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

Plain-English summary

Consol's Enlow Fork longwall intersected an old gas-well borehole that the company and its contractor had been unable to locate from the surface. Their search included maps and databases, aerial photographs, a closely spaced metal-detector grid, and hand excavation, and the cut-through produced no methane or casing. Judge John Kent Lewis held that the broadly worded standard requires reasonable measures, not a successful search or every conceivable effort. He found the Secretary retained the burden of proving unreasonableness and did not show that industry-standard methods, including the decision not to use heavy excavation equipment at a residence, fell short. The judge vacated and dismissed the citation.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1700
• Outcome: Citation No. 9079236 was vacated and dismissed.
• Key point: Failure to locate an old well is not automatically a violation when the operator used measures a reasonably prudent mine operator would consider adequate under the circumstances.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

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

June 15, 2020

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH      

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL CO., LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. PENN 2019-0019

A.C. No. 36-07416-476696

Mine: Enlow Fork Mine

DECISION AND
ORDER

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

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

Before:                        Judge
Lewis

STATEMENT
OF THE CASE

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

LAW
AND REGULATIONS

§
75.1700 Oil and gas wells.

[ Statutory
Provisions ]

Each
operator of a coal mine shall take reasonable measures to locate oil and gas
wells penetrating coalbeds or any underground area of a coal mine. When
located, such operator shall establish and maintain barriers around such oil
and gas wells

in
accordance with State laws and regulations, except that such barriers shall not
be less than 300 feet in diameter, unless the Secretary or his authorized
representative permits a lesser barrier consistent with the applicable State
laws and regulations where such lesser barrier will be adequate to protect
against hazards from such wells to the miners in such mine, or unless the
Secretary or his authorized representative requires a greater barrier where the
depth of the mine, other geologic conditions, or other factors warrant such a
greater barrier.

FINDINGS OF FACT AND CONCLUSION OF LAW

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

JOINT
STIPULATIONS

The parties’ joint stipulations are as
follows:

1. Enlow
   Fork is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission.

2. Enlow
   Fork is an “operator” as contemplated by the Federal Mine Safety and Health Act
   of 1997, as amended (“Mine Act”).

3. The
   proposed penalties, if upheld, will not affect Enlow Fork’s ability to continue
   in business.

4. Each
   citation was properly served as required by the Mine Act.

T.
at 5-6; see also SBI, p. 1. [2]

SUMMARY OF TESTIMONY

Witnesses

James
Baker

James
Baker had been employed at MSHA for five and a half years. T. 12-13. He had
spent 22 week at the National Mine Academy and had a week-long class in
journeyman training. T. 13. Prior to his employment with MSHA he had worked for
approximately 22 years in mining, 17 years underground, and 5 years on the
surface. [3]
T. 13.

At
the time of hearing, Baker worked as a coal mine inspector. T. 13. On direct
examination, Baker testified that in September 2018 he was performing a regular
E01 inspection at Enlow Fork Mine when he was informed that the operator had
struck a gas well. T. 15. Baker verbally issued a § 103(k) order. T. 18. He met
with the mine foreman, Joe Bartolotto, traveled with Bartolotto to the E 30
Longwall Section, No. 73 Shield, and found the borehole that had been cut
through. T. 19.

On
September 10, 2018, Baker issued Citation No. 9079236. GX-1. He issued such
based upon Respondent’s failure to properly locate and plug the cited gas well
in violation of Section 75.1700. GX-1; T. 22-22. As to the violation’s gravity,
Baker found that an injury was reasonably likely to occur. T. 21. Without
locating the well, there would be no way of knowing if methane gas were
present. He concluded that bits on the shearer drum could turn and strike a gas
well “not properly grouted or concrete,” possibly causing an ignition of any
methane gas present. T. 21-22, 48.

Enlow
Fork had a history of methane and ignitions. T. 22. It had been on a five-day
spot for the amount of methane liberated in a 24-hour period. T. 22.

Baker
determined that three persons would be affected by the violation because
typically two shearer operators and one shield man were at the face the entire
9-hour shift. GX-1; T. 22. If bits struck the unlocated borehole or casing with
methane present, an ignition causing burns or smoke inhalation to three
individuals could have taken place. T. 22-23. The worst case scenario would
have been an explosion. T. 23.

On cross-examination Baker agreed that Consol had
preserved the scene after the well breach. T. 30. There was no methane found.
T. 31. The top hole was “very clean.” T. 32-33. The operator’s crew had done
everything in regard to the DNF mining procedures longwall mining method. [4] GX-3; T.
34.

The
well was ultimately plugged with concrete being applied to the mine floor and a
36-inch plug installed in the upper hole. GX-1, Section 17; T. 36. Baker
conceded that Section 75.1700 did not specifically set forth a duty to plug
located wells. T. 38. He further acknowledged that he knew of no applicable
definition or MSHA promulgated rules for “reasonable measures” to locate wells.
T. 40.

The
cited well was ultimately located under a sand mound at a third-party’s house.
T. 41.

Baker
again affirmed his belief that the operator or operator’s contractors should
“have probably found” the well because “it was so close to the way they found
it underground that they probably should have found it on top…” T. 40.

Baker
described the hazard thusly: “if your bits from your shearer hit that casing or
well and it had methane in it, it could cause an ignition.” T. 48. There was,
however, no casing involved in the within citation. T. 48-49. In reaching his
S&S determination, he had taken into account the fact that MSHA’s
cut-through plan allowed the operator to cut through wells that could not be
located. T. 50. Baker was surprised that another inspector (Young) had found
non-S&S in a similar situation in which an operator had cut through a well
that it had been unable to locate. T. 51; GX-3. In reaching his S&S
determination, Baker had not considered such factors—as considered by Inspector
Young—that the well was not producing, that the well contained no metal casing,
that the well was covered over with dirt on the surface, that there was “plenty
of air on the face to dilute the methane coming out of [the] well bore.” T.
53-54.

When
asked how he could determine whether a violation was S&S if he did not know
the four parts of Mathies , Baker replied: “I guess I can’t.” [5] T. 54.

Baker
again expressed surprise that, in another situation involving a borehole
cut-through, an inspector found that the risk of injury to be unlikely. GX-4;
T. 54-55.

On
redirect examination, Baker noted that wells should be properly sealed, grouted,
and plugged before an operator cuts through them. T. 57-58.

On
recross, Baker’s investigation as to the efforts exerted by Respondent in
attempting to locate the cited well was limited to the information received
from the contractor, 18 Karat, and Burns. T. 62.

Jeremy Williams

Jeremy
Williams began his employment with MSHA in 2005 and had been employed as a
supervisory mine safety and health specialist since 2012. T. 66. He had
previously worked as a ventilation specialist and health specialist, receiving
ventilation training every year. T. 66-67. Prior to his employment with MSHA,
Williams had worked for Consol Energy beginning in 1998, last working as an
assistant shift foreman and section foreman. T. 67. He had a bachelor’s degree
in mining engineering from West Virginia. T. 67.

On
direct examination, Williams testified that his current duties included review
and approval of gas well pillar permits, gas well cut-throughs, and alternative
borehole plans. T. 68. As to gas well cut-through plans, mine operators, as
Respondent, must petition for modifications to plug and mine through gas wells
pursuant to Section 75.1700. T. 69; GX-7. Operators may not engage in longwall
mining through gas wells without plugging them. T. 74. Operators, through their
engineering departments, obtain mapping and databases with the state, and gas
well maps to locate on-the-surface gas and oil wells. T. 75.

Hazards
associated with cutting into a well, which has not been plugged, included
methane inundation, ignition, and explosion. T. 75. Enlow Fork was a gassy
mine, probably liberating in excess of six million cubic feet a day, and having
a history of ignitions. T. 75-78; GX-6, 7. Some of the past ignitions did not
involve a metal casing. T. 89-90. Often boreholes were full of water with
methane boiling up through the water. T. 92. Fuel, oxygen, and a heat source
were necessary for an ignition to occur. T. 95-96.

Generally,
the mine maps show where a gas well is located. T. 102. The mine operator,
through its own personnel or contractors, will attempt to locate wells,
observing the local topography, including depressions, using metal detectors,
searching for any evidence of gas wells. T. 102. Once a well is located, the
operator will plug it in order “to mine through to the point for the petition
for modification.” T. 102. Given the different depths in the Pittsburgh Coal
Seam, one would expect that a hole could deviate up to 40 feet away, and
Williams believed that it was the operator’s responsibility to search that area.
T. 103-104.

According
to the DNF 2019, Williams testified that a reasonable search to locate a well would
require an operator or its contractors to go out and conduct a physical
examination of the area. T. 104. If evidence were found, metal detectors could
be used to find any casings or other evidence of well drilling, such as
couplers. T. 104. Subsurface excavations could also be performed with shovels,
Bobcats, bulldozers, and any other types of equipment to strip off the top soil
and dig down to locate a borehole. T. 104. Even if metal casings were not
found, wood conductors might be discovered on the surface. T. 104. Once a well
is located and plugged, the operator can mine through without incident. T. 104.

As
to the well at issue, it “was basically in a guy’s back yard,” located in the
leach bed for his sewage system. T. 104. Williams opined that the operator had
not exercised due diligence in opting not to do subsurface excavation. T. 105.

At
times there might be sand pipes sticking out of the ground, indicating the
presence of a well. T. 105. However, here there were none, probably due to the
construction of the home. T. 105. The area was graded over and there was no
evidence of the presence of a well due to excavations and landscaping over the
years. T. 105. There was no hole present and no pipe sticking out of the
ground. T. 105.

Given
that the petition for modification required the operator to locate and plug gas
wells, Williams opined that Section 75.1700 was violated because “in this
scenario, a gas well was not located or plugged and then mined through.” T.
107, 108.

On cross-examination, Williams testified that he had
been told that the mine operator had not dug with Bobcats or bulldozers. T.

110. Williams agreed that, consistent with the standard of the industry,
     Respondent’s contractors had dug down in the cited area to uncover any metal
     evidence. T. 110-111. Old mine maps might have wells separated by 700 to 1,000
     feet. T. 111.

MSHA has not promulgated any rules as to what would
constitute reasonable measures to be taken by operators to locate wells. T.
111-112. Williams was unaware of any definition of reasonable measures that
could be given to the regulated community. T. 112. He was aware that
Respondent’s contractors had dug with hand tools in the area of the “guy’s
yard” to search for metal fragments—but not with Bobcats, bulldozers, or high
lifts. T. 113. Williams agreed that the petition for modification did not
specifically set forth a requirement that wells be located; rather it dealt
with the plugging procedures to be followed once a well was discovered. GX-8; T.
115.

As to planning operations near a well believed to
exist, Williams opined that this would not apply to a situation where the
operator simply could not find the well. T. 116-118; GX-7, p. 7.

Williams was aware that of five reported wells
believed not to have existed, the operator had only intersected one. T. 124;
RX-E. He could not remember whether in the past he had stated that the
Respondent had taken reasonable measures to find the well in question. T. 124.

Of the approximately seven episodes characterized as
ignitions, Williams agreed that all but one were located in the headgate,
tailgate or development sections. T. 126-127. At 50,000 CFM, there would be
approximately ten times more ventilation delivered to the longwall surface at
Enlow as opposed to the continuous miner development section, which only had 5,000
CFM. T. 128-129.

Williams was not aware of any incident where Consol
had caused anyone to be injured because of intersecting a borehole or gas well.
T. 134. He couldn’t “say for sure” whether the operator’s contractor’s grid search
in the 100-foot zone area with metal detectors constituted a reasonable search.
T. 137. Williams testified that Consol usually did a “good job” in looking for gas
wells, and to the best of his knowledge 18 Karat was a reputable contractor. T.
138, 140.

Joseph
Bartolotto

At the time of hearing, Joseph Bartolotto had been
safety inspector at Enlow Fork Mine for the past 8 months. T. 143-144. He had
gone to technical school for computer-aided drafting. T. 144. He had started in
the coal industry in 2013 as a surveyor, moving into the dust department. T.

144. He had worked at Bailey Mine as a GMS contractor employee, working on the
     longwall, then as a dust technician. He had all his dust certifications, PA
     blasting cap, federal train-the-trainer card, West Virginia and Pennsylvania
     black hat. T. 144.

On direct examination, Baker testified that he had
accompanied Baker on the date the inspector had issued Citation No. 9079236. T.
144-145. They went to the longwall, met with the section boss, and traveled
onto the face. T. 146. They checked for gas immediately and found none. T. 146.
People on the section had also found none. T. 146. After inspecting the intersected
borehole, they decided upon a course of action to plug it and then continue
mining through. T. 147.

The well site was intersected at 12:10 and they were
on the scene prior to 2:30. T. 147. At 3:33 there was a verbal modification of
the K order and permission was given to plug the hole. T. 147; RX-D.

Reflective signs hanging down from shields gave
notice that the area was a gas well zone. T. 148. There was a sign reading “gas
well zone starts here” and then a sign on the other side reading “ends here.”
T. 148. The start of the zone was No. 62 Shield and the end of the zone was No.
80 Shield at the pluses of 107, plus 85 to 106. T. 149; RX-L. The gas well was
intersected at No. 73 Shield. T. 151.

Robert
Botroac

Botroac
worked as a section foreman at Consol. He had an associate’s degree in mining
and technology and had worked for Respondent since 2008, primarily as a
longwall and gate foreman. T. 153. He was section foreman when the borehole in
question was intersected. T. 154. Botroac testified that on September 6, 2018,
he had received information about a DNF well zone and had set the 100-foot zone
with signs wired to a shield. T. 155-157. In mining the 100-foot zone,
additional gas checks are taken. T. 157.

Robert J. Robinson

Since 2017, Robert J.
Robinson had worked as director of engineering for Consol mines. T. 162. He had
a bachelor’s of science in mining engineering. T. 162. He had worked in the
coal industry since 1976, had transferred to Bailey Mine in 1998 and had been
promoted to director of engineering for Respondent in 2017. [6] Dating back
to the late 1980’s he had been involved in conducting searches for gas wells
and plugging them according to the 101 (c) petition. T. 163-164.

On
direct examination, Robinson testified that some of the challenges presented to
Respondent in locating old gas wells included the fact that many of the wells
were drilled prior to 1940, using steam rigs. T. 164. These old wells were
almost exclusively drilled with cable tool rigs. T. 164. Wells, such as the one
at issue, were extremely difficult to find, because there was no permit
requirement or plat that went with the well. T. 164. The driller simply reached
an agreement with the landowner and started drilling, there being no record
made. T. 164-165. Wooden derricks were erected on the site. T. 165. The
equipment used—oil-and-gas driven steam engines—was small, as opposed to the large
well pads utilized in the Marcellus Shale industry. T. 165.

The
cable drill had a 12-inch very heavy drill bit, the drill being about 15 feet
long. T. 165. Typically, the wells would go 2,800 to 3,200 feet deep, depending
where the coal was at or where the gas zone was located. T. 166. If, however,
the drillers encountered an issue, they would simply skid the rig over 15 feet
and begin a new hole with no need for permits. T. 167. Over the years such
unpermitted skidded holes would be found and plugged. T. 167-168.

In
the 1970s and 1980s, plats provided good information as compared to previously
when wells were unpermitted with no drawing or records. [7] T. 168. In
the modern day, handheld GPS devices are used so that one can walk up to a latitude/longitude
location with the geographic coordinate value noted on the drilling permit and
get within 10 feet of a platted or permitted well. T. 168.

In
searching for unpermitted older wells, Consol uses farm line maps or producer
maps. Such maps were developed by past gas companies such as Carnegie
Manufacturers Heat and Light, Columbia, and Equitable Gas. T. 169. Gas company
employees would go out to farms, meet with the landowners, and mark farm line
maps with symbols showing the location of wells. T. 169. The problem with the
older Carnegie/Columbia maps was that they might depict the same gas well in
different locations. T. 170-171; RX-K. Furthermore, the range that the
company’s (Carnegie’s) symbol might cover could be up to 1,000 feet. T. 172.

The
petition for modification filed by Respondent for Enlow Fork Mine dealt with
the procedures, practices, and methods for plugging gas wells to be mined
through with a continuous miner or a longwall. T. 173. It did not specifically
address the questions of locating a borehole or gas well. T. 173.

Once
Consol has obtained maps and plotted them, it scans the hard copy images into
an autoCAD-type program, scales them, rotates them, and fits them to a farm tract
or to a quadrangle section. T. 174.

The
digital image can be overlayed on Respondent’s § 75.1200 mine drawing. T. 174.
A search map can be generated that will have the various gas company symbols
which, together with available aerial imaging, can show where a gas well might
be located. T. 175-176; RX-I. The mapping however is not 100% accurate. “Not
found wells” might never be found underground. T. 178. Exhibit RX-B was the
Enlow Fork approved oil and gas well cut-through plan, which was an addendum
that was used to spell out the procedure for the mine to follow when mining
through a gas well area. T. 178-179.

Robinson
outlined the measures taken by Consol to locate wells or boreholes on the
surface based on his past experiences. T. 179. All available mapping is
reviewed; historical photographs are examined; the best location to conduct a
field reconnaissance or foot search is selected; people are sent out to the
site and work under the supervision and direction of Matthew Ruckle, the
project engineer. T. 179, 227.

A
map may have five different companies’ symbols. T. 179. If one of the symbols
ends up a vertical cliff, there is good probability that there was no drilling
sitting there, so the area is narrowed down. T. 179-180. Aerial photography is
used. Topography is looked at; a bench is tried to be found. T. 180. Once an
area is zeroed in, there is always a metal detector search for cut nails, for
past drilling, and miscellaneous materials. T. 179-180. A lot of times the
material detected is old farm scrap and has nothing to do with a gas well. T.

180. If drilling material is discovered, the site is evaluated as to whether
     further excavation is warranted. T. 180. Depressions and sinkholes and ground
     features that don’t quite fit into the topography are noted. T. 180.

Exhibit
J depicted the area where Respondent’s project engineer and contractors
conducted their search for the well. T. 181. The type of search conducted for
the subject well was the type “normally” employed. T. 182. The operator had
already mined through three other areas that had shown wells believed not to
exist (DNFs) and were not ultimately found there. T. 182. Given the number of
duplicate wells on available farm line and producer maps, finding the actual
location of wells was difficult. T. 182.

In
the past, Consol had worked with the state of Pennsylvania and MSHA to get
plans approved in order to mine using a longwall and continuous miner above a
gas storage field. T. 182. Due to Consol’s success in locating 32 more wells
than the gas storage operator believed to have existed, Consol had been asked
to train individuals as to how to properly search for wells. T. 182-182.

Anytime
Consol is unable to locate a DNF, it shows a symbol to alert individuals to be
watchful. T. 184; RX-B.

Robinson
opined that Respondent was improperly cited for violating § 75.1700 in that the
operator had taken reasonable measures to locate the well, employing methods
routinely used for such searches. T. 185. This was not a situation where there
was a plat that showed the well location with a surveyed location, or, even
without a surveyed location, a plat that showed distances from two corners. A
failure to locate in such situations would be the result of unreasonable
measures. T. 185.

On
cross-examination, Robinson opined that a cable tool rig had been used in the
well at issue. T. 191. In the past, Respondent’s employees had utilized hard
copy farm line maps. T. 192. But when oil and gas came out with digital
mapping, farm line maps were digitized and Respondent refined the symbols
showing gas well locations. T. 192. The red symbol depicted a dry hole; the
green symbol was also a dry hole; and the blue symbol was a gas well. T. 193;
RX-I. A second look at the mapping had taken place in late 2017-early 2018
prior to Respondent starting the longwall panel. T. 193.

According
to the operator’s calculations the gas well was estimated to be located in the
area of No. 71 Shield. T. 197. It was actually intersected at No. 73 Shield. T.

198. The operator would not have needed to tear down the private property
     owner’s house to locate the well. T. 203. There was, however, a sewage sand
     mound or septic system where the well was eventually located. T. 203.

Robinson
had spoken with the private property owner, who had grown up in the area and
whose father had owned the neighboring farm. T. 207. She had no knowledge
whatsoever of a well in the area. T. 207.

Robert
Conner

Robert
Conner worked since 2006 as foreman for gas well locating for 18 Karat. T.
209-210. Over the years he had searched for approximately 1,000 wells and had
performed services for multiple companies, including Consol, CNX Gas, and
Murray Energy Corporation. T. 210.

On
direct examination, Connor testified that he had been contacted by Respondent
to search for the gas well at issue. T. 210-211. He reviewed a Carnegie Gas map
which showed a location that an earlier search company had found not to be
accurate. T. 211. Conner overlaid the old gas map on top of Google Earth. T.

213. He pulled it in as best he could with the old roads and property lines;
     then faded out the old map on top of Google Earth and got a search location
     that was submitted to Respondent. T. 213.

At the selected site, 18 Karat worked a grid with
searchers four feet apart, digging up any evidence that could be located. T.

214. On March 12, 2018, two searchers spent 10 hours searching, and found cable
     down by a fence. T. 213-215. They also found round nails and some modern nails
     with no rust. T. 213-215. On March 13, 2018, the same two people found part of
     a three way, which was described as “a T,” and round and modern nails. T. 215.
     On March 14, 2018, the same searchers again found round and modern nails. T.
215. The property owner said there was 10 feet of fill over where 18 Karat was
     looking for the well, located behind his house, going down next to where a
     fence was at near a pond. T. 216. Conner was uncertain how long the pond had
     been on the property. T. 216. On March 15, 2018, Conner continued to hand-search
     for the well, searching down into the swamp on the pond on the hollow side of
     the fence. T. 216-217. A few pieces of molten metal and right-handed cable were
     located at a depth of four feet in the hollow to the left of the pond in a
     wooden area. T. 217. Locating molten metal is relevant because it could be
     where past drillers dressed tools on old drilling rigs. T. 217. The March 16,
     2018 notes by 18 Karat indicate continued hand searching for well 2019, with a
     few pieces of molten metal found a few inches deep along a creek bank along
     with a few scattered nails in no pattern. T. 217. The lack of pattern was
     considered significant because in attempting to locate wells “there will be a
     pattern the way the rig sat in there, the derrick fell.” T. 218. No pattern of
     any kind was found. T. 218.

Metal
detectors were used because metal was important evidence in locating a well:
“you can lay out how that rig sat in there to give you direction of which way
the hole would be.” T. 218. Specifically, the metal that is relevant to where
the rig sat would be: 16, 18, and 20-inch long rig bolts; ¾ inch bolts with hex
heads; hex nuts and a couple of washers on them. T. 219. These items would be
about 6 feet apart and “pairs of four the way the rig laid in there for the
motor house to be bolted onto.” T. 219. Such pattern of residual evidence would
indicate the location of a well whereas scattered debris and molten metal and
nails would not be helpful. T. 219.

Exhibit
RX-J depicted the area searched by 18 Karat, with a yellow outline indicating
the area searched and a red outline to indicate the items found. T. 219. 18
Karat employees searched with metal detectors in the yellow outlined area and
dug in the area of the private property owner’s back yard, but found no indicia
of a well’s presence. T. 220.

Shovels
were used to do the digging. Shovel digging was a normal practice in attempting
to locate a well. T. 220. 18 Karat employees used shovels anywhere, including
woods and yards. T. 220. When, however, searching in a private individual’s
back yard, shovels were preferable because there are unmarked lines, including
gas lines, phone lines, and electronic lines, which must be approached with
care. T. 221. Shovels were “the common practice” for looking for a well. T.

221. Conner remembered 18 Karat employees searching in the third party’s yard.
     T. 221.

Of
the thousand or so wells that Conner had searched for, he had been unable to
locate approximately 300 of the older wells through field searches. T. 221-222.
Of these 300, possibly 9 wells had been intersected. T. 222. Some of such wells
had actually been dug for in the past with equipment but with no success. T.
222.

The decision to use heavy equipment is based upon
the “reasonable well evidence” uncovered by the initial hand search such as
fire pit, drilling cable (left-handed) and rig bolts. T. 223. However, during
18 Karat’s search there was nothing found to suggest that equipment should be
brought in. T. 223. Conner opined there was no evidence found that warranted
bringing in additional equipment. T. 223. 18 Karat could have gotten equipment
if it had requested such. T. 223.

On
cross-examination, Conner agreed that the large house and pond depicted on RX-J
would have required a lot of ground to be moved in the digging and construction
of such. T. 224. He also agreed that there was an area that had 10 feet of fill
that was between the pond and the house, included in the red zone of RX-J. T.
224.

Matthew
Ruckle

Matthew
Ruckle graduated in 2008 majoring in engineering. T. 226. He began working for
Respondent in May 2005 as a summer intern and started full time in January 2009
as a project engineer in such activities as air shaft installation. T. 226. He
was laid off for two years, during which time he worked for 18 Karat as a
project manager, estimating and managing jobs, surface jobs, and site
construction. He returned to Consol in March 2018 as a project engineer. He was
responsible for gas well searching and maintaining degas boreholes. T. 227.

On direct examination, Ruckle testified that he had
reviewed the various searches for gas wells associated with the E 30 Longwall. T.

228. Exhibit RX-I contained a drawing showing the E 30, the back end of the
     longwall panel, depicting two wells that had been located and three wells that
     were not located shown as DNFs. The borehole that was intersected and subject
     of the within citation was 2019. T. 228. At some point Ruckle decided that a
     more extensive search for the well should be conducted. T. 228-229. He reviewed
     all the search records of 2019 located in his office. T. 229; RX-C. This file
     included the search records from Burns Drilling and 18 Karat. T. 229. Burns
     Drilling had found some pipe and some nails but not much more. T. 230.

Respondent
did some research, looking at old producer maps. T. 230. It was felt that more
searching, a little further to the south, needed to be conducted. T. 230. 18
Karat was Respondent’s primary well searching company and was asked to go back
out to search for the well further to the south. T. 232.

Exhibit
RX-I depicted the location of well 2019 moved to the best estimated location
away from its originally estimated location. T. 231.

Ruckle reviewed all of Conner’s search reports and was
provided with a best estimated location with GPS coordinates. T. 234-235. No
actual evidence of a well, however, was uncovered. T. 239.

It
was normal to use metal detectors and shovels in searches. T. 236. If Conner
had requested heavy equipment, Ruckle would have approved the request. T. 236.

Exhibit
RX-E contained a notification letter sent to MSHA’s district manager by
Respondent’s mine engineer, stating that the E Longwall would be mining through
areas where there were five reported wells believed not to exist, including DNF
well 2019. T. 237. This notification was based upon search records provided by
Ruckle. T. 237. Ruckle did not believe any of the five wells existed based upon
the lack of evidence. T. 238.

The
procedures utilized by Respondent in attempting to locate the well were consistent
with procedures used by Respondent in the past. T. 238. In the past Ruckle had
gone out with MSHA personnel, including District Manager Riley, to attempt to
locate DNF wells and had been unsuccessful. T. 238-239.

On
cross-examination, Ruckle testified that he had not gone out to the search
location until after the well was intersected. T. 241. Despite an 18 Karat
search note dated March 14, 2018, indicating there was “10 foot of fill over
where the well should be,” Ruckle opined that the area could be accurately
excavated with a shovel. T. 242-244; RX-C.

On
redirect examination, Ruckle testified that 18 Karat notes from March 15, 2018,
indicated that the metal and a right-handed cable were located at 4-foot depth.
T. 244. Diggers would follow where the evidence led. T. 244.

Jonathan Tajc

Jonathan Tajc had a Bachelor
of Science degree from Penn State. T. 243. He had worked for Respondent as an
industrial engineer foreman, assistant mine foreman, and mine engineer. He had
also worked for the Commonwealth of Pennsylvania Bureau of Mine Safety as a
mining engineering specialist. T. 246. As a mine engineer, Tajc had experience
in plotting the location of gas wells. T. 246. His office maintained records
such as the letter contained in RX-E. T. 247.

CONTENTIONS
OF THE PARTIES

The
Secretary argues that Respondent violated 30 C.F.R. § 75.1700 when it failed to
take reasonable measures to locate and plug a gas well prior to mining through
the E 30 Longwall at Enlow Fork Mine. It argues that, given that Respondent had
markings on its mine maps indicating the potential existence of a DNF well in
the area where the gas well was ultimately intersected, the Respondent bears
the burden of demonstrating that it had taken reasonable measures to locate the
gas well. Specifically, Respondent’s contractors were negligent in failing to
further search the gas zone area and to conduct additional digging and
excavation with heavy equipment in the area.

Respondent
initially argues that the intersected borehole referred to on Consol maps as
“DNF 2019” was not, in fact, a gas well but rather an abandoned “dry hole” and,
as such, would not be subject to § 75.1700 provisions. [8] Assuming
the site in question was a gas well, Respondent argues that it had, in good
faith and with due diligence, followed its MSHA approved ventilation plan,
including its gas well cut-through plan which dealt with mining operation near
a well believed not to exist. Despite that it had failed to locate the gas well
before its intersection, Respondent had satisfied § 75.1700’s “reasonable
measures” mandate by reviewing old farm line and gas producer maps, available
photography, and by contracting with experienced gas well searchers.
Considering the lack of evidence uncovered in the suspected gas well area,
Respondent’s contractor(s) had not acted unreasonably in using only hand tools
and shovels for digging and declining to use heavy machinery in its search.

ANALYSIS

Issue:   Did
the Secretary carry its burden of proving that Respondent failed to take
reasonable measures to locate the cited gas well in violation of § 75.1700?

I.        The Secretary
bears the burden of proving Respondent’s violation of § 75.1700 oil and
gas wells.

It
is black letter Commission law that the Secretary has the burden of proof in
establishing each and every element of a citation. [9] See also
29 C.F.R. § 2700.63 (b). In his post hearing brief, the Secretary
attempts to relieve himself of this burden thusly: “because the Respondent had
all of the records including the mine maps pertaining to this gas well, (it)
bears the burden of demonstrating that it took reasonable measures to locate
the well.” SBI, p. 7. The Secretary cites no source or case cite for this bald
proposition. Furthermore, this Court has found no statutory or appellate case
law supporting Secretary’s argument for a shifted burden of persuasion as to
operators cited under § 75.1700 and declines to do so instantly. [10] The burden
remains with the Secretary to establish a breach of each and every element of
§ 75.1700, including whether Respondent failed to take reasonable measures
to locate the gas well sub judice .

II.      The test to
determine whether Respondent had violated § 75.1700 should be the
reasonably prudent operator standard.

As
noted intra , there is no statutory or case law directly on point as to
what constitutes reasonable measures regarding the location of wells under § 75.1700. [11] MSHA to
date has not promulgated any regulations or specific guidelines for operators
to follow in satisfying § 75.1700’s reasonable measures mandate. Given no
binding case law directly on point, this Court holds that the test for
determining compliance with § 75.1700’s requirements is a reasonably
prudent operator standard. Were the steps taken to locate the well, measures
which a reasonably prudent operator, familiar with the factual circumstances
surrounding the hazardous condition, including any facts peculiar to the mining
industry and considering the protective purpose of § 75.1700, would have
taken .

Thus,
this Court concludes that the critical question in determining a violation of
§ 75.1700 is not whether Respondent was ultimately successful in locating
the well— nor, indeed, whether Respondent could have done more to locate the
well . [12]
Rather the enquiry must focus on whether the actual measures taken by
Respondent were sufficiently reasonable, considering the totality of the
circumstances.

III.    The steps taken
by the Respondent to locate the gas well were reasonable measures so as to satisfy
§ 75.1700
requirements.

The
protective purpose of § 75.1700
is that miners should be shielded from the inherent hazards of inundation,
ignition, and explosion associated with the intersection of unlocated wells.
There are all too many abandoned gas and oil wells in Pennsylvania posing
hidden dangers to miners. [13]

However,
the language and protective purpose of § 75.1700 should not be interpreted
in such a way that any failure to locate a gas well penetrating a coal bed
operates as a per se violation of this mandatory safety standard. [14] Operators
should not be placed in a “catch-22” situation in which they are deemed not to
have taken reasonable measures, if they are unsuccessful in ascertaining a
particular well’s location.

In
his post hearing brief Secretary argues that “gas well DNF was…not the needle
in the haystack that Respondent attempts to portray.” SBII, p. 3. This Court
agrees that finding a needle in a haystack is not an apt metaphor for
describing an operator’s onus in locating a DNF in general nor this
Respondent/operator’s onus in particular. [15]
However, this Court does accept Respondent’s essential argument and testimony
in support thereof that DNF wells can be often quite difficult to locate and
that the failure to do so may not necessarily be grounded in the failure to
take reasonable measures. See inter alia Robinson testimony at T.
164-168.

At
hearing, Respondent’s witnesses described the various steps that Respondent had
taken in attempting to locate DNF wells, including DNF 2019. These steps were
succinctly summarized in the August 14, 2018 notification to the MSHA district
manager (RX-E). These measures including “field searching, gas well map
reviews, online database searching, aerial photograph searching, and API map
reviews.” RX-E.

At
hearing Robert Conner, foreman of gas well locating for 18 Karat, outlined the
measures taken in the onsite field search which included using metal detectors,
working a grid with searchers 4 feet apart, attempting to find evidence
indicative of past rigging, like rig bolts in a pattern, using shovels for
digging. T. 214-220, see also Robinson testimony regarding such.

Conner
had long experience in searching for gas wells and characterized the steps
taken by 18 Karat as standard in the mining industry. T. 111, 182, 220. The
Secretary’s witnesses, Baker and Williams, while honest and straight forward,
did not appear to have the length or depth of specific experience in gas well
searching possessed by Respondent’s witnesses, Robinson and Conner. Baker and
Williams offered no persuasive testimony establishing that Respondent had
somehow departed from the standard of care expected of those in the mining
industry searching for gas wells. [16]

At
hearing Respondent’s witnesses credibly described the problematic nature of old
farm line and gas producer maps. [17]
See inter alia Robinson testimony at T. 164-169. As noted supra ,
this testimony reasonably counters Secretary’s argument that the possession of
mine maps shifts the burden of proof (SBI, p. 7) or, for that matter,
necessarily points to a finding of violation.

At
hearing and in its arguments, Secretary further seeks to take the position that
if an operator searches close to an estimated location of a well and fails to
find such, it is derelict in its duty. See SBII, p. 4; see also
Baker testimony at T. 24 and Williams’ testimony at T. 108. This Court declines
to impose a “if you come close, you must find” standard for § 75.1700.

In
support of a § 75.1700 violation the Secretary has also argued that, given
notice of a 10 foot land fill in the area of the private citizen’s residence,
Respondent’s decisions to only use shovel tools and not to utilize heavy
machinery were unreasonable and further motivated by economic concerns. SBI, p.

8. This Court, however, found Conner’s explanations as to the look of patterned
   evidence at the digging site and the adequacy of hand shoveling to be arguably
   reasonable.

Further,
this Court finds that the existence of, extent of, and location of the alleged
10-foot land fill in this matter is problematic and should not be accorded
great probative or substantive weight. See also Respondent’s persuasive
arguments on this point at RBI, p. 18 and RBII, p. 5.

As
to possible economic considerations motivating Respondent not to bring in heavy
equipment, this Court is not naïve regarding human cupidity nor unaware that
unscrupulous mine operators in the past have placed “profits over people.”
However, there is nothing in the record to support the Secretary’s bald
assertion that Consol or its contractors were driven by monetary concerns in
their decision-making.

Conner’s
testimony was credible that he did not believe that evidence at the scene
warranted the bringing in of heavy machinery. T. 223. This Court further found
Conner to be credible in his assertion that he could have gotten heavy
machinery had he asked for it. T. 223. [18]
Arguably, as Respondent’s primary gas well searcher, 18 Karat would have little
to gain in failing to use needed equipment to locate gas wells whose
intersections could lead to such citations as within.

This
Court accepts that Respondent may have found the cited gas well—had Respondent
searched longer, further, and deeper in the gas well zone area and had it
chosen to use larger machinery. However, this Court nonetheless concludes that
the steps taken by Respondent and its contractors were sufficiently reasonable under
the circumstances, such that the within citation was not warranted.

Given
the above holding this Court does not find it necessary to go forward with a
full blown Mathies/Newtown analysis. Suffice it to say that, given the
particular facts surrounding this alleged violation, including the lack of
casing or methane found at the scene, the increased ventilation at the longwall
surface, the occurrence of the hazard against which the mandatory safety
standard was directed would have been unlikely.

ORDER

It
is the ORDER of this Court that Citation No. 9079236 is hereby VACATED
and DISMISSED .

/s/
John K. Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

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

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

James
P. McHugh, Esq., Hardy Pence, 10 Hale St., 4 th Floor, P.O. Box 2548,
Charleston, WV 25329 [email protected]

[1]
On August 16, 2019, this Court issued a Partial Decision Approving Settlement
that disposed of Citation/Order Nos. 9079299, 9079304, 9079305, 9079239, and
9079241.

[2] “T” refers
to the hearing transcript. “GX” refers to the Secretary’s exhibits and “RX”
refers to Respondent’s exhibits. “SBI” refers to the Secretary’s original post
hearing brief and “SBII” refers to his reply brief. “RBI” refers to
Respondent’s original post hearing brief and “RBII” refers to its reply brief.

[3] See
T. 13-14 for more detailed description of Baker’s mining experience and
certifications.

[4] DNF stands
for “did not find.” T. 23; GX-3.

[5] Despite
Baker’s response, this Court is persuaded that the inspector did, in general,
understand the steps in Mathies but was becoming frustrated by
operator’s counsel’s vigorous cross-examination.

[6] See
pp. 162-164 for more detailed description of Robinson’s past experience.

[7] Robinson
described “plats” as “basically, like, a property survey.” T. 168.

[8] Given the
within holding which is wholly dispositive, this contention need not be fully
addressed. The ALJ does observe that MSHA has not yet promulgated a definition
for “gas well.” In Sec’y. v Consol , 42 FMSHRC 118 (Jan. 30, 2020) (ALJ), this Court
addressed the question of whether the Secretary’s interpretation of § 75.1700
should be given controlling weight in light of Kisor v. Wilkie , 139 S.
Ct. 2400, 2411 (2019). The ALJ further notes that the distinction between an abandoned
dry hole and an old gas well site becomes increasingly more problematic when
passing time, decay, and/or property development destroys much of the
evidentiary indicia distinguishing such. Suffice it to say that the Secretary
had presented persuasive evidence and compelling arguments (s ee inter alia
SBII, pp 1-2) in support of finding DNF to be a “gas well.” If required to
resolve this issue, this Court would presently not be inclined to find that the
Secretary had acted unreasonably in treating the intersected site in question
as a gas well for § 75.1700 enforcement purposes.

[9] Such an
evidentiary burden dates back to even ancient times. For example, the Latin
maxim, “ Semper necessitas probandi incumbit ei qui agit .” (“The
necessity of proof always lies with the person who lays charges.”) See also
Luther’s defense at the Diet of Worms that those charging heresy bore the
burden of presenting specific scriptural proof of his theological errors.

[10] As
discussed infra , the ALJ finds neither the law nor applicable facts
justifying a shifted burden. The fact that Respondent had in its possession
mapping giving clues to the well’s possible location does not in itself warrant
a shifting of the burden . This Court was persuaded by Respondent’s
arguments/testimony that the DNF 2019 symbol was not an exact
longitude/latitude point, as Secretary implied, but rather a best estimate
spanning up to 1,000 square feet. See also RBI, pp 3-4.

[11] See
Secretary’s concession of such at SBI, p. 8.

[12] MSHA’s
improper application of § 75.1700 reasonable measures standard is
illustrated by Inspector Baker’s testimony at T. 104: “I don’t believe they
took every effort to locate it (the well) outside on this man’s
property.”

[13] Though the
following statistics have no bearing on the instant decision, it should be
noted that in a recent front-page article titled the “Looming Crisis,” the
Pittsburgh Post-Gazette reported that there were roughly 200,000 orphan wells
dotting Pennsylvania and abandoned by their owners over a century of drilling.
For most of the time period, fully sealing off expired wells was not required.
Very little money has been allocated for funding and plugging wells which, at
the present allocation, would take 17,500 years and cost $6.6 billion
(emphasis added). Laura Legere, “The Looming Crisis,” Pittsburgh Post-Gazette,
Sunday Edition, Vol. 93, No. 248, April 5, 2020.

[14] This is
not to say this Court is altogether adverse to the application of strict
liability and to the finding of per se violations of mandatory safety
standards in certain limited circumstances. This Court’s decision in The Doe
Run Co. v. Sec’y , 40 FMHSRC 1165 (July 20, 2018) (ALJ) is presently pending
before the Commission. In such, this Court proposed that whenever there is
an unexplained catastrophic roof collapse killing a miner, a per se
violation of the underlying safety standard should be found with no necessity
for a prudent operator analysis as intra.

[15] Perhaps a
more apt metaphor for describing the less daunting task facing mine operators
charged with locating abandoned wells is the old expression, “finding a black
cat in a coal cellar.”

[16] This
Court, of course, recognizes that certain industry practices—“custom and usage”—may
not necessarily operate as a defense to an
alleged safety standard violation. However, it may be
relevant to determining reasonableness.

[17] The
dangers posed to miners due to the absence of mapping or inaccurate mapping was
exemplified in the Quecreek disaster. See also Sec’y v. Musser Engineering,
Inc., and PBS Coals, Inc. , 32 FMSHRC 1257 (Oct. 2010).

[18] At hearing
Consol’s project engineer, Matthew Ruckle, also essentially corroborated such.
T. 236.