Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited CONSOL Pennsylvania Coal Company after an inspector found cuts in an energized feeder cable at the Enlow Fork Mine. The Commission affirmed the judge's finding that the cable was not adequately insulated and fully protected, and it upheld moderate negligence. It vacated the significant and substantial designation because the cable was secured in locked hooks and the Secretary did not provide substantial evidence that miners were likely to contact the damaged cable and receive an electric shock. The Commission reduced the penalty from $2,487 to $1,000. Chair Traynor dissented from the S&S and penalty rulings, while Commissioner Althen joined the result and offered an additional rationale concerning the inspector's handling of the cable.

Decision snapshot

• Cited authority: 30 C.F.R. § 75.517; 30 U.S.C. §§ 814(d)(1), 820(i), and 823(d)(2)(A)(ii)(I)
• Outcome: The cable violation and moderate negligence were affirmed, the S&S designation was vacated, and the penalty was reduced to $1,000.
• Key point: A damaged energized cable is not S&S without substantial evidence that miners are reasonably likely to contact the electrical hazard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY
OF LABOR,                                       :

MINE
SAFETY AND HEALTH                               :          

ADMINISTRATION
(MSHA)                                  :          

:          

v.                                              
          :           Docket No. PENN 2019-0008

:          

CONSOL
PENNSYLVANIA COAL                         :

COMPANY,
LLC                                                       :

BEFORE:
Traynor, Chair; Althen and Rajkovich, Commissioners

DECISION

BY: Commissioner Rajkovich [1]

This case arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)
(“Mine Act” or “Act”) and concerns a citation issued by the Secretary of
Labor’s Mine Safety and Health Administration (“MSHA”) to Consol Pennsylvania Coal
Company,

LLC
(“Consol”). The citation alleges a violation of the mandatory safety standard
at 30 C.F.R. § 75.517, which requires that “[p]ower wires and cables . . .
shall be insulated adequately and fully protected.” The inspector designated
the citation as significant and substantial (“S&S”), [2] and MSHA charged Consol
with a moderate degree of negligence.

Consol contested the citation
and the proposed civil penalty. The case proceeded to a hearing before a
Commission Administrative Law Judge. On December 30, 2019, the Judge issued a
decision affirming the citation and finding moderate negligence and an S&S
violation. The Judge assessed a $2,487 penalty. 41 FMSHRC 803 (Dec. 2019)
(ALJ). Consol filed a petition for discretionary review, contending that the
record evidence does not support findings in the Judge’s decision and that the
decision contains errors of law. The Commission granted the petition for
review.

The Commission affirms the
findings of a violation and moderate negligence; however, we reverse and vacate
the S&S designation. Finally, in the interest of judicial economy, the
Commission assesses a penalty of $1,000 . Chair
Traynor writes a separate opinion in which he dissents from the majority’s
conclusion that the S&S designation should be reversed and from the
majority’s assessment of a $1,000 penalty. In addition, Commissioner Althen
includes a separate opinion in which he sets forth an alternative reason for
concluding that the S&S designation should be overturned.

I.

Factual and Procedural Background

On August 26, 2018, MSHA
inspector Bryan Yates arrived at Consol’s Enlow Fork coal mine in Pennsylvania
to conduct an inspection. Yates proceeded underground, accompanied by Daniel
Colby, Consol’s safety representative.

During the inspection, Yates
and Colby walked along an entry in the No. 13 feeder location. As Yates walked
along the entry, he observed the feeder cable hanging down from hooks secured
to the roof or rib. Tr. 142, 144. The
cable was energized during Yates’ inspection, but the section was not working. Consol
had conducted an electrical inspection of the cable the previous day and had
not reported any deficiencies in the cable. The inspector did not issue any
citations in connection with that inspection.

Yates did not take any
photographs of the cable hanging on the hooks in the citation location. However,
he did take two pictures of the cable hanging in a different area where
testimony established the roof was lower than in the citation area.

Yates had testified that the
cable was hung from a hook that he called a “J hook.” Colby , at one point , also used the
term “J hook.” However, Colby then explained that the term “J hook” was
incorrect and that the hooks upon which the cable hung were properly referred
to as “cable hooks” or “locked hooks.” Tr. 228-30. Colby illustrated the
difference using two photographs taken by Yates, which show the subject cable
further along the entry. Sec’y Ex. 13 (third and fourth photographs), Tr. 148.

Looking at the third picture
(the word “pinch” appears”), Colby pointed out that the cable hung on a locked
hook that was completely closed and attached to the rib of the entry. He
referred to the hook as a “cable hook” or “locked hook” attached to the rib. To
show the difference between J-hooks and the cable hook upon which the cable
hung, Colby circled a small open hook that he identified as a “J hook” at the
edge of the picture. This small hook contrasted with the larger locked hooks
supporting the cable.

Colby explained that, due to
the way the cable was hung on the locked hooks, the only way for the cable to
fall to the floor was to destroy the insulated and locked hooks. Tr. 227. Thus,
according to Colby, the cable could not simply fall from the roof but could be
dislodged only if some event destroyed the entire closed and attached hook.

Yates
testified that, in looking at the cable, he thought he saw possible damage. Tr.

143. His belief was that coal would strike the cable as it passed underneath. Tr.
144. He did not provide details about the scope or
     location of damage at this stage—i.e.,
     the bottom, side , or top of the cable. Colby testified that he could
     not see any damage to the cable at that time. Tr. 203. Thus, neither Yates nor
     Colby identified specific damage to the cable
     at that point. Tr. 171, 203, 217. Yates
     had the cable de-energized and locked-and-tagged out of service so that he
     could take it down to examine it hand-over-hand.

Yates and Colby varied
somewhat on their estimate of the height of the entry. However, they agreed its
removal required a team effort in which they reached above their heads , and Colby used
a walking stick to grasp the cable to remove it from the hooks. Yates
also said, “it was pretty hard” to get the hooks “out of those plates ,” which enhanced the difficulty in
removing the cable. Tr. 174-175. Colby
explained that the purpose of the height of the cable was to allow materials to
pass under the cable freely.

After Yates and Colby took
the cable down, Yates proceeded with his hand-over-hand inspection. Colby testified that Yates said he felt a “couple [of]
bumps,” which he showed to Colby. Tr. 204. Colby was standing four to five
feet from Yates at the time. Yates did not identify the location of these bumps
on the cable – top, bottom, or side. He also did not testify to the location in
relation to the entry– right side, middle, left side, etc.

Colby
testified that before Yates showed him any damage at this stage, Yates then picked
at the area with a screwdriver to clean that area of the cable. Tr. 204. Yates
initially denied such action. Later, however, he testified that he did carry a
screwdriver and did use it to clean out cuts. When questioned whether he used
it in this instance, Yates replied, “I don’t remember.” Tr. 165. Colby
further testified that Yates twisted the cable, applying a strong torque. Tr.

219. Yates conceded that he twisted the cable. Tr. 173. Yates also stated that
     he tapped or hit the cable, though he could not remember what he used to hit it. Tr.
     165.

Yates testified that he found
two cuts in the cable. He described the first cut as three-quarters of an inch.
He did not take a picture of this cut or describe it, but he did testify that
the cut did not expose any energized wires. The parties presented no additional
evidence regarding this cut.

Yates’s testimony focused on
the second cut, three feet from the first cut along the cable. Yates described
it as one and three-quarters inches long; he did not estimate a width. However,
he said he could see the white lead and exposed copper. Colby also testified
that he could see the lead and further testified that he had then agreed with
Yates that the opening was a violation. Tr. 208, 220, 222.

After handling the cable as
described above, Yates took pictures of the cut . Sec’y Ex. 13 (first two photographs). In taking the
pictures, Yates used a zoom feature which greatly enlarged the depiction of the
cut. When asked whether using the zoom feature would distort the appearance of
the cuts, Yates replied, “I’m sure it would.” Tr. 186.

Consol’s General Maintenance
Foreman Travis Stout testified that ground fault protection of 300 milliamps,
25 times more sensitive than the law requires, protected the cable. Consequently,
if a lead wire were bare or compromised, it would trip the breaker. Tr. 242. In
short, if the lead were damaged, the electricity would go to ground, and the
cable would immediately de-energize. Stout testified that Yates’ photos showed
damage to the outer jacket and what might be damage to the inner conductor but
that he could not see any damage to a lead. Tr. 238. Stout agreed that it would
be possible that the electricity might go to ground by striking the person
holding the cable. Tr. 244

Yates issued a section 104(a)
citation citing moderate negligence and a significant and substantial
violation. Regarding negligence, he opined that Consol should have found the
cut. As the basis for the S&S designation, Yates believed the cable could
be easily knocked off the locked hooks and fall to the floor. He assumed miners
then would grasp an energized cable to reattach it to the hooks near the roof.

II.

The Judge’s Decision

Consol’s argument
centered upon Yates’ actions before he identified a violative cut. Consol
argued there was not substantial evidence of the status of the cable before
Yates’ action picking, hitting, and twisting. In turn, according to Consol,
without such evidence, there could not be substantial evidence of a violation,
negligence , or an S&S violation because Yates’ actions may have created the condition he cited.

The Judge found that:

This Court further recognizes that Yates’
vigorous manipulations may have embellished the cable’s opening. ( see
Colby’s comments regarding such at R-D). However, this Court does not find that
Yates’ examination techniques, however
unorthodox or embellishing, created the cited cable’s inner damage.

The undersigned has practiced law for over 40 years and is not
naive regarding the regrettable truth that witnesses sometimes lie on the
stand. This Court further understands that Yates’ personality and zealotry have
raised antipathy and suspicion on the part of the Respondent. However, having
considered all the evidence presented by the Secretary and Respondent, in
toto this Court ultimately rejects Respondent’s arguments, express or
implied, that Yates had deliberately or recklessly damaged the cable so as to
have self-created the violation and then had given perjured testimony in
support of such.

41 FMSHRC at 818-19 (footnote
omitted).

The Judge, therefore,
concluded that the Secretary demonstrated that Consol violated the safety
standard and was moderately negligent. He affirmed the S&S designation
concluding that there was a reasonable likelihood of a miner grasping an
inadequately insulated power conductor knocked from a hook and receiving a
serious or fatal injury.

III.

Disposition

A.    
Substantial Evidence
Supports the Judge’s Finding of a
Violation.

The record evidence supports
the Judge’s determination that Consol
violated section 75.517. [3]
The Judge credited Yates’ testimony that he observed possible damage to the
cable when hanging in the entry, performed a hand-over-hand inspection, and
identified two cuts.   Tr. 143-45, 166-68; 41 FMSHRC at 819.

Colby did not get a close
look at the cable until after Yates’ manipulations. After those manipulations,
he observed damage to the outer jacket and the inner conductor; he acknowledged
that the cable did not meet the requirements of
the standard . Tr. 208, 217-18, 222, R.
Ex. D. General Maintenance Foreman Travis Stout agreed that the photograph in
the record depicted damage to the outer jacket and perhaps showed the inner
conductor. Tr. 238; Sec’y Ex. 13.

On review, Consol argues that
it should not be held liable for the violation, because the inspector engaged
in a series of manipulations on the cable , such as hitting it, picking at it with a screwdriver , and vigorously
manipulating it. The Judge determined that Yates’ manipulations embellished damage
to the cable but did not create damage. [4]
41 FMSHRC 818-19. The record is sufficient to sustain
the Judge’s finding of cuts in the cable so that it was not fully protected
when Yates conducted his initial hand-over-hand inspection. Accordingly, we
affirm the finding of a violation.

B.    
Substantial Evidence
Supports the Judge’s Negligence
Determination.

The Judge found that the
operator knew or should have known of the violative condition and affirmed the citation’s
moderate negligence designation. 41 FMSHRC at 823. We conclude that the record
supports a determination of moderate negligence.

As noted in the Judge’s
decision, Yates had concerns that the cable could be damaged from coal passing
beneath it. 41 FMSHRC at 815-17 . That caused
him to take it down for a closer look and conduct a hand-over-hand inspection,
which ultimately disclosed damage on the outer covering. We do not find any
basis to reverse the Judge's determination that Consol's failure to detect the
problem and take corrective action before Yates’ identification constitutes
moderate negligence.

C.    
Substantial Evidence Does Not
Support the Judge’s Significant and Substantial Designation.

A violation is deemed to be S&S
if, based on the particular facts surrounding the violation, there is a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature. See Cement Div., National Gypsum
Co ., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has refined the standard
into four steps:

In order to establish that a violation
of a mandatory safety standard is significant and substantial, the Secretary of
Labor under  National Gypsum  must prove: (1) the 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 that 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), citing Newtown Energy, Inc. , 38 FMSHRC 2033, 2037-38
(Aug. 2016).  

The hazard from a
violation of section 75.517 is that it may cause an electrical shock to a miner
resulting from contact with an inadequately insulated or not fully protected
power cable. [5]
Thus, the Newtown Energy Step 2 issue is whether the violation was
reasonably likely to expose a miner to an electrical current. The allegation of
an S&S violation fails at this step.

Yates identified one reason
for issuing the citation as S&S regarding the cable affixed to the mine
roof. He opined that the cable might get hit or otherwise dislodged from the
insulated hooks, causing it to fall to the mine floor. He believed miners might
then grasp the cable and attempt to rehang it above their heads. The relevant
testimony by Yates is:

Q. And why did you evaluate it [hazard of touching]as reasonably likely?

A. We take several things into consideration there. Exposure is
definitely one big part of it, and it's reasonably likely that if a miner -- when a miner grabs that cable to hang it back up, after becoming
knocked down with the shuttle car or a ram car, or scoop, that where it was at in that location, it's

reasonably likely that they would grab it in that area and become seriously injured or fatal.

Tr. 150 (emphasis added).

The Judge accepted this basis
for finding a likelihood that a miner would come into contact with the damaged
portion of the cable. 41 FMSHRC at 820. The difficulty with that reasoning is
that there is no evidence that the cable could be easily knocked to the floor. To
the contrary, the evidence demonstrates that it would be very unlikely for the
cable to be dislodged unintentionally.

Yates stated that he believed
the cable could be knocked down because he had seen cables knocked off J-hooks
before. Tr. 150. However, he also testified that it was “pretty hard” to take
down this particular cable , requiring the efforts of both Yates and
Colby. Tr. 174-75.

More importantly, Colby
testified that the cable at issue was held in place by cable hooks with locking
mechanisms, not open J-hooks. [6]
Tr. 226-30. Yates’ own photographs of the subject cable in a nearby area
support the locked attachment. [7]
Sec’y Ex. 13 (third and fourth photographs). These photographs show a cable
locked in place with a closed loop, rather than an open J-hook. The third
photograph provides a useful comparison between the two types of hooks
discussed: a circled J-hook can be found at the edge of the picture, while the photographed
cable is hung on a nearby locked hook. This locked hook is completely closed and
attached to the rib of the entry. Colby testified that for a cable secured in
this fashion to fall to the floor, “you would have to destroy [the] hooks.” Tr.
226-27. The Secretary presented no evidence, through Yates’ testimony or
otherwise, to suggest any likelihood of the cable being dislodged from locked
cable hooks or of such hooks being destroyed.

We review a Judge’s factual
determinations under the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). A determination as to the substantiality of evidence
supporting a challenged finding “must take into account whatever in the record
fairly detracts from its weight.” Universal Camera Corp. v. NLRB , 340
U.S. 474, 488 (1951) (quoted in Midwest Material Co. , 19 FMSHRC 30, 34
n.5 (Jan. 1997). Here, the weight of testimony and exhibits does not show a
likelihood of the cable being knocked to the floor by passing equipment, thus
exposing miners to the theorized hazard of electric shock when attempting to
replace the dislodged cable. Given the absence of evidence supporting Yates’
theory and the weight of evidence that detracts from it, we find that
substantial evidence does not support the Judge’s S&S determination under
Yates’ theory of the hazard.

The Judge’s decision also
suggests two other possible sources of exposure to the hazard. First, the Judge
noted that a miner “could” reach overhead and grasp the cable. 41 FMSHRC at

821. However, there is no testimony as to why (or whether) a miner would be
     likely to do so. The Judge also noted that miners “might” be exposed to the
     hazard while handling the energized cable during feeder moves. Id. at
822. The testimony regarding feeder moves is extremely brief. See Tr.
     161-62, 245. For example, the Secretary provided no information as to when the
     cable is energized and de-energized during this process or how miners would
     handle the cables, factors which affect likelihood of exposure to the shock
     hazard. As the Judge’s own language indicates (“could” and “might”), the
     Secretary failed to present substantial evidence to support an S&S
     determination under either of these theories.

For the above reasons, substantial
evidence does not support a likelihood of miners coming into contact with the
cable (and thus being exposed to electric shock) under any of the theories
presented above. The determination is reversed and vacated. [8]

D.    
The Penalty Assessment is
Reduced to a Penalty of $1,000.

MSHA applied its penalty
point system to the violation and assessed a penalty of $2,487. The Judge
accepted the MSHA assessed penalty and imposed a penalty of $2,487. A significant
portion of the penalty assessed by MSHA resulted from the gravity finding accompanying the
S&S designation – a reasonable likelihood of the hazard occurring. The
Judge's assessment, likewise, turned substantially on the gravity designation. 41
FMSHRC at 823.

The Commission considers six
factors in assessing monetary penalties, namely: the operator’s history of
previous violations, the appropriateness of the penalty to the size of the
operator, whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and efforts
toward good faith compliance. 30 U.S.C. § 820(i). Our decision vacates the
S&S designation and, effectively, finds it unlikely that the hazard upon
which the inspector based the S&S designation could occur. Thus, the
gravity of the violation is reduced . The Judge’s findings concerning the other factors
remain unchanged. See 41 FMSHRC at 823-24.

Given the relatively small
penalty assessed by the Judge and in the interest of judicial economy, we deem
it appropriate to conserve resources and complete this proceeding at this
juncture by setting a penalty directly. See, e.g. , Spartan
Mining Co. , 30 FMSHRC 699, 724 (Aug. 2008); Capitol Cement Corp. , 21
FMSHRC 883, 896 (Aug. 1999). Taking our findings of moderate negligence and the
unlikeliness of exposure to electrical current into account, we assess a final
penalty of $1,000.

IV.

Conclusion

Based upon the preceding
analyses, the violation and finding of moderate negligence is affirmed. The
significant and substantial designation is reversed and vacated. Finally, the
Commission assesses a penalty of $1,000.

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

Commissioner Althen, concurring,

I join my colleague,
Commissioner Rajkovich without qualification to form a majority decision that
substantial evidence does not support a finding that the cable was reasonably
likely to result in a reasonably serious injury to a miner. I also find that a penalty
assessment of $1,000 against Consol Pennsylvania Coal Company, LLC is
appropriate. Commissioner Rajkovich clearly explains the error regarding the
absence of any reasonable likelihood of a miner touching a live wire. I write
separately only to explain an additional rationale as to why the Judge erred in
finding the violation to be significant and substantial (“S&S”).

Commissioner Rajkovich
explains the undisputed elements of a significant and substantial violation. Thus,
there is no need to recite those elements here. Indeed, the S&S standard is
not an issue in this case. [9]
Moreover, we need not discuss the established S&S standard because this
case should turn on the Inspector’s mishandling of the cable before examining
the interior of the cable.

I would reverse the
S&S finding because the Judge accepted deeply flawed and mishandled
evidence as a basis for his decision. The Judge found the actions by Bryan
Yates, an inspector with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”), wrongful and that such actions embellished the damage.
Nonetheless, he discounted the inspector’s action. That was error. Having found
the inspector’s actions improper and affecting the evidence and his testimony
overstated, the Judge should have dismissed the S&S claim. The inspector’s
interactions with the cable before finding a tiny area of exposed wire in the
interior irremediably tainted the evidence. Accordingly, I would find the inspector’s
inspection technique in this specific case prevents a finding of an S&S
violation. [10]  

The Secretary must
prove the S&S elements of a violation by a preponderance of the evidence. Here,
that determination depends upon whether substantial evidence supports a finding
that the cable was S&S when found by Yates—that is before he admittedly
inflicted additional damage to the cable. [11]

Yates did not identify
any meaningful damage to the cable before he took several actions that, as the
Judge found, certainly affected the condition of the cable. The evidence is
that he first saw a small slit in the cable. Testimony regarding Yates’ actions
in probing, striking, and twisting the cable undercut a finding of substantial
evidence because the testimony compels a finding that Yates’ actions likely, or
at least may well have, created the hazard of exposure to a live wire.

The
Judge essentially found the inspector altered (“embellished”) the adverse
condition of the cable. 41 FMSHRC 803, 818 (Dec. 2019) (ALJ). In turn, Yates
based the S&S designation upon observations after those embellishments.

Yates testified his
hand-over-hand examination disclosed two bumps on the surface of the jacket. He
found or at least testified to nothing more at that point. Daniel Colby,
Consol’s safety representative, testified that he did not see any damage at
that point. Thus, the inspector did not testify to the exposure of any inner
level of the cable beyond a surface bump. Colby’s notes refer to a “nick” in
the cable. Tr. 216. Certainly, a “nick” does not portend access to a live wire
underneath the thick jacket.

Such testimony does not
constitute substantial evidence that there was damage to the inside of the
cable, creating a hazard that a miner might contact a live wire at that point. Yates
did not say he saw any damage to the interior of the cable while it was hanging
or even after his hand-over-hand inspection. Tr. 171. Had he not taken the
destructive actions but simply found a violation and required standard taping,
there would not be any S&S question. However, Yates did not stop with his
visual and manual cable inspection. He took three distinct actions
intentionally designed to “open” the cable.

First, Yates used a
screwdriver assertively to affect the
bump on the cable. Colby testified that
he saw Yates use the screwdriver to “dig” into the bump . Tr. 225. He
characterized Yates’ conduct with the screwdriver to “pry” at the bump . Id.
Y ates
initially denied such action.

Later,
however, he testified that he did carry a screwdriver and did use it most of
the time. When

questioned
whether he used it in this instance, Yates replied, “I don’t remember.” Tr.

165. [12]
     Thus, there is positive testimony that Yates dug into the cable jacket with a
     screwdriver, and Yates testified to a lack of memory but that he does normally
     use a screwdriver. [13]

Second, Yates
affirmatively testified that he struck the
bump with his screwdriver or walking
stick. Tr. 165. Certainly, the purpose was to affect the area of the bump . Yates
testified he was “cleaning” it. However, obviously, hitting a bump or cut on
a cable jacket with a stick will tend to crack it or widen any existing crack
and cause additional damage.

Finally, Yates twisted
the cable and applied a strong torque to the bump area. Yates initially denied
twisting the cable; however, during cross-examination, he recanted and conceded
he twisted the cable so he could open it. Tr.
173.

Colby
testified that he had never seen an inspector engage in such conduct in his
time as a safety representative. Colby’s testimony
was:

Q. When you say you have never seen an i nspector do that before, what do you mean by that?

A. I never saw one that actually rotated the cable and started really getting into it and t orquing it to try to inspect it. I never saw that.

Q. What about with the screwdriver
and digging into the hole, did you ever see that?

A. Never.

Tr.
205.

The Judge did not discredit
Colby’s testimony. Rather, he found Yates manipulative actions “unorthodox or embellishing.”
41 FMSHRC at 819. Strangely, the Judge faulted Consol for not providing
testimony about proper inspection techniques. Id . Thus, the Judge
affirmed an S&S designation even while acknowledging the Inspector
embellished or exacerbated the condition to an unknown extent through prying,
striking, and physically manipulating the cable and requiring the operator to
explain proper investigation techniques. He placed a duty on the operator to
explain the obvious: picking at, hitting, and twisting a cable is unsuitable
and may cause further damage. [14]

Finally, Yates’ intended for
his photographs to magnify the image of damage. A small crack is magnified many
times over and, even then, does not show any metal. Whatever damage is discernible
to an inner cable clearly may have resulted from opening a slit and then
vigorously twisting the cable. [15]

In summary, there is no
evidence of any hazard created by the cable condition before Yates’ actions. The
Judge made no effort to determine the extent to which Yates’ activities, which
the Judge found exacerbating or embellishing, affected the condition of the
cable. Thus, the record lacks substantial evidence regarding the hazard of an exposed
live wire existing before Yates’ manipulations that had an indeterminate effect
upon the cable.  

I must and do tread carefully
when a violation alleges the danger of an electrical shock. However, in this
case, we have: (1) no evidence of the condition of the cable before Yates’
intervention, (2) multiple severe manipulations of the cable, (3) the use of
locked, insulated cable

hooks
virtually immune from accidental dislodgement, and (4) the absence of evidence
of actions

during
a move affecting the condition of the cable. Substantial evidence does not
support a likelihood that the condition of the cable before the Inspector’s mishandling
caused any hazard of touching a live wire or an adverse effect upon any miner.

/s/
William I. Althen

William
I. Althen, Commissioner

Chair
Traynor concurring in result, in part, and dissenting,

I
concur, in result, with the majority’s decision to affirm the Judge’s finding
of a violation and a moderate level of negligence. I cannot, however, join
their erroneous decision to vacate the Judge’s decision that the violation
below was “significant and substantial” (“S&S”) – that is, of a nature that
could significantly and substantially contribute to the cause and effect of a
coal or other mine safety or health hazard. 30 U.S.C. § 814(d)(1). Unfortunately,
my dissent will illustrate that my fellow Commissioners have taken an approach
in this case that departs from basic norms of honest and principled appellate
review.  

The Judge concluded that the
Secretary demonstrated it was reasonably likely that a miner would contact an
inadequately insulated cable that provided power to a trammable coal feeder. 41
FMSHRC 803, 820 (Dec. 2019) (ALJ). He relied upon evidence that, considered
cumulatively , demonstrates that the feeder’s trailing cable was accessible
and would be contacted by miners during continued normal mining operations. Specifically,
the Judge relied on: (1) the position of the cable at the time of inspection
– hanging off a hook on the ceiling and into the entry, (2) the potential
for the cable to be knocked to the floor by a passing vehicle, (3) the
frequency with which miners traveled through the entry, and (3) undisputed
evidence of the miners’ routine handling of the cable during moves of the trammable
feeder. Id . at 820-822. Notably, the record below included the
uncontroverted testimony of a witness from each party – the Secretary of
Labor’s inspector and the respondent company’s master mechanic – that miners regularly
handled the damaged cable while it carried 480 volts of electricity
necessary to move the large machine.

The majority badly mischaracterizes
the Judge’s S&S decision by focusing exclusively on the likelihood of miners
contacting the damaged cable after it is knocked from the hook by a passing
vehicle. Slip op. at 4. But undisputed record evidence offered by
both parties establishes that miners
handled the energized cable regularly during powered moves of the feeder. To
reverse the S&S determination, the majority ignores this critical evidence
in favor of a de novo record, built by discarding credibility
determinations without discussion. 

In Part I of my dissent, I
identify the majority’s errors with more specificity. In Part II, I demonstrate
that the Judge’s S&S decision is supported by substantial evidence in the
record. [16]

PART I

A.    
The Majority Errs in Ignoring
the Judge’s Credibility Determinations

Inspector Bryan Yates was
joined by Consol safety representative Daniel Colby during the inspection of
the entry. Each testified as a witness at the hearing and although portions of
their recollections were consistent, in certain instances their testimony
materially differed. The Judge ultimately resolved the conflicts by crediting
the testimony of Yates over Colby. 41 FMSHRC at 819 (finding “the inspector’s
testimony to be credible and reliable.”); id . at 820 (rejecting “many of
the Respondent’s suggested finding of fact in favor of those argued by the
Secretary.”). [17]
The majority’s fact section does not acknowledge the Judge’s credibility
determination. Accordingly, they err. See Consol Pennsylvania Coal Co .,
43 FMSHRC 145, 151 (Apr. 2021) (citation omitted) (holding that a Judge’s
credibility determination is entitled to great weight and may not be overturned
lightly.).

Instead,
my colleagues inappropriately recite the record evidence de novo . See
Donovan on behalf of Chacon v. Phelps Dodge Corp ., 709 F.2d 86, 92 (D.C.
Cir. 1983) (finding that it was error for the Commission to “substitute a
competing view of the facts for the view the ALJ reasonably reached”); see
also Harlan Cumberland Coal Co ., 20 FMSHRC 1275, 1277 (Dec. 1998) (“We see
no basis for overturning the judge’s crediting of the first-hand observations
of [the inspector] over the testimony of Harlan’s safety director.”).

It is well established that
the Commission reviews a Judge's credibility determinations under an abuse of
discretion standard. See Jim Walter Res., Inc ., 37 FMSHRC 1868, 1871
(Sept. 2015). There must be “compelling reasons” to take the “extraordinary
step” of reversing a Judge's credibility determination. See Fort Scott
Fertilizer-Cullor, Inc ., 19 FMSHRC 1511, 1516 (Sept. 1997) (quoting Hall
v. Clinchfield Coal Co ., 8 FMSHRC 1624, 1629 (Nov. 1986)) (internal
quotations omitted).

In
proceedings under the Mine Act, the Judge is the fact finder, empowered to make
credibility determinations to resolve conflicting evidence. See , e.g .,
Jim Walter Res., Inc ., 37 FMSHRC at 1871; see also
Commission Procedural Rule 69(a), 29 C.F.R. § 2700.69(a). We have consistently
held that:

[The Commission is] not a supervening fact-finding
panel and may not reverse a Judge's decision merely because evidence in the
record could have supported a contrary outcome. [ ] If the Judge's decision is
one a reasonable fact finder could reach based upon the evidence, we must
accept the Judge's determination even though, were we the fact finder, we might
have reached a different outcome.

Consolidation
Coal Co ., 39 FMSHRC 1737, 1743 (Sept.
2017).

The majority irresponsibly
fails to offer even the barest explanation as to why they do not apply these
well-settled standards requiring our deference to our Judges’ resolution of
conflicting evidence. In their pursuit of a preferred outcome, they have
abandoned their duty to deal squarely with the record. Below, I discuss two key
facts the Judge found to support his S&S determination that were improperly
disregarded by the majority. These two examples will illustrate how the
majority has authored a statement of facts that, remarkably: (1) omits material
findings of fact and (2) cites testimony that the Judge rejected without even
passing reference to the standards that direct them to defer to our Judges’
credibility determinations.

1. The cable was suspended
   from a J-hook.

The Judge found that the
cable was suspended from the ceiling of the entry on a J-hook. 41 FMSHRC at 816
(citing Tr. 150, 153). The Judge specifically relied upon this factual finding
when he determined that a passing ram car loaded high with coal might knock the
cable to the floor. Id . at 821 (citing Tr. 152,
221 and Summary of Testimony supra .)

The majority does not mention
that the Judge found that the cable hung from a J-hook. Instead, they cite
conflicting testimony regarding the subject hook, including Colby’s initial
testimony that the cable was hanging from a J-hook and his later testimony that
it was hanging from “cable hooks” or “locked hooks.” [18] Slip op. at 2. My
colleagues state that:

Colby explained that, due to the way the cable was
hung on the locked hooks, the only way for the cable to fall to the floor was
to destroy the insulated and locked hooks. Thus, according to Colby, the cable
could not simply fall from the roof but could be dislodged only if some event
destroyed the entire closed and attached hook.

Slip op. at 2. [19]

Of course, the Judge resolved
the conflict in the evidence in favor of the Secretary; the Judge credited
Yates’ consistent testimony and discredited Colby’s inconsistent testimony. The
Judge’s resolution of the conflict in favor of Yates was material because it
informed his subsequent conclusion that the cable could be knocked loose from
the J-hook on the ceiling by a passing vehicle.

The majority errs in citing
and relying upon Colby’s inconsistent testimony that the Judge discredited.

2. The cable was hanging off
   its hooks, down into the entry and in the path of miners and their vehicles.  

The Judge found that at the
time of inspection the cable was hanging into the entry, within the grasp of
miners working or traveling in the area. 41 FMSRHC at 820-21; Tr. 160, 188. The
Judge credited Yates’ testimony that the cable was easy to reach, hanging

approximately
six feet or less from the ground. [20]

Instead, the majority states
that “Yates and Colby varied somewhat in their estimate in the height of the
entry. However, they agreed [the cables] removal required a team effort in
which they reached about their heads.” [21]
Slip op. at 3. “Colby explained that the purpose of the height of the cable was
to allow materials to pass under the cable freely.” Id . at 3.

Of course, it is undisputed
that the hook attached to the ceiling was above their heads. Instead, the
height of the hanging cable was in dispute. The Judge resolved the
dispute. He credited Yates, finding that the cable was in the path of miners. My
colleagues refuse to acknowledge this credibility determination.

Presenting the evidentiary
record without the context of the Judge’s credibility determinations is an
underhanded way to silently overturn those determinations. My colleagues are
attempting to avoid providing the deference commonly afforded to a Judge’s
factual findings in order to reach their preferred result. See Farmer v.
Island Creek Coal Co ., 14 FMSHRC 1537, 1541 (Sept. 1992) (A Judge’s
decision to credit the testimony of a witness is entitled to great weight and
may not be overturned lightly.).

B.    
The Majority Further Errs
in Dismissing Uncontroverted Testimony from Both Parties’ Witnesses as
Insufficient.

In other instances, in their
analysis reversing the Judge, the majority at time dismisses the record
evidence as somehow insufficient. Specifically, the majority dismisses the
parties’ witnesses’ agreement that the cable would be contacted by miners
during the move of the feeder as well as evidence that a miner would move the cable
from a vehicle’s path.

1. The trailing cable is
   energized and handled by miners during feeder moves.

Both Inspector Yates and Consol’s
Master Mechanic Travis Stout confirmed that the cable is energized and handled
by miners during a move. Tr. 161, 244-45. The cable is hung upon hooks in the
entry between moves. It is taken down again for the next move. It remains
powered during normal operation of the feeder. The Judge concluded that these
moves contributed to the likelihood of electrocution.   

However, the majority finds
that this conclusion lacks the support of substantial evidence because they
erroneously conclude the Secretary provided no information as to when the cable
is energized or de-energized. The majority is incorrect; both Inspector
Yates and the operator’s witness master mechanic Travis Stout confirmed that
the cable is energized and handled by miners regularly during a
powered move.

Q. So when they go to do a power move and move this
feeder, will men be handling this cable?

[Yates]
They can, yes.

Q. Would
they be handling this cable with power on?

[Yates]
You would have to, yes.

Tr.

161. No witness for the operator testified to the contrary. Stout confirmed
     Inspector Yates’ testimony:

Q. What is the feeder cable -- how does the feeder
cable exist in an underground coal mine?

...

[Scott] Feeder cable, it's highly insulated hangers all
the way to the machine. Any slack would be put on top of the machine, but the
only time it's really handled is during a power move, which in this case, it would
probably be once a week or once every two weeks.

Q. And
what voltage is this cable?

[Scott]
It's 480 volts.

Tr.

245. Of course, the fact that no testimony was elicited by the Secretary’s
     counsel as to when, if ever, the cable is de-energized does not detract from
     the parties’ witnesses’ agreement that the cable is powered and handled
     during moves . What more than consistent testimony from both parties would
     the Commissioners in the majority need the Secretary to produce to satisfy
     their apparently arbitrary application of the substantial evidence rule?

The majority also states that
the Secretary provided no information as to how miners would handle the cable. The
majority is again incorrect. Yates testified that miners grasp the feeder cable
as it trails behind the feeder. Tr. 161-62. Colby conceded that miners do not
wear electrocution-protective gloves. Tr. 209-210. Yates also testified that
miners are typically “hard[] on” cables during machine moves and will “bow” the
trailing cable as it moves. Tr. 162. The cable is 480 volts and the surrounding
area is wet. Tr. 151-53. Electricity can track through a pinhole. Tr. 191. Accordingly,
there is ample evidence as to how miners handle the cable during moves.  

Finally, the majority states
that the Judge’s use of the term “might” in finding that the move was an
occasion when the miners “ might be exposed to electrocution” indicates
that the Judge was conveying that the probability of electrocution was below
the threshold of “reasonable likelihood.” Slip op. at 8 (emphasis added). The
majority cites no precedent in support of this novel theory. Rather, their
overly semantic focus is inconsistent with the Commission’s guidance in Newtown
Energy, Inc ., 38 FMSHRC 2033, 2039 (Aug. 2016) (“We recognize that
‘reasonable likelihood’ is not an exact standard. Obviously, a Judge cannot
calculate the degree of risk of the occurrence of the hazard in precise
percentage terms.”). Here, obviously, the Judge’s decision to cite the feeder
move as one of the four factors in support of his Step 2 conclusion indicates
that the Judge believed that the evidence was sufficient.

2. The low height of the cable
   increased the potential for contact.  

As previously stated, the
Judge found that the cable was hanging low and into the entry at the time of inspection.
Yates observed the energized feeder cable hanging down into the entry, six feet
from the floor; he could easily reach up and touch it. Tr. 150-52, 160, 188.

The majority states that the
Judge’s conclusion that it was likely that miners would come into contact with
the low-hanging cable is not supported by substantial evidence. Slip op. at
7-8. More specifically, the majority states that there is no testimony
regarding why a miner would touch the cable when it was hanging down into the
entry. Slip op. at 7.

Again, the majority mischaracterizes
the record. Inspector Yates testified that cars were loaded high with coal and
he was concerned that the coal was coming into contact with the cable. Tr. 152.
Miners travel the entry in vehicles. Inspector Yates expected that a miner
would move the cable to prevent it from becoming further damaged. Tr. 153-54.

C.          My
Colleagues Err by Ignoring the Mine Act’s Penalty Criteria.  

Section 110(i) of the Mine
Act provides that:

The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing civil monetary penalties,
the Commission shall consider the operator’s history of previous violations,
the appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator’s
ability to continue in

business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation

30
U.S.C. § 820(i). Under our case law and procedural rules, if the Commission
reverses a Judge’s decision affirming a S&S designation, the Commission
should remand the case to the Judge to reassess a new civil penalty. See,
e.g., Peabody Midwest Mining , 42 FMSHRC 379, 389 (June 2020) (“vacat[ing]
the S&S designation for the violation . . . [and] remand[ing] the case so
that the Judge may reassess the penalty . . . .”); 29 C.F.R. § 2700.30(a) (“In
assessing a penalty the Judge shall determine the amount of penalty in
accordance with the six statutory criteria contained in section 110(i) of the
Act, 30 U.S.C. 820(i), and incorporate such determination in a written
decision. The decision shall contain findings of fact and conclusions of law on
each of the statutory criteria and an order requiring that the penalty be
paid.”) (emphasis added).

My colleagues ignore section
110(i) of the Mine Act, Commission case law and our Procedural Rules to
independently assesses a penalty of $1,000 without fully considering the
statutory penalty criteria and in disregard for the appropriate division of
roles between us –termed political appointees on the Commission tasked with
reviewing the Judge’s application of the section 110(i) factors for errors of
fact or law – and our long-tenured Judges tasked with applying the factors to assess
a penalty. Unfortunately, my colleagues do not respect this boundary between
the trial and appellate function, even though they did acknowledge its
existence as recently as our decision in Solar Sources Mining, LLC , 43
FMSHRC 367, 372 (Aug. 2021).

In Solar Sources , I
noted in dissent that my fellow Commissioners took the unusual step of
re-assessing the penalty themselves in their majority decision rather than
remanding to the Judge with instructions for him to reassess the penalty. My
colleagues, in response, acknowledged that the “Commission typically leaves
such determinations in the hands of our Judges” but explained the unique
circumstances of that case compelled their departure from ordinary practice. Id .
Not persuaded, I warned that their decision threatened to “usurp the discretionary
role of our Judges in the assessment process, arrogating to themselves the
power to set a penalty.” Id . at 381. Here, they attempt to do it again –
usurping the Judge's penalty setting role – this time, without even a fig leaf
claim of unique circumstances. If they are going to transgress long-standing
boundaries between our trial and appellate functions, they should at least do
so squarely, transparently and with reasoned explanation. See NBCUniversal
Media, LLC v. N.L.R.B. , 815 F.3d 821, 823 (D.C. Cir. 2016) (“When an
agency's decision lacks adequate justification because . . . it fails to offer
a coherent explanation of agency precedent, the judgment under review is
wanting for lack of reasoned decision-making.”)

PART II

A.    
 The Commission’s
“Significant and Substantial” Standard

A violation is S&S (30
U.S.C. § 814(b)), if based on the particular facts surrounding the violation,
there exists a reasonable likelihood that the hazard contributed to by the
violation will result in an injury or illness of a reasonably serious nature. See
Cement Div., Nat'l Gypsum Co ., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies
Coal Co ., 6 FMSHRC 1 (Jan. 1984), the Commission further explained:

In order to establish that a violation of a mandatory
safety standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.

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

The Commission’s Mathies standard
had been used regularly in both Commission and federal court proceedings in its
original form until it was altered by the Commission in Newtown, 38
FMSHRC at 2037-38.  

In Newtown,
the Commission added an additional burden to Step 2, requiring that
instead of merely proving that the violation “contributed” to a hazard, the
Secretary must prove a “reasonable likelihood of the occurrence of the hazard.”
Id . The Commission’s Newtown decision was a reaction to the
Fourth Circuit’s decision in Knox Creek Coal Corp. v. Sec’y of Labor ,
811 F3d 148, 162 (4th Cir. 2016), in which the court stated that “for a
violation to contribute to a discrete safety hazard, it must be at least
somewhat likely to result in harm.”  Accordingly, in Newtown the
Commission raised the Secretary’s Step 2 burden of proof.

In Peabody Midwest Mining,
LLC , 42 FMSHRC 379, 383 (June 2020) [22]
a different Commission majority again changed the S&S standard. According
to Peabody under Step 2, the Secretary must now prove that “the violation
was reasonably likely to cause the occurrence” of the hazard. Compared
to the original requirement in Mathies that the Secretary must
merely demonstrate that the violation “contributed” to the hazard, the new Peabody
standard represents a major change in the law. The Secretary now faces a much
higher burden of proof to demonstrate that a violation is S&S. [23]  

Additionally, in Peabody, the
Commission for the first time added the term “cause” to step 3 of the test
as well. The Commission’s shifting interpretations of the term “significant and
substantial” in section 104(d)(1) of the Mine Act demonstrates an institutional
confusion at the Commission. Notably, my colleagues write separately on
S&S, without a consensus opinion. The institutional confusion is the result
of statutory ambiguity. The Secretary of Labor would be well-served to aid the
Commission in resolving this confusion by proffering an authoritative
interpretation of section 104(d)(1) of the Mine Act. [24]  

B.    
The Judge’s Decision to
Affirm the “Significant and Substantial” Designation is Supported by
Substantial Evidence in the Record. [25]  

When reviewing a Judge’s
decision, the Commission is bound by the terms of the Mine Act to apply the
substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh
Coal Co ., 11 FMSHRC 2159, 2163 (Nov. 1989) ( quoting Consolidated Edison
Co. v. NLRB , 305 U.S. 197, 229 (1938)).        

The “substantial evidence”
standard is highly deferential. See Cumberland Coal Res., 717 F.3d 1020,
1028 (D.C. Cir. 2013) (“we may not reject reasonable findings and conclusions,
even if we would have weighed the evidence differently.”) (citing Sec'y of
Labor v. Keystone Coal Mining Corp ., 151 F.3d 1096, 1104 (D.C. Cir.
1998)); Consol Pennsylvania , 43 FMSHRC at 155 (citations omitted). Under
the substantial evidence test, the “possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency's
finding from being supported by substantial evidence.” Sec'y on behalf of
Wamsley v. Mutual Min., Inc ., 80 F.3d 110, 113 (4th Cir. 1996).

The Judge found that the Secretary
demonstrated it was reasonably likely that a miner would contact an
inadequately insulated power conductor. 41 FMSHRC at 820-21 (undertaking a “step
2” analysis). The cable was accessible to miners because: (1) it was hanging
off the hooks into the entry, (2) it could be knocked to the floor, (3) it is
handled by miners during the feeder move and (4) because the area is frequently
traveled. [26]
41 FMSHRC at 821-22.  He also concluded that the occurrence of an electrical
shock from the feeder cable was reasonably likely to result in a serious or
fatal injury. Id . at 822 (undertaking a “step 3 & 4” analysis). The
Judge’s S&S findings and conclusions are supported by the record, eminently
reasonable, and thus must be affirmed by the Commission. Keystone Coal, 151
F.3d at 1104 (The “sensibly deferential standard of review does not allow us to
reverse reasonable findings and conclusions, even if we would have weighed the
evidence differently.”).

As
previously stated, Yates observed the energized feeder cable hanging down into
the entry, six feet from the floor; he could easily reach up and touch it. [27] Tr. 150-52; 160, 188. Yates believed that the cable had been hit by a high load of coal,
which is regularly hauled through the entry. Tr. 143, 152, 172, 177. Miners
frequently travel the entry on foot and in vehicles. Tr. 152-157. Yates was
concerned that the low hanging cable would be knocked off the J-hooks from
which it hung and a miner would attempt to rehang it. Tr. 150-151, 188. There
were two cuts on the cable’s outer jacket, one of which was large and deep
enough to damage the inner conductor.

The trailing cable for the
trammable feeder was routinely taken down from the J-hooks and handled by
miners during equipment moves. Miners grasp the feeder
cable as it trails behind the feeder. Tr. 161. The cable is 480 volts and the
surrounding area is wet. Tr. 151-53, 161. Yates testified that electricity can
track through a pinhole. [28]
Tr. 191.

Citing Yates’ testimony, the
Judge found that during continued normal mining operations “coal loaded on top
of ram cars could contact the hanging energized cable and knock it to the
floor.” 41 FMSHRC at 821; Tr. 143, 152-53. Whether the cable was “in a hanging
position or knocked to the floor, [it] was accessible to miners traveling or
working in the area.” 41 FMSHRC at 820; Tr. 150, 155. Furthermore, the Judge
concluded that the evidence demonstrated that miners would physically handle
the energized feeder cable during a powered move. 41 FMSHRC at 821-22. Importantly,
the Judge found that the damage to the cable was “sufficiently extensive so as
to have created the hazard of electrocution.” [29]
Id . at 822.

A Judge is well within the
bounds of his discretion to credit the opinion of an MSHA inspector and affirm
a S&S designation. See Consol Pennsylvania, 43 FMSHRC at 151
(citing Buck Creek, 52 F.3d at 135 (“the ALJ certainly did not abuse his
discretion here in crediting the opinion of [the] Inspector.”). [30]

CONCLUSION

My
colleagues and I affirm the Judge’s finding of a violation involving a moderate
level of negligence. I would affirm the Judge’s S&S determination as
thoroughly supported by substantial evidence and am disappointed in the quality
of the majority’s decision to do otherwise.

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

Distribution:

Brian P. Krier, Esq.

The Curtis Center

170 S. Independence Mall West, Suite 630E

Philadelphia, PA 19106

[email protected]

Patrick Dennison, Esq.

Fisher & Phillips LLP

6 PPG Place, Suite 830

Pittsburgh, PA 15219

[email protected]

Emily
Toler Scott

Senior Trial Attorney

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12 th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

Administrative Law Judge John Lewis

Federal Mine Safety Health Review Commission

875 Green Tree Road,

7 Parkway Center, Suite 290

Pittsburgh, PA 15220

[email protected]

[1]
A majority of Commissioners joins in each
section of Commissioner Rajkovich's opinion in result, and therefore it
constitutes the Commission's decision in this case .

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

[3]
When reviewing a Judge’s factual determinations,
the Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means
“‘such relevant evidence as a reasonable mind might accept as adequate to
support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co. ,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB ,
305 U.S. 197, 229 (1938)).

[4] Commissioner Althen notes that there is an important
difference between creating a violation and embellishing a violation thereby
worsening the condition of a cited area making it amenable to an S&S
finding. Based upon Yates’ established embellishments of the violation and the
absence of evidence of the condition of a cut before the embellishment,
Commissioner Althen finds substantial evidence does not support the Judge’s S&S
finding based upon the condition of the cable after Yates picked at, hit, and
twisted the cable.

[5]
Colby testified that Yates said he found a
“couple bumps” when doing the hand-over-hand inspection. Tr. 204. A finding of
mere “bumps” would not support the existence of a hazard. However, from the
testimony, cuts did exist. As set forth above, we affirm the Judge’s decision
that the cuts constituted a violation.

[6] Colby does at one point state that the cable was hung
from J-hooks (Tr. 202), however he explained that this was a misstatement (Tr.
228-30) and otherwise refers to them as cable hooks or insulated hooks. Colby
notes that the cable at issue could not even fit inside a J-hook, as shown by
Yates’ photographs. Tr. 228-30; Sec’y Ex. 13 (third photograph).

[7] There is no testimony to suggest that the
photographed portion of the cable was unusual with respect to the type of hooks
used. Yates introduced these photographs in the context of discussing the cited
damage. Tr. 147-48. Presumably, they would not have been introduced as evidence
if they could not properly be considered relevant and comparable to the portion
of the cable at issue.

[8] Because we find the absence of a likelihood of the
occurrence of the hazard, we do not need to discuss the operator's argument
regarding the issue of redundant safety measures.

[9] Chair Traynor’s errant discourse on the S&S test
is odd. The proper standard for an S&S violation is not at issue in this
case. Commissioner Rajkovich identifies the standard that has been applied for
forty years. Cement Div., National Gypsum Co ., 3 FMSHRC 822, 825 (Apr.
1981). The core issue in the accepted standard is whether the Secretary
preponderates in proving a reasonable likelihood of a reasonably serious injury
due to a hazard caused by the violation. The Secretary does not challenge that
standard here. My additional objection does not involve the S&S standard
but rather turns on the inspector’s inability to provide any meaningful
testimony regarding the status of interior of the cable prior to his admitted
mishandling of the cable. That failure vitiates the testimony of the condition
of the inner area of the cable. No one can know whether any insulation was
broken before the inspector’s picking at the cut, hitting it, and severely
twisting it.

[10] I agree with the finding of a violation because there
apparently was a small cut in the cable that had not been addressed. The
Commission has not opined and most likely would find it impossible to opine on
a specific degree of “damage” necessary for a cable to fall within the scope of
30 C.F.R. § 75.517. Because of the environment in underground mining and the
thickness of cable jackets, it is certain that cables incur many nicks,
scratches, bruises, or bumps that do not compromise the adequacy of insulation
or protection. Th is case does not provide
sufficient evidence in depth, specificity, or expertise to permit a definitive
ruling on the quantum of damage that must exist for the insulation to be
inadequate on a cable or for the cable to be not fully protected for purposes
of section 75.517. I accept Commissioner Rajkovich’s reasoning on this issue.

[11] I do not suggest that the inspector intended to create
an S&S violation. Indisputably, however, his actions were intended to
affect the condition of the cable. It is this effect of the picking, hitting,
and twisting upon the inside of the cable that is important.

[12] Yates testified:

[M]ost of the time, . . . I peck it with a small screwdriver. So, when the cable is damaged, I
can move the outer jacket out to see if the inner conductors are exposed. That’s why they keep going to my screwdriver because I do pack a small
screwdriver.

Tr. 165.

[13] Chair Traynor fails to appreciate the difference
between credibility issues and facts on the record. Therefore, he asserts the
type of hook from which the cable was hanging is a matter for credibility even
though indisputable evidence in the record shows it was hanging from a locked
hook attached to the sidewall. Sec’y Ex.
13 (third and fourth photographs); Tr. 148-49. He asserts that the majority
does not recognize the cable was hanging over an entry. Of course, he is
incorrect. Commissioner Rajkovich’s opinion explains the position of the cable
and that the inspector and Colby had to struggle with it above their heads
(even using a walking stick) to unhook it from the locked hooks. Further,
evidence showed that the cable was lengthy. The Secretary did not introduce any
evidence to demonstrate any likelihood of a miner touching a cable in a place
far removed from the feeder in moving the cable. We do not even know whether
the nick was on the top, bottom, or side of the cable. The evidence establishes
that the cable could not be knocked from the locked, secured hooks without a
virtually catastrophic contact. The Secretary did not provide any evidence that
a miner would have any reason, advertently or inadvertently, to grasp the cable
at any location even in the vicinity of where the inspector found the nick
during a move of the cable to meet the test of S&S.

[14] In faulting Consol for not having provided evidence
of proper investigation techniques the Judge stated, “ Respondent
presented little or no evidence as to what should be the proper or preferred
techniques for examining and photographing damaged cables.” 41 FMSHRC at 819. This
analysis turns the Secretary’s burden of proof on its head. It is MSHA’s
obligation to act in a demonstrably proper way. It is not incumbent upon a
respondent to “prove” that proper inspection techniques do not include prying
into a cable with a screwdriver, striking it with a walking stick or
screwdriver, and vigorously twisting it thereby causing or opening any cut that
may exist or may have been created by a probing screwdriver. One need not be an
expert to understand that a n intrusion into or initial widening of a
slit would make the cable amenable to further widening by additional
interaction with the cable such as a strong twist. Colby
did not see any damage until after the manipulations. If the operator’s and/or
the miners’ safety representatives are present, these representatives must be
given an opportunity to see the alleged violation before an MSHA Inspector
takes potentially damaging and prejudicial actions.  

[15] The Secretary
introduced two pictures Inspector Yates took of the cable after his
manipulations. In taking the pictures, Yates he used a zoom setting knowing
that it could distort the image to make the cut appear larger. Tr. 186. Pictures
magnifying a scene naturally may have a dramatic impact upon the perception of
a viewer. Magnification may cause a small cut to appear as a gash with the
predictable psychological results. The extent of magnification in Yates’
pictures may be seen by comparing the opening to a small “0” on adjacent black
tape. As a result, the photographs depict the cut as significantly lengthier
and wider than the reality.

[16] Included within Part II are my thoughts upon the
growing confusion in the Commission’s S&S caselaw.

[17] Despite the Judge’s decision to credit the testimony
of Yates over Colby in instances where their testimonies contradict,
Commissioner Althen makes the plainly false statement that “the Judge did not
discredit Colby’s testimony.” Slip op. at 13. And even though I note this for
his attention in this dissent, he insists on maintaining this assertion. Commissioners
can have a wide variety of differing views on questions of law and policy, but
quality of the Commission’s decisions and the integrity of the Commission as an
institution are diminished by deliberately dishonest statements.

[18] Colby testified that the cable was “hung along what
we call insulated hooks, or J-hooks” (Tr. 202), before later testifying that his
reference to “insulated hooks” in his notes (R. Ex. D) actually referred to a
locking hook. Tr. 229-30.

[19] My colleagues rely on Colby’s testimony regarding a
photograph that was taken in a different area of the mine, noting that
Colby identified that in the photograph of this different place the
cable hung from a locked hook.  Slip op. at 2 (citing Sec’y Ex. 13 (third and
fourth photographs)). As Commissioner Rajkovich acknowledges “Yates did not take
any photographs of the cable hanging on the hooks in the cited location. However,
he did take two pictures of the cable hanging in a different area . . .
.” Slip op. at 2 (emphasis added). Photographs of different
hooks in a different location do not contradict the Judge’s decision to
credit Inspector Yates’ testimony regarding the cited location in the entry.

[20] Specifically, Yates testified “in the area where [the
cable] was hanging down, I could easily reach up and grab it.” Tr. 160. Yates also
testified:

Q: With the cable hanging on the J-hooks, could you
easily reach the cable?

A: Where it was down in the entry, yes.

. . .

Q: The area of the cable that you cited, you could
physically reach that cable?

A: Yes.

Q: So it's not a matter of being able to take the
cable down or put it back up, but you could reach the cable and touch it?

A: Yes.

Tr. 188 (emphasis added).

[21] Colby assisted Yates by retrieving the cable because
inspectors are not permitted to conduct “work” in a mine. Tr. 188-89.

[22] This decision is not yet final, as the operator’s
appeal of the Judge’s remand decision is currently pending before the
Commission.

[23]
Turning back to the case at hand, the majority
appears to be confused as to how to analyze the concept of a “hazard” in Step 2
as compared to the likelihood of injury in Step 3.

For
example, in their analysis section, the majority conflates Step 2 and Step 3
and finds that the Secretary failed to fulfill his Step 2 burden because
a miner is not reasonably likely to be injured. Slip op. at 6 (“The hazard from
a violation of section 75.517 is that it may cause an electrical shock to a
miner resulting from contact with an inadequately insulated or not fully
protected power cable. Thus, the Newtown Energy Step 2 issue is whether
the violation was reasonably likely to expose a miner to an electrical
current).

[24] Of course, among the options available to the
Secretary is to simply ask the Commission to defer to an interpretation of
section 104(d)(1) which resembles the original Mathies test.

[25]
The substantial evidence analysis is at times
redundant of the discussion of the errors within my colleagues’ joint fact
section, but I present it again in the context of a full affirmative case in
support of the Judge’s decision.  

[26] The Judge considered these factual findings
cumulatively when concluding that it was reasonably likely that a miner would
be exposed to the damaged conductor.

[27] Yates estimated that the roof in the cited area was 7
to 7.5 feet in height. Tr. 160.

[28]
Colby conceded that
miners do not wear electrocution-protective gloves. Tr. 209-210.

[29] The Judge found that safety precautions instituted by
the mine such as the sensitive ground fault protection are reductant safety
features that are excluded from his S&S analysis. 41 FMSHRC at 821; see
also Consolidation Coal Co. , 895 F.3d 113, 119 (D.C. Cir. 2018); see
Buck Creek Coal Co., Inc ., v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995); Cumberland
Coal Res., LP , 33 FMSHRC 2357, 2369 (Oct. 2011), aff’d , 717 F.3d
1020, 1029 (D.C. Cir. 2013).

[30]
The refusal to apply the same legal standard in
this case as was applied in Consol Pennsylvania is arbitrary and
capricious. See NBCUniversal Media, LLC , 815 F.3d at 823.