in that case are almost identical to those here. In that case,
the same inspector cited Consol for a violation of section 75.370(a)(1) because
water was taller than his 18-inch boot, extended over a large area, was
discolored, and contained tripping hazards. Id. at 1897. I find that the
remaining Mathies factors were also established by a preponderance of
the evidence.

b.         Step 2: The violation
was reasonably likely to result in the discrete safety hazard against which the
regulation is directed—inability to travel safely because of obscured obstacles.

Unsafe
travel is the discrete safety hazard against which the Plan’s violated
provision intended to protect. I find the inspector’s description of the depth
and color of the water credible. Even accepting Mr. Houchins’ statement that a
lot of clear water existed, that fact could not negate the presence, in other
locations, of deep and “dark, orange, murky, standing water” as cited.

Further,
the description mirrors the violative conditions already held to be sufficient
for Step 2. In the previous similar Consol case, the Commission accepted the
inspector’s explanation that there were uneven floors and debris, that some
water was so murky that a miner could not see his feet, and that it was
reasonably likely that a miner would trip and fall walking through that hazard.
Consol Pa. Coal Co. , 39 FMSHRC at 1899.

The
Commission also expressly found that “[t]he requirement of a safe travelway is
inextricably intertwined with the ventilation plan requirements of section
75.370.” Id. at 1900 (acknowledging that examiners are required to
travel bleeders). This negates a defense that miners do not work in the area,
because examiners are required to walk the bleeders in the course of their
work, and it is the operator’s duty to ensure that they may travel there
safely.

It
is reasonably likely that a miner working in the area would not be able to see
obstacles while traveling through the violative bleeders. Logic dictates that a
person might reasonably trip over such an obstacle or unknown terrain and fall,
or that the miner might step on or into an unseen obstacle, leading to a foot
or leg injury. This possibility is sufficient to meet the requirement for Step

2. Therefore, the violation—failure to maintain bleeders free of standing water—is
   reasonably likely to result in the discrete safety hazard against which the
   regulation is directed.

c.         Step 3: It is reasonably
likely that inability to see obstacles in the standing water would result in an
injury.

At this stage, the hazard caused by
the inability to see obstacles in standing water has been established. For the
reasons below, I find that the evidence establishes a trip, stumble, or fall
due to obscured obstacles is reasonably likely to result in an injury.

Based
on similar facts, the Commission has credited competent testimony that a miner
who trips and falls is, “at a minimum, reasonably likely to suffer reasonably
serious injuries such as broken bones.” Consol Pa. Coal Co. , 39 FMSHRC
at 1900. It is sufficient here that the inspector credibly testified that
individuals could trip over many hidden obstacles in the murky, standing water,
resulting in sprains, broken bones, or concussions. This testimony was
bolstered by the fact that Mr. Verbosky acknowledged that there were places at
which he could not see beneath the water’s surface and would not be able to see
obstacles.

I
reject Respondent’s assertions to the contrary. First, the operator contends that
water in the bleeders never impeded or affected the ventilation. Resp’t Br. at

34. This is irrelevant to the particular provision of the Plan that requires
    removal of standing water to permit safe travel.

Second,
the operator argues that examiners are trained to walk through water in a
bleeder cautiously. Id. at 34–35. Mr. Baker and Mr. Houchins testified
to the caution employed in traveling the bleeders to take ventilation readings
and facilitate water removal. This testimony is irrelevant, however, because the
Commission has stated that miner precaution is not a defense in a Step 3
analysis. See Consol Pa. Coal Co. , 39 FMSHRC at 1900–01 (quoting Eagle
Nest, Inc. , 14 FMSHRC 1119, 1123 (July 1992)) (“[T]he exercise of caution
is not an element in determining the likelihood of injury once the reasonable
likelihood of the occurrence of the hazard is established, because ‘[w]hile
miners should, of course, work cautiously, that admonition does not lessen the
responsibility of operators, under the Mine Act, to prevent unsafe working
conditions.’”).

d.         Step 4: It is reasonably
likely that such an injury would be of a reasonably serious nature—broken
bones, sprains, or concussions.

An
inspector’s assessment of an injury as reasonably serious has generally been accepted.
See supra Section III.B.3.d. Here, the Secretary has provided credible
testimony that falling over obscured obstacles in standing water can result in
strains, sprains, concussions, contusions, broken bones, and even death from
drowning.

Respondent
mostly addresses the likelihood of injury. See Resp’t Br. at 34–36.
Most relevant, Respondent contests the inspector’s basis for his testimony that
there are also hazards associated with the presence of contaminants that could
cause cellulitis if the water contacted existing skin wounds. I need not
address this, however, because it is sufficient for Step 4 that a trip,
stumble, or fall over obstacles obscured by standing water would lead to the
reasonably serious injuries cited by the inspector, and by the Commission and
its judges in similar cases.

4.         Negligence

I
find that negligence was improperly assessed as “moderate.” This is supported
under a reasonable prudent person standard specific to mine operators. Respondent
is familiar with the mining industry and relevant facts, and it has explicit
familiarity with the protective purpose of this particular regulation. See
supra Section IV.B.3.a. (noting that Respondent’s similar violation has
been affirmed as S&S by the Commission within the last five years). Therefore,
I find that a reasonable prudent person in Respondent’s position should have
known about the violative condition.

The
operator knew of the violative condition, but I find that the operator conducted
every reasonably expected action to abate the standing water condition, even in
the face of compounding problems. The Commission has affirmed a finding of no
negligence where the Secretary failed to describe any actions not taken to meet
the standard of care. See JWR , 36 FMSHRC at 1977. There, the Commission
found no failure to act, noting that the inspector explained the citation was
issued because “MSHA believed there was negligence and JWR ‘did not do
everything [it] could’ to see that the contractor was following regulations.” Id.

Here,
the inspector acknowledged that Respondent implemented all means of removing
water, noting that so long as all the equipment continued to run, those methods
would have been sufficient. Tr. I at 274. He stated that the measures were
clearly insufficient because everything should not have been failing at once. Id.
at 238.

This
is similar to JWR because no specific failed actions were described. As
with the broad failure to “do everything [it] could,” the Secretary here
asserts that the failure of the measures taken equals negligence. I disagree.

While
the presence of standing water existed for six weeks, the evidence demonstrates
that considerable work was done to pump the water, that the number and severity
of violative areas decreased over time, and that water was often pumped to
acceptable levels before recurrence.

This
was no small feat under the circumstances. Employees hand-carried replacement
water pumps miles to remove water. Respondent installed more compressors when
the existing were insufficient, and it built sumps to facilitate removal in
steps. I find it noteworthy that Mr. Houchins, the assistant mine foreman, was
personally involved in extraordinary efforts to correct the problem. See
Tr. II at 146–54; Ex. R-6, CONSOL 022.

Numerous
compounding problems also existed. Respondent dealt with constant wet
conditions, broken pumps, and broken water pipes adding to the natural
accumulation. It was reasonable to progressively address the problem as
attempts proved inadequate, and there was no evidence that the operator was
insufficiently focused on the problem. See Tr. I at 254–57; Tr. II at
101–06, 115–16, 135–37, 146; Ex. P-4, MSHA0037–40; Ex. R-5, 6; see also Resp’t
Br. at 38. Indeed, the inspector conceded that every corrective measure used to
lower the water to acceptable levels had already been implemented by the
operator before the inspection. See Tr. I at 200–01, 241–42, 274; see
also Resp’t Br. at 38.

The
Secretary argues that grossly inadequate actions should not be considered
mitigating circumstances. See S. Br. at 18; Maple Creek Mining, Inc. ,
26 FMSHRC 539, 553 (June 2004) (ALJ), aff’d in part & rev’d in part on
other grounds , 27 FMSHRC 555 (Aug. 2005). There, the judge affirmed the
negligence finding because she found that the pumping conducted was “grossly
inadequate.” 26 FMSHRC at 553. The Commission affirmed her negligence finding,
agreeing that the testimony indicated a “lack of seriousness” on the operator’s
part with respect to water accumulation in an escapeway. 27 FMSHRC at 566.

Accepting
the Secretary’s contention, I find that the record in this case does not support
a lack of seriousness on Respondent’s part. While previously inadequate, the
measures employed made bleeder travel safe intermittently, and Respondent made
continuous efforts, including the addition of a surface pump, before the
inspection cited the violation. A senior mine manager was personally involved
in these extensive efforts. The facts here are thus clearly distinguishable. For
the above reasons, I reduce the negligence finding from “moderate” to “none.”

5.         Penalty

I
have previously recognized the Secretary’s proper consideration of the
operator’s business size and ability to continue in business. See supra
Section III.B.5. These Section 110(i) considerations remain the same here.

Respondent’s
history of violations is reflected in Exhibit P-6. Its history consists of six
repeat violations during the inspection period. Accordingly, this factor has
already been properly considered and is of no consequence in my decision to
modify this assessed penalty.

I
affirm the violation’s gravity as assessed. I found that injury is reasonably
likely, is likely to result in lost workdays or restricted duty, is S&S, and
would affect one person. Accordingly, this factor did not affect my decision to
reduce the penalty.

Following
the citation, Respondent pumped the accumulations of water down and made the
area safe for travel within nine days. Considering this fact with its
demonstrated continuous mitigation, I find that the operator demonstrated good
faith in attempting to achieve rapid compliance after notification.

The
proposed penalty was based, in part, on the negligence assessed in the
citation. Because I find that a reduction in negligence is warranted, see
supra Section IV.B.4., I also find that a penalty reduction is appropriate.
The proposed penalty was $674.00, based in part on the Secretary’s finding of
moderate negligence. Because I find that the operator was not negligent, I assess
a penalty of $150.00.

C.        Conclusion

I
affirm the citation and gravity. I find a reduction in negligence from “moderate”
to “none.” I therefore assess a penalty of $150.00 in accordance with the modification.

V.     CONCLUSION

It
is ORDERED that Citation No. 9203910 be AFFIRMED as issued.

It
is also ORDERED that Citation No. 9204098 be AFFIRMED with the
assessed gravity, and that the level of negligence be MODIFIED from “moderate”
to “none.”

Finally, it is ORDERED that
the Respondent pay the Secretary of Labor the assessed penalty of $850.00
within 30 days of the date of this decision. [5]

/s/
Michael G. Young

Michael G. Young

Administrative Law Judge

Distribution
(First Class Mail and email):

Ryan M.
Kooi, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street, Mailstop
SOL/22, Philadelphia, PA 19103, [email protected]

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

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

[1] This docket
included ten section 104(a) citations. Eight were settled by the parties and
approved prior to hearing. See Decision Approving Partial Settlement at
3 (Oct. 26, 2021).

[2] The operator in U.S. Steel Mining
Co. failed to fully cover a gash in a cable, but the wires inside still had
insulation apparently intact. 6 FMSHRC at 1573. The Commission affirmed the
judge’s S&S finding because the lack of both layers was sufficient to put
miners at risk of electric shock. Id. at 1575.

The
Commission in Harlan Cumberland Coal Co. affirmed a judge’s S&S
finding where a splice was not completely insulated. 20 FMSHRC at 1285, 1286. The
Commission rejected the argument that reasonable likelihood of injury could not
be established where there were not exposed copper leads. Id. at 1286. Both
cases are inapposite to my evaluation here. There is no cable damage alleged
for me to apply the Commission’s finding that danger exists because of the
protection degradation and lack of knowledge about the integrity of the
internal wire insulation.

[3] Imminent danger orders presume that
if normal mining continues, there will be a danger of severe injury or death
from a known hazard it can be abated. Here, we must determine whether a hazard
not yet present may develop, and we presume that it will not be discovered or
abated if so. But even if I applied the standard suggested by respondent, the
case here is distinguishable.

The
inspector in Jim Walter Resources, Inc. improperly assumed a possible
roof fall as a potential ignition source. 29 FMSHRC at 1045 (failing to note
any indications of imminent roof fall or other roof hazards). This was,
therefore, pure conjecture. Id. at 1048. Where it is incorrect to assume
a roof fall, the standard here is logically aimed at ensuring equipment can be
properly deenergized, which is necessary for movement or maintenance of the
equipment or cables. I have found the reasonable likelihood of damage to the
cables, and the necessity for deenergizing them for repair, to be supported by
credible testimony about the conditions and practices in the mine environment.

A
withdrawal order was issued in Consol of Kentucky, Inc. because of
speculation that electrical equipment and cables could be left in the
area as an ignition source. 30 FMSHRC at 1, 6, 7 (noting no credible evidence
that such equipment was left in the area, making ignition, at best, a
theoretical possibility). A judge cannot assume the presence of an ignition
source that is not established as present or imminent when reviewing an
imminent danger order, but may find that conditions arising in the continuance
of normal mining operations may result in the emergence of a hazard in the
future.

[4] It is somewhat
ironic that the operator asserts that a miner would have noted and avoided the
hazard, yet a foreman charged under the Act with the responsibility of
identifying hazardous conditions failed to do so in this case. This is not a
criticism of the foreman, but an observation on the dangers of confirmation or
other biases and the possible effect of time and other pressures and
distractions on miners working in a challenging, dynamic underground
environment.

[5] 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.