Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

MSHA cited Consol Pennsylvania Coal Company after an inspector found a damaged 480-volt power cable supplying a rib bolter at the Enlow Fork Mine. Judge John Kent Lewis found that damage to the outer jacket and inner insulation exposed bare conductor wires in a main travelway and violated the requirement that power cables be adequately insulated and fully protected. He held that Consol's ground-fault systems were redundant safety measures that did not defeat the significant and substantial designation, and the evidence showed those systems might not trip before a potentially fatal current reached a miner. He affirmed the citation as significant and substantial with moderate negligence and assessed the proposed $3,046 penalty.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(i); 30 C.F.R. § 75.517
• Outcome: The damaged-cable citation was affirmed as significant and substantial with moderate negligence, and $3,046 was assessed.
• Key point: A backup ground-fault system does not excuse an inadequately insulated power cable or remove the cable's electrical hazard from the S&S analysis.

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL

COMPANY
LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2020-0080

A.C.
No. 36-07416-511932

Mine:
Enlow Fork Mine

DECISION AND ORDER

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

Patrick
Dennison, Esq., Fisher and Phillips, LLP, Pittsburgh, Pennsylvania, for the
Respondent

Before: Judge Lewis

STATEMENT OF THE
CASE

This case arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (The
“Act” or “Mine Act”). A hearing was held via Zoom Government on Thursday,
August 19, 2021. [1]
The parties subsequently submitted briefs. The within Decision has been reached
after careful consideration of the evidence presented at hearing and arguments
advanced by the parties.

LAW AND
REGULATIONS

30 C.F.R. § 75.517
provides, in pertinent part:

Power
wires and cables [. . .] shall be insulated adequately and fully protected.

CREDIBILITY
ASSESSMENT

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 [2]

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

2. At all times
   relevant to these proceedings, Enlow Fork Mine (ID 36-07416) was a “mine” as
   defined in § 3(h) of the Mine Act, 30 U.S.C. § 802(h).

3. Operations of the
   Respondent at the mine at which the citation was issued are subject to the
   jurisdiction of the Mine Act.

4. This proceeding is
   subject to the jurisdiction of the Federal Mine Safety and Health Review
   Commission and its designated Administrative Law Judges pursuant to Sections
   105 and 113 of the Mine Act.

5. Enlow Fork Mine is
   owned by the Respondent.

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

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

8. A true copy of the
   citation at issue in this proceeding was served by a duly authorized
   representative of the Secretary of Labor upon an agent of Respondent at the
   date, time, and place stated in the citations, as required by the Act.

9. Exhibit “A”
   attached to the Secretary’s Petition in Docket No. PENN 2021-0080 contains an
   authentic copy of the citation at issue in this matter with all modifications
   or abatements, if any.

S. Br . at 1-2 (Nov. 8,
2021). [3]

SUMMARY OF
TESTIMONY

Witnesses

Robert Revi

At hearing, Robert
Revi testified on behalf of the Secretary. In addition to the certifications
Revi held during his employment in the coal industry and with MSHA, Revi earned
a Bachelor of Science degree from California University of Pennsylvania. Tr.
15-17. At the time of hearing, Revi had worked 9 and 1/2 years as an inspector
for MSHA. [4]
Tr. 15.

On February 4, 2020,
Revi, accompanied by his field office supervisor, Tom Bochna, went to Enlow
Fork Mine to conduct a 103(i) spot inspection. Tr. 18. During the inspection,
Revi was also accompanied by the operator’s safety escort, Matthew Roebuck. Tr.
19.

Revi issued
Citation No. 9079562 to Consol on the day of inspection. Tr. 19; Ex. S-1. The
citation was served to Roebuck. Tr. 19. In his citation, Revi noted that the
power cable to the Fletcher rib bolter was not being adequately protected from
damage. Tr. 22; Ex. S-1. The damaged cable was laying on the mine floor between
the 25-25.5 wall with damage to both the outer jacket and inner insulation of
the red and white leads. Tr. 22. The operator had violated mandatory safety
standard 75.517 45 times in two years at the subject mine. Tr. 22. After seeing
the rib bolter and the cable coming off the cable roll of the bolter, Revi
noticed damage to the cable. Tr. 22. After finding damage to the outer jacket
and inner insulation, Revi informed Roebuck that he would be issuing an S&S
citation. Tr. 23. Revi recalled that Roebuck had, in fact, gone over to trip
the power; however, he did not record such in his notes. Tr. 23. The damaged
portion of the cable was approximately 50 feet from the bolter. Tr. 24.

It appeared that a
piece of equipment had been running over the cable. Tr. 24. Revi noted damage
to the outer jacket and, upon further inspection, damage to the red and white
insulation, exposing bare energized copper conductors. Tr. 24-25. This damage
could be observed without touching or moving the cable. Tr. 25.

The damaged cable
was located along a travel way. Tr. 25. The area at issue was a haul road that
was still used as a primary entrance to get to the end of the track. Tr. 25.
The loading crew unloaded supplies to store in the cross cuts and along the rib
in the section. Tr. 25. Miners could walk right over the cable. Tr. 26. A
miner, in attempting to move the cable out of the way, might grab the energized
cable unaware of the “bad spot” in it. Tr. 26. The cable was a 4-gauge cable
that handled 480 volts. Tr. 26. The breakers were set to trip at 500 amps. Tr.
27.

Revi determined
that there was a reasonable likelihood of injury because of the location of the
cable in a high travel area and the number of people who might encounter it. Tr.
27-28. He determined that the number of people affected would be one. Tr. 28.
Revi testified that any miner using the rib bolter or handling the cable could
be injured. Tr. 28-29. Given the potential 480‑volt shock, he had originally
determined that any injury would be permanently disabling in nature. Tr. 27-28;
Ex. S-2. After further reflection, Revi decided that it was more reasonable to
expect that any injury sustained would be fatal in nature. Tr. 32; Ex. S-1.
Revi noted that 110 volts can kill most people and that the damaged cable
carried 480 volts. Tr. 32. Revi concluded that this was an S&S violation. Tr.

33. Exposure to bare copper conductor leads could result in death by
    electrocution. Tr. 34.

The inspector
referenced Respondent’s assessed violation history that was considered in
determining the penalty imposed. Tr. 36, Ex. S-4. Revi designated the level of
negligence as “Moderate” because the area in question was located in the track
entry, an area which was examined three times per shift by an agent of the
operator. Tr. 39. In making his determination, he considered circumstances that
may have contributed to the Respondent’s failure to have found the unsafe
condition. Tr. 39.

Revi did not
interact with any crew members the day he issued the citation. Nor did he
observe any equipment, including the Fletcher roof bolter, being operated in
the area. Tr. 41.

Revi found no
other violations, excluding the roof bolter cable. Tr. 42. He agreed that the
red leads – and not the white leads – were the only actual leads exposed. Tr.

50. He had concluded that the cable’s energy was on because there were lights illuminated
    on the bolter which was parked in a crosscut. Tr. 52.

Revi conceded that
he did not have an electrical background and had not used an electrical meter
to test the cable. Tr. 54-55. He agreed that the rib bolter and cable were
powered with an electrical system that contained ground fault protection. Tr.

55. He had not gone to the power center to check whether the breaker was
    kicked. Tr. 57-58. Revi agreed that the Respondent also had a ground monitoring
    system in place. Tr. 59. He observed, however, that the tripping mechanisms
    used by the operator did not always trip whenever damage was done to the cable.
    Tr. 59.

Revi did not know
when the cable was damaged nor whether any employee of the operator had been
aware of damage to the cable. Tr. 66. He conceded that he had not recorded in
his notes that the bolter lights were on. Tr. 77. He further agreed that the purpose
of the ground wire in the cable was to trip and de-energize the cable if there
was damage to the cable. Tr. 80.

Matthew Roebuck

On February 4,
2020, Roebuck accompanied Revi and Bochna during their safety inspection. Tr.
88-89. Roebuck kept a digital copy of his notes taken during the inspection. Tr.
90; Ex. R-1.

At the time of
hearing, Roebuck had worked for Consol for a little over 10 years. Tr. 86. He
started as an industrial engineer and had become a safety inspector shortly thereafter. [5] Tr. 87.

Revi called
Roebuck’s attention to the damaged cable. Tr. 97. Roebuck observed “a little
bit” of red and white in the cable. Tr. 97. He informed Revi that he was going
to the load center to knock the power off. Tr. 97. As he approached the power
center, he noticed that one bolter had power on and one did not. Tr. 99.
Because of some question as to what cable connected to what bolter, a mechanic,
called to the scene, elected to knock power on both bolters. Tr. 99-100.
Roebuck did not recall seeing any lights on either of the bolting machines near
the 25 wall. Tr. 101.

Roebuck disagreed
with Revi’s “Reasonably Likely” and “S&S” designations. Tr. 102. Roebuck
testified that an investigation revealed that power to the damaged cable’s
bolter had been knocked at the load center. Tr. 102. To return power to the
damaged cable, the breaker at the load center would need to be reset. Tr. 102.
Roebuck observed that abatement involved a mechanic splicing the damaged cable.
Tr. 106.

Travis Stout

Travis Stout had
worked for Consol for 27 years. Tr. 113. His jobs included: chief electrical foreman,
system master mechanic, long haul mechanic, general maintenance foreman, and
shift maintenance foreman. [6]
Tr. 114. As general maintenance foreman, Stout maintained rib bolters,
including bolter cables, on a day-to-day basis. Tr. 116. Stout reviewed the
reports of electrical examinations conducted at Enlow Fork. Tr. 119; Ex. R-2.

There were various
ground fault protections associated with the power center and the rib bolter. Tr.
122-23. These were: a sensitive ground fault on the individual circuit; a
ground fault on the main circuit; and a backup ground fault on the main
circuit. Tr. 123. A Bender ground fault relay was used at Enlow Fork in
February of 2020. Tr. 126; Ex. R-3.

If both the red
and white leads were damaged, the cable would not be expected to be energized.
Tr. 133-34.

The type of
machinery in question had a “tone monitor,” which monitored all three phases. Tr.

134. If two phases had damage, it would cause the ground wire to trip the
     breaker, not permitting reset. Tr. 134.

Stout agreed that
anybody at any time could take the bolter and energize it. [7] Tr. 136.

The trip rating on
the sensitive ground fault was set at 300 milliamps. Tr. 137. The setting was
adjustable and could be changed. Tr. 137. The breaker ground fault was probably
closer to 7.5 amps and was also adjustable. Tr. 137.

Stout expressed
surprise that a shock between 50-150 milliamps could cause fatal results. Tr.

138. He agreed that it was possible to have an exposed lead and still have
     power on the cable if it was not faulted out. Tr. 140.

CONTENTIONS OF THE
PARTIES

The
Secretary contends that the Respondent was moderately negligent in failing to
adequately insulate and maintain a power cable in direct violation of 30 C.F.R.
§ 75.517. The Secretary contends that—assuming continued normal mining
operation—there was a reasonable likelihood that the hazard contributed to by
the violation would result in fatal injury to one person and would constitute
an S&S violation. Finally, the Secretary argues that consideration of
Respondent’s sensitive ground fault system is irrelevant to an S&S inquiry.

The
Respondent contends that the Secretary failed to prove any negligence on behalf
of the operator, and that the cable in question was not in fact energized at
either the time it was damaged or the time it was inspected. Respondent argues
that exposure to the damaged cable would be unlikely. Further, if contact
occurred, Respondent contends that it would result in no lost workdays, in part
because the operator’s grounding systems protected miners from potential
electrical injury. Accordingly, Respondent contends that no S&S designation
is warranted.

BURDEN OF PROOF
AND STANDARD OF PROOF

The
burden of persuasion is upon the Secretary to prove the gravamen of a violation
by the preponderance of the evidence. Jim Walter Res. Inc., 28 FMSHRC
983, 992 (Dec. 2006). RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070
(Sept. 2000). Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987). This
includes every element of the citation. In re: Contests of Respirable Dust
Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 872, 878
(Aug. 2008).

Commission
precedents have held that “[t]he burden of showing something by a
‘preponderance of the evidence,’ the most common standard in the civil law,
simply requires the trier of fact ‘to believe that the existence of a fact is
more probable than its nonexistence.’” RAG Cumberland Res. Corp., 22
FMSHRC 1070 (Sept. 2000), (quoting Concrete Pipe & Prods of Cal., Inc.
v. Constr. Laborers Pension Trust for S. Cal., 8 U.S. 602, 622 (1993).

The
United States Supreme Court has held that “[b]efore any such burden can be
satisfied in the first instance, the factfinder must evaluate the raw evidence,
finding it to be sufficiently reliable and sufficiently probative to
demonstrate the truth of the asserted proposition with the requisite degree of
certainty.” Concrete Pipe & Products of California, Inc. v. Constr.
Laborers Pension Trust for S. California. 508 U.S. 602, 622 (1993). The
assessment of evidence is a process of weighing, rather than mere counting:
“[T]here is a distinction between civil and criminal cases in respect to the
degree or quantum of evidence necessary to justify the [trier of fact] in
finding their verdict. In civil cases their duty is to weigh the evidence
carefully, and to find for the party in whose favor it preponderates.” Lilienthal’s
Tobacco v. United States, 97 U.S. 237, 266 (1877). [8]

While
the Secretary must prove the elements of a citation by a preponderance of the
evidence, this Court’s factual determinations must be supported by substantial
evidence. [9]

As to
this and other controverted matters discussed intra , this Court has
credited the opinions of Revi, an experienced MSHA inspector. ( see also
Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1278-1279 (Dec. 1998) and Buck
Creek Coal, Inc. v. MSHA , 52 F. 3d 133, 135-136 (7 th Cir.) re
crediting opinions of experienced MSHA inspectors).

ANALYSIS

Issue I:      Did
the Secretary carry his burden of proving a violation of 30 C.F.R. § 75.517?

Issue II:     Given
that the Respondent had in place a sensitive ground fault system when Citation
No. 9079562 was issued, would this preclude a finding of S&S?

Issue III:    Was
the violation of 30 C.F.R. § 75.517 significant and substantial in nature?

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

Issue V:   Assuming
the citation constitutes an S&S violation, is the originally assessed
penalty of $3,046.00 appropriate?

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

I.               
The
Secretary carried his burden of proving a violation of 30 C.F.R. § 75.517.

Section 75.517
provides, in pertinent part, that power cables shall be insulated adequately
and fully protected. 30 C.F.R. § 75.517. I find that Respondent did not
adequately insulate or fully protect the cable supplying power to the rib
bolter, and therefore, violated 30 C.F.R. § 75.517.

At hearing, the
Secretary presented testimony from Inspector Robert Revi that he had observed a
cable lying on the floor of Enlow Fork Mine. Tr. 21-22. The cable, which
supplied power to a rib bolter, had damage to both the outer jacket and inner
insulation, exposing bare conductor wires. The damaged cable was approximately
50 feet away from the bolter, across from the refuge alternative, inby the
corner of the rib, in the No. 4 Entry. Tr. 22, 24, 94.

This Court found
Revi to be credible in his testimony, establishing that the power cable was
noticeably damaged, not adequately insulated, and not fully protected. [10]

Respondent at
hearing and in its brief questioned whether the cable was energized at the time
it was damaged or at the time the citation was issued. See inter alia
Tr. 54-57 and R. Br. 3-6. The Respondent, however, has presented no Commission
case law indicating that the underlying violation of this mandatory safety
standard requires proof of cable energization. [11]

This Court finds
that the Secretary carried his burden of proving a violation of 30 C.F.R. §
75.517 based, inter alia , upon the credible testimony of Inspector Revi.
See also S. Br. 5.

II.             
Respondent’s
ground fault system in place when Citation No. 9079562 was issued would not, as
a matter of fact or of law, preclude a finding of S&S.

At hearing and in
its post-hearing brief, Respondent advanced various arguments as to why its
sensitive ground fault system would have precluded the reasonable likelihood of
serious injury or death and, accordingly, would have warranted against a
finding of S&S. See, inter alia, R. Br. 13-14, 17-19.

As both a matter
of fact and law, this Court rejects Respondent’s arguments.

At hearing,
Inspector Revi gave undisputed testimony that the 480-volt power cable at issue
carried a current of 500 amps. Tr. 26-28. Based upon his training and
experience, Revi opined that electrocution could occur with a current as low as
15 milliamps. Tr. 32. Respondent’s witness, Travis Scott, testified that the
three different fault systems were normally set at 300-500 milliamps, but with
an adjustable setting. Tr. 123, 137-38. On cross-examination, Stout expressed
surprise that a current between 50-150 milliamps could cause fatal results. Tr.

138. He further conceded that the sensitive ground fault system might not trip
     even if damage were done to the cable. Tr. 139-40.

At hearing, this
Court did not allow admission of an OSHA document (Secretary’s Ex. S‑3),
outlining the effects of electric currents on the human body. Tr. 30-32. [12] This Court
did permit Inspector Revi, based upon his own experience, to testify as to the
milliamps necessary to cause possible fatal injury. Tr. 30-32. In his hearing
brief, the Secretary requested that this Court take judicial notice of the
exhibit as it was a public record. See S. Br. 10.

Rule 201 of the
Federal Rules of Evidence provides, in pertinent part, that the Court may
judicially notice a fact that is not subject to reasonable dispute because it
can be accurately and reasonably determined from sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201. The Court may take judicial notice
at any stage of the proceeding on its own or if a party requests it. Union
Oil Co. of CA , 11 FMSHRC 289, 300 n.8 (Mar. 1989) (stating that official
notice may be taken of the existence or truth of a fact or other extra-record
information that is not the subject of testimony but is commonly known, or can
safely be assumed, to be true).

After careful
consideration, this Court takes judicial notice of the fact that a current
carrying 50-150 milliamps can cause—as described in Ex. S-3/P-3—"extreme
pain, respiratory distress, severe muscular contraction, and possible death.” To
the extent that Respondent has challenged Revi’s opinions on the basis of his
lack of advanced electrical knowledge ( see, e.g. , R. Br. 3), this Court
finds that the foregoing judicially noticed fact essentially corroborates
Revi’s testimony regarding the potentially fatal nature of the power cable’s
current, successfully rebuts respondent’s arguments otherwise, and supports the
Secretary’s S&S determination.

Given that the
Respondent’s own witness testified that the sensitive ground fault system was
set to trip at 300-500 milliamps—at least double the amount that could cause
serious injury or death—such sensitive ground fault system measures, as a
matter of fact, would not have protected miners from a potentially fatal
electrical shock. Tr. 137; see also S. Br. 11.

As trier-of-law,
this Court further agrees with the Secretary’s argument that Respondent’s sensitive
ground fault system should be treated as a redundant safety measure and should
not be taken into account in reaching an S&S determination. See S. Br.
11-12.

There is a long
line of Commission and Circuit Court cases holding that redundant safety
measures are not relevant to the S&S inquiry. The Commission has recently
stated that, “‘[b]ecause redundant safety measures have nothing to do with the
violation, they are irrelevant to the significant and substantial inquiry.’” Consol
PA Coal Co. , 43 FMSHRC 145, 148 (Apr. 2021) (citing Cumberland Coal
Res., L.P. v. FMSHRC , 717 F.3d 1020, 1029 (D.C. Cir. 2013) (noting that consideration
of redundant safety measures is inconsistent with the language of § 104(d)(1)
of the Mine Act)); see also Sec’y of Labor v. Consolidation Coal Co . , 895 F.3d 113,
118 (D.C. Cir. 2018); ICG Illinois, LLC , 38 FMSHRC 2473, 2481 (Oct. 2016);
Black Beauty Coal Co. , 38 FMSHRC 1307, 1312-13 (June 2016); Knox Creek Coal Co. v. Sec’y of Labor , 811 F.3d 148
(4th Cir. 2016), aff’g 36 FMSHRC 1128 (May 2014); Brody Mining, LLC , 37 FMSHRC 1687, 1691 (Aug. 2015) ;
Consolidation Coal Co. , 35 FMSHRC 2326,
2330 (Aug. 2013); Big Ridge, Inc. , 35 FMSHRC 1525, 1529 (June 2013);
Buck Creek Coal Co. v. FMSHRC , 52 F.3d 133, 136
(7th Cir. 1995); S. Br. 11.

In determining
whether the subject violation was S&S in nature, this Court refuses to set
aside this corpus of Commission jurisprudence so as to make an exception to
such when it comes to evaluating Respondent’s backup protections for damaged
power cables in the context of an S&S determination.

If there is one
lesson that the history of American mining has taught, it is that operators’ fail-safe
systems often fail. Whether because of degradation due to normal continuing
operations, “Acts of God,” human error, mechanical defects, or, in the most
bitter of cases, intentional disablement, secondary safety measures may not
protect miners from harm. It must be assumed that under continuing operations,
the hazard arising out of the unsafe condition will occur. To presume otherwise
can only result in real danger to miners.

If
Respondent’s argument is taken to its logical conclusion, the existence of
alleged foolproof backup safety systems would always preclude a finding of
likelihood at Newtown ’s second step, necessarily vitiating the
protective intent of the mandatory safeguard at issue. If operators begin to
assume that backup ground fault safety measures will preclude S&S findings
and their inspectors begin assuming such measures will always protect miners
from electrical hazards associated with damaged wiring and cables, there is a
real peril that operators and their agents might become less vigilant or, in
the worst scenario, lackadaisical in ensuring 30 C.F.R § 75.517 safeguards
are adhered to.

This Court also
takes note of Respondent’s argument that its sensitive ground fault protection
settings are the lowest in the country and that it should be credited for
reducing the likelihood of electrical hazards and encouraged to enhance miners’
safety. [13]
R. Br. 17-18. Respondent’s safety initiatives are commendable. However,
protection of miners’ lives should be sufficient motivation for the
installation of additional electrical hazard protections. There is something
jarring about Respondent’s request for praise for doing the right thing. [14] This Court
specifically holds that such efforts do not warrant a finding of non-S&S.

III.           
The
violation of 30 C.F.R. § 75.517 was significant and substantial in nature.

In Mathies Coal
Co. , 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission set forth a four-step
analysis for determining whether a violation was S&S in nature.

Under the Mathies
test, the Secretary must prove:

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

6 FMSHRC 1, 3–4
(Jan. 1984).

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

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

(2) based upon the
particular facts surrounding the violation, there exists a reasonable
likelihood of the occurrence of the hazard against which the mandatory safety
standard is directed;

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

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

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

The Commission, in
Newt own , held that the proper focus of the second step in Mathies
was the likelihood of the occurrence of the hazard the cited standard is
designed to prevent. Newtown , 39 FMSHRC at 2037 n.8. The majority
further emphasized that it was essential for the judge to adequately define the
particular hazard to which the violation allegedly contributed. Id. at
2038. The starting point for determining the hazard should be the actual cited
section. Id.

For the following
reasons, this Court finds that the Secretary has established that all four
prongs of Mathies/Newtown have been met, and therefore Citation No.
9079562 was properly designated as S&S.

A.     A violation of a mandatory
safety standard occurred.

The facts and
discussion supra establish a violation of 30 C.F.R. § 75.517, which is a
mandatory safety standard.

B.     There was a reasonable
likelihood of the occurrence of the hazard.

The Secretary need
not prove a reasonable likelihood that the violation itself will cause injury,
but rather whether there is a reasonable likelihood that the hazard contributed
to by the violation will cause an injury. Musser Engineering, Inc. 32
FMSHRC 1257, 1280-1281 (Oct. 2010).

In the case sub
judice , the discrete safety hazard created is electrocution due to intentional
or non-intentional contact with the cited cable. The particular facts
surrounding the violation created a reasonable likelihood of the occurrence of
the hazard against which 30 C.F.R. § 75.517 was directed. These particular
facts include the cable’s damaged condition, its location in a main travel way,
and the frequent usage of the rib bolter and power cable.

As argued by the
Secretary in his brief, even assuming damage only to the outer jacket of a
cable, a violation of this standard may warrant an S&S designation. See
Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1287 (Dec. 1998) (affirming
an ALJ’s finding that “[w]hen the jacket is ruptured, the cable is not
insulated as designed.”); U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574
(July 1984) (recognizing that a gash in the outer jacket of a trailing cable
significantly weakens the protection afforded by inner insulation); Spartan
Mining Co ., 30 FMSHRC 699, 707–08 (Aug. 2008) (finding that an S&S
designation was appropriate where a trailing cable was damaged, but the outer
jacket did not appear to be broken).

Additionally, cables
will likely sustain further wear and deterioration during continued normal
mining operations. [15]
Webster Cty. Coal, LLC , 31 FMSHRC 219, 235 (Feb. 2009) (ALJ); see
also S. Br. 7-8; U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574 (July
1984) (recognizing that a cut in the outer jacket of a cable constituted an
S&S violation in part because of the “harsh environment of a coal mine.”). Here,
there was evidence of exposed bare copper, further supporting the Secretary’s
S&S finding.

The damaged cable
was located near the No. 4 Entry, the main travel way used to access the
section and the mining face. Tr. 25-26. Individuals walking down the No. 4
Entry might pick up the cable or step on it, sustaining electrical shock. Tr.
26.

The Fletcher rib
bolter was readily available for use and its supporting power cable was also
readily available. At hearing, Stout noted that, given the great number of
cables laying about, it was difficult to determine which cable connected to a
particular machine, further increasing the chances that the damaged cable might
be picked up in error. Tr. 29, 99.

In view of the
foregoing, this Court finds that the Secretary presented sufficient evidence to
meet the second step of Mathies and Newtown .

C.     Based upon the
particular facts surrounding the violation, the occurrence of the hazard—electrocution
due to intentional or non-intentional contact with the damaged cable—would be reasonably
likely to result in an injury that would be reasonably likely to be serious,
and indeed, fatal .

Considering the
facts and discussion supra , intentional or non-intentional contact with
a damaged 480-volt cable, carrying a 300-milliamp current, would be reasonably
likely to cause electrocution and injuries such as electrical shock, burns, or death.
Accordingly, the third and fourth steps of Mathies and Newtown
are also met.

Given the evidence
presented and the reasonable inferences flowing from such, the inspector
reasonably concluded that it was reasonably likely that an individual in the
entry area would, intentionally or unintentionally, suffer electrocution due to
contact with the damaged cable. The inspector also reasonably concluded that
the expected injury would affect one person and that, as discussed supra ,
the resulting injury would be fatal.

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

According to 29
C.F.R. § 103.3(d), negligence is considered moderate when “the operator knew or
should have known of the violative condition or practice, but there are
mitigating circumstances.” 30 C.F.R. § 100.3, Table X. In Sec’y of Labor v.
Brody Mining, LLC., 37 FMSHRC 1687, at 1701 (Aug. 2015), the Commission
affirmed that, in making a negligence determination, Commission judges are not
required to apply the definitions of Part 100, may evaluate negligence from the
starting point of a traditional negligence analysis, are not limited to an evaluation
of allegedly mitigating circumstances, and can consider “the totality of the
circumstances holistically.”

Considering that
the area where the cable was located was highly traveled and subject to
examination by an agent of the operator three times per shift, that the damage
was readily observable by Revi, and that the damage was probably caused by
machinery running over the cable, it is reasonable to conclude that the
operator or his agents should have known of the violative condition.

Revi found a mitigating
circumstance in that he could not place an agent of the operator at the cable
at the time it was damaged. Tr. 27. Considering the totality of the
circumstances holistically, including Respondent’s contention that it had no
knowledge of the damaged cable, this Court finds moderate negligence to be an
appropriate designation of Respondent’s failure to adhere to § 75.517
requirements.

V.        The
originally assessed penalty of $3,046.00 for the violation is appropriate.

When undersigned
first joined the Commission and reviewed the pertinent statutory and case law
regarding penalty assessments, I concluded that the pathway to determining a
proper penalty amount was short, simple, and straightforward: conduct a de novo
review; consider 110(i) criteria; explain any substantial deviation from the
Secretary’s proposed amount; reach an independent assessment. In the fullness
of time, I learned that the path could often be much more lengthy, arduous, and
convoluted. [16]

Despite the
foregoing, this Court perceives the pathway to an appropriate penalty
assessment in this matter to be clear and unobstructed. [17]

Section 110(i) of
the Mine Act delegates to the Commission and its judges “authority to assess
all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). In assessing civil
monetary penalties, an ALJ shall consider the six statutory penalty criteria:

[T]he operator’s history of
previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of

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

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

In Thunder
Basin Coal Co. , 19 FMSHRC 1495, 1503 (Sept. 1997), the Commission held that
all of the statutory criteria in § 110(i) should be considered in the court’s de
novo penalty assessment, but not necessarily assigned equal weight. In Musser
Engineering, Inc., 32 FMSHRC at 1289, the Commission held that, generally
speaking, the magnitude of the gravity of the violation and the degree of
operator negligence are important factors, especially for more serious
violations for which substantial penalties may be imposed. Here, the gravity of
the violation as to injury was designated as fatal.

The Secretary has
proposed a penalty of $3,046.00 for the violation cited in Citation No. 9079562.
I have considered and applied the six penalty criteria found in § 110(i) of the
Act. Considering
all the circumstances, the Secretary’s original proposed penalty assessment
appears appropriate.

The mine and its
controlling entity are considered large in size under 30 C.F.R. § 100.3. The parties
stipulated that payment of the proposed total penalty would not affect
Respondent’s ability to continue in business. Jt. Stip. 6. The history of
assessed violations, admitted into evidence at Ex. S-4, showed 26 violations of
this standard by this operator in the 15-month period prior to issuance of this
citation. See also Tr. 36; Ex. S-1.

I have addressed
negligence and gravity in the discussion above. This Court notes that much of
Respondent’s argument for a reduced penalty rested upon a modification of the
gravity finding from “reasonably likely” to “unlikely,” and a change of
negligence from “Moderate” to “None.” For reasons already discussed supra ,
this Court rejects such suggested modifications. Finally, while accepting that
Respondent acted in good faith in abating the dangerous condition, this Court
accords more weight to the gravity of the violation and the reasonable
likelihood of fatal injury posed by the electrical hazard in determining an
appropriate penalty.

Based on the
foregoing, this Court finds that a penalty of $3,046.00 is appropriate.

ORDER

The Respondent,
Consol Pennsylvania Coal Company, is ORDERED to pay the Secretary of
Labor the sum of $3,046.00 within 30 days of this order. [18]

/s/
John Kent Lewis

John Kent Lewis

Administrative Law
Judge

Distribution:

Ryan M. Kooi,
Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1835 Market
Street, Mailstop SOL/22, Philadelphia, PA 19103-2968; [email protected]

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

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

Attachment: Secretary’s Exhibit P-3

[1]
This docket originally included six citations. Prior to hearing, the parties
settled Citation Nos. 9200923, 9200927, 9203371, 9078965, and 7033984. A
Decision Approving Partial Settlement was issued.

[2] At hearing,
it was agreed that the parties would submit joint stipulations in their
post-hearing briefs. Tr. 7-8. Specifically, the joint stipulations were
submitted as part of the Secretary’s post-hearing brief.

[3]
Hereafter, the joint stipulations, transcript, the Secretary’s exhibits,
Respondent’s exhibits, the Secretary’s post-hearing brief, and Respondent’s
post-hearing brief are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S-#,” “Ex. R-#,”
“S. Br.,” and “R. Br.,” respectively.

[4]
See Tr. 15-17 for a detailed description of Revi’s mining experience and
specialized certifications.

[5]
See Tr. 86-87 for a detailed description of Roebuck’s mining experience and
specialized certifications.

[6] See Tr.
114-16 for a detailed description of Stout’s mining experience and specialized
certifications.

[7]
On redirect, Stout testified that if the ground fault was reset without
correcting the condition that caused the fault in the first place, the breaker
would trip out and the cables would be de-energized. Tr. 142.

[8] “What is the
most acceptable meaning of the phrase, proof by a preponderance, or greater
weight, of the evidence? Certainly, the phrase does not mean simple volume of
evidence or number of witnesses. One definition is that evidence
preponderates when it is more convincing to the trier than the opposing
evidence. This is a simple commonsense explanation which will be understood
by jurors and could hardly be misleading in the ordinary case.” 2 McCormick on
Evid. § 339 (7 th Ed.). Indeed, the notion of justice being an
assessment by weighing has ancient roots, extending at least as far back as the
Iliad’ s Book XXII: “Then, at last, as they were nearing the fountains
for the fourth time, the father of all balanced his golden scales and placed a
doom in each of them, one for Achilles and the other for Hektor.” Homer, The
Iliad, Book XXII (Samuel Butler trans., [Publisher] [ed.]) (1898).

[9]
When reviewing the finding of fact by a lower court, the
Commission will decline to disturb the determination if it is supported by
substantial evidence. Wolf Run Mining Co., 32 FMSHRC 1669, 1687
(Dec. 2010); U.S. Steel Mining Co., 8 FMSHRC 314, 319 (Mar. 1986). This
test of factual sufficiency has been a part of Commission jurisprudence since its
inception, required by the plain text of the Mine Act itself. 30 U.S.C. §
823(d)(s)(A)(ii)(I). Substantial evidence has been described by the Commission
as “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)).

[10] In assessing
the credibility of witnesses, this Court, as trier of fact, found Revi to be a
forthright and honest individual. This Court specifically rejects Respondent’s
contention that Revi’s testimony was unreliable and inconsistent; see also
R. Br. 12. Indeed, the testimony of Travis Stout, Respondent’s witness, that he
was shocked to hear that a current of 50-150 milliamps might cause fatal
results, raised much more doubt in this Court’s mind as to veracity. Tr. 138.

[11] While
this Court does not find that the energization or de-energization of the cable is
relevant to the existence of a violation, I am aware that the status of its
energization—along with other factors—may affect the likelihood of exposure to
a shock hazard, as stated in a recent Commission decision. Consol PA Coal
Co. , 44 FMSHRC ___, slip op. at 8, No. PENN 2019-0008 (Feb. 10, 2022).

[12]
This exhibit is attached hereto and has its original marking of petitioner’s
“Ex. P-3.” As discussed within, Revi opined that 15 milliamps could be a
killing current. According to this OSHA document, a current of 6-30 milliamps
can cause painful shock, loss of muscular control, and a freezing current in
which an individual cannot let go. This document further indicates that a
current of 50-150 milliamps can cause extreme pain, respiratory distress,
severe muscular contractions, and possible death. One amp equals 1000 milliamps,
or milliamperes. Ex. S-3.

[13]
As discussed intra , Consol’s settings still are not set low enough to
protect against serious injury or death.

[14]
“[T]he first priority and concern of all in the coal [. . .] industry must be
the health and safety of its most precious resource – the miner.” 30 U.S.C. §
801 (2)(a).

[15]
Under the Commission’s Mathies test, it is the contribution of the
violation at issue to the cause and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Co. , 6 FMSHRC 1834, 1836 (Aug. 1984).
When evaluating that contribution, it is assumed that normal mining operations
will continue. See U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574
(July 1984); see also U.S. Steel Mining Co. , 7 FMSHRC 1125, 1130 (Aug.
1985). An S&S designation must be based on the facts existing at the time
of issuance and assuming continued normal mining operations, absent any
assumption of abatement or inference that the violative condition will cease. U.S.
Steel Mining , 6 FMSHRC at 1574; Gatliff Coal Co. , 14 FMSHRC 1982,
1986 (Dec. 1992).

[16] My appellate
odyssey following a proposed American Coal Company penalty was an object lesson
on point. See Sec’y of Labor v. Am. Coal Co. , 35 FMSHRC 3077 (Sept.
2013) (ALJ); Commission Remand , 28 FMSHRC 1987 (Aug. 2016); Decision
on Remand , 38 FMSHRC 2612 (Oct. 2016); Commission Split Decision Affirming
ALJ , 40 FMSHRC 1011; see also American
Coal Co. v. FMSHRC , 933 F.3d 723, 728
(D.C. Cir. 2019) , affirming ALJ decisions.

[17] But, see
Stephen Crane’s “The Wayfarer”:

The
Wayfarer,

Perceiving
the pathway to truth,

Was
struck with astonishment.

It
was thickly grown with weeds.

“Ha,”
he said,

“I
see that none has passed here

In
a long time.”

Later
he saw that each weed

Was
a singular knife.

“Well,”
he mumbled at last,

“Doubtless
there are other roads.”

[18]
Please pay penalties electronically at Pay.Gov, a service of the U.S.
Department of the Treasury, at https://www.pay.gov/public/form/start/67564508.
Alternatively, send payment (check or money order) to: U.S. Department of
Treasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO
63179-0390. Please include Docket and A.C. Numbers.