Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

CONSOL Pennsylvania Coal Company operates the Enlow Fork underground coal mine in Pennsylvania. The company conceded that four longwall shields were missing keeper pins, but Judge Jacqueline R. Bulluck found that the Secretary did not prove the missing pins were reasonably likely to let breakaway-pin fragments become projectiles at the slower-moving gate shields. She therefore removed the significant and substantial designation while retaining moderate negligence. She also affirmed a citation for failing to plot accurately a drill hole that the mine intersected, holding that a gas well fits the broad meaning of a drill hole and that a best estimate does not satisfy the mapping rule's strict accuracy requirement. Because the company had made diligent but unsuccessful efforts to locate the old well beneath a golf course, she reduced negligence for the mapping violation from low to none. She assessed $275 for the keeper-pin violation and $100 for the mapping violation, for a total penalty of $375.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 75.1200, 75.1200-1(d), 75.1200(h), 75.1200(k), 75.1700, and 75.1725(a); 30 U.S.C. §§ 811(c), 814(d)(1), 815(d), and 820(i)
• Outcome: Both citations were affirmed as modified, the S&S designation was removed from the keeper-pin citation, mapping negligence was reduced to none, and $375 was assessed.
• Key point: Mine maps must be accurate even when an operator makes diligent efforts and plots an old well at its best estimated location.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

SECRETAR Y O F LABOR                                   :                 CIVIL
PENALTY PROCEEDING

MIN E SAFET Y AN D
HEALTH                      :

ADMINISTRATIO N
(MSHA),                         :                 Docket No. PENN 2021-0046

Petitioner,                                     :                 A.C.
No. 36-07416-527800

:

:

:

v.                                                   :

:

:

:

CONSOL PENNSYLVANIA COAL                   :

COMPANY, LLC,                                                :

Respondent                                               :                 Mine:
Enlow Fork Mine

:

DECISION

Appearances:              Ryan
Kooi, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;

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

Before:                        Judge Bulluck

This case is
before me upon a Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health
Administration (“MSHA”), against Consol Pennsylvania Coal Company, LLC
(“Consol”), pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary seeks a civil penalty
in the amount of $905.00 for two alleged violations of his mandatory safety
standards.

A remote hearing
was conducted over Zoom. The following issues are before me: (1) whether Consol’s
violation of 30 C.F.R. § 75.1725(a) was attributable to the level of gravity
alleged; (2) whether Consol violated 30 C.F.R. § 75.1200-1(d); and (3) the
appropriate penalties for the violations. The parties’ Post-hearing Briefs and
Consol’s Reply Brief are of record.

For the reasons
set forth below, I AFFIRM Citation No. 9204073, as modified, and
Citation No. 9204074, as modified, and assess penalties against Respondent.

I.               
Joint
Stipulations

The parties have
stipulated as follows:

1. Respondent is an
   operator, as defined in section 3(d) of the Mine Act, at the mine where the
   citations were issued.

2. Enlow Fork Mine is
   a mine, as defined in section 3(h) of the Mine Act.

3. The operations of
   Respondent at Enlow Fork 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 Judge, pursuant to sections
   105 and 113 of the Mine Act.

5. Enlow Fork Mine is
   owned by Respondent.

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

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

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

9. Exhibit A,
   attached to the Secretary’s Petition in this docket, contains authentic copies
   of the citations at issue in this matter.

10. With regard to
    Citation No. 9204073, the parties agree to the fact of violation of 30 C.F.R. §
    75.1725(a), when the horizontal keeper pins in shields 2, 269, 270, and 271
    were not in place.

Tr. I 11-12,
126-27.

II.            
Factual
Background

Consol owns and operates the Enlow
Fork Mine (“Enlow Fork”), an underground coal mine in Washington County,
Pennsylvania. Jt. Stips. 1, 5. As part of its efforts to comply with the
Secretary’s mine mapping requirements, Consol contracts with 18 Karat,
Incorporated (“18 Karat”), to conduct surface searches for abandoned
underground wells that are within 500 feet of active mining. Tr. I 173; Tr. II
53-54, 58-59. 18 Karat utilizes largely inaccurate, hand-drawn oil and gas
producer maps and farm-line maps, pre-dating permit requirements and modern GPS
technology, depicting wells drilled over 80 to 100 years ago in relation to
landmarks that may no longer exist. Tr. I 182; Tr. II 54-57; Ex. R –7. Guided by the old
maps, 18 Karat uses metal detectors to search for casings and pieces of exposed
pipe above ground. Tr. I 173, 286; Tr. II 53-57. Once a well is found, it is
surveyed and added to the mine map by a draftsman and, before Consol is
permitted to mine through the well, it must plug it according to MSHA-approved
specifications. Tr. I 165, 176, 182; Tr. II 53-54, 109, 131. Oftentimes,
because landmarks and surface features have disappeared or been altered,
abandoned mines can be difficult, if not impossible, to find; when an alleged
“search well” cannot be located, it is designated on the old maps and Consol’s
mine map by “DNF” (“Did Not Find”) and a number placed over a square symbol. Tr.
I 32; Tr. II 56-57, 63, 84; Exs. R – 8, R –9.

On
November 18, 2020, at 3:30 a.m., Consol cut through an alleged uncharted gas
well, causing the operator to shut down longwall operations and call in a
report to MSHA. Tr. I 26-27, 74. MSHA inspector and ventilation specialist
Walter Young traveled to Enlow Fork in response to the report, and examined the
record books and a mine map showing gas wells in the vicinity of Consol’s
active mining on the E-32 longwall section. Tr. I 19, 27, 30; Ex. P–3 at 18 . The surface area
above the intersected drill hole had been converted into a golf course, which
accounts for 18 Karat’s failure to locate it despite due diligence, and
Consol’s best estimate placement of it on its official mine map. Tr. II 84; Exs.
R –7
at 11-12, R –10.

Young
proceeded underground with Consol’s safety supervisor Frank O’Brien. Tr. I 33;
Ex. P–3 at 2. At 8:12 a.m., while walking the face with O’Brien and longwall
coordinator Justin Higman, Young noticed that a small horizontal keeper pin
(“keeper pin”) was missing from the clevis of the number 2 headgate shield. Tr.
I 59-60, 75. The inspection team continued down the face, Higman went ahead of
Young and O’Brien to the tailgate and, when the pair caught up with Higman,
Young observed a rock strategically placed on each otherwise “spotless” toe of
tailgate shields 269, 270, and 271, where keeper pins should have been located.
Tr. I 60-61, 75, 123. Using the toe of his boot, Young kicked the rocks away
and, finding keeper pins missing in these clevises also, he issued a citation
to Consol for failing to keep mobile and stationary machinery in safe operating
condition. Tr. I 60-61, 75; Exs. P–3 at 1, R–1.

Thereafter,
Young inspected the intersected alleged gas well, and observed that the 10-inch
drill hole was full of water, contained no casing, had no sign of clay, oil, or
gas smell, and was located too far away from any gas wells on Consol’s mine map
to be identifiable as one of them. Tr. I 77-79, 171-72, 217; Ex. P–4 at 8. These
factors caused Young some skepticism as to whether the drill hole was actually
a gas well. Tr. I 76, 171-72. Believing, with absolute certainty, that Consol
had mined through a drill or bore hole that penetrated the coal seam, Young
cited Consol for its failure to accurately plot on its official mine map all
drill holes that penetrate the coalbed being mined. Tr. I 75-79; Ex. P–4 at 1.

III.          
Findings
of Fact and Conclusions of Law

A.     Citation No.
9204073

1. Fact of Violation

Inspector Young
issued 104(a) Citation No. 9204073 on November 18, 2020, alleging a
“significant and substantial” violation of section 75.1725(a) that was “reasonably
likely” to cause an injury that could reasonably be expected to result in “lost
workdays or restricted duty,” and was caused by Consol’s “moderate” negligence. [1] Ex. P–3 at 1. The
“Condition or Practice” is described as follows:

The Company Number 2, 269, 270, and 271 gate shields
located inby the number 26 crosscut on the E32 Longwall Working Section were
not being maintained in safe operating condition. The horizontal keeper pins
which secure the vertical breakaway pins from becoming airborne when they fail
under stress were not in place. The LW face was idled due to intersecting an
uncharted borehole which penetrated the coal seam at the time of issuance. The
horizontal pins were installed into the shield clevises prior to the face
resuming.

Standard 75.1725(a) was cited 20 times in two years at
mine 3607416 (20 to the operator; 0 to a contractor).

Ex. P–3 at 1. The
citation was terminated later that day, when the cited horizontal keeper pins
were properly installed. Ex. P–3 at 1.

In
order to establish a violation of one of his mandatory safety standards, the
Secretary must prove that the violation occurred “by a preponderance of the
credible evidence.” Keystone Coal Mining Corp. , 17 FMSHRC 1819, 1838
(Nov. 1995) (citing Garden Creek Pocahontas Co. , 11 FMSHRC 2148, 2152
(Nov. 1989)). Consol has conceded the fact of violation and the degree of
negligence charged, but contests the significant and substantial (“S&S”) gravity
designation of the violation. Jt. Stip. 10; Resp’t Br. at 2, n.5. The Mine Act
identifies a significant and substantial violation as a violation “of such
nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(1).

2. Gravity

The Secretary maintains
that the violation was S&S because, absent keeper pins, vertical breakaway
pins (“breakaway pins”) can work themselves out of position due to the pushing
and pulling of the shields, break, become airborne, and injure nearby miners. Sec’y
Br. at 11. Respondent counters that breakaway pins only dislodge at the
headgate and tailgate in unusual circumstances, such as an uneven mine floor,
which were not present at the time of inspection. Resp’t Br. at 6-7; Resp’t
Reply Br. at 4. Further, Respondent contends that pins do not become airborne
when they fail and, even if that were to happen, they would not be reasonably
likely to strike a nearby miner. Resp’t Br. at 9; Resp’t Reply Br. at 4.

The Commission has
recently restated the four Mathies criteria that the Secretary must
establish in order to prove that a violation is S&S under National
Gypsum :

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

Peabody Midwest Mining, LLC , 42 FMSHRC
379, 383 (June 2020); see ICG Illinois, LLC , 38 FMSHRC 2473, 2475-76
(Oct. 2016); Newtown Energy, Inc. , 38 FMSHRC 2033, 2036-37 (Aug. 2016); Mathies
Coal Co. , 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v.
FMSHRC , 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of
Labor , 861 F.2d 99, 103-04 (5th Cir. 1988) (approving Mathies criteria),
aff’g 9 FMSHRC 2015, 2021 (Dec. 1987). Resolution of whether a violation is
S&S must be based “on the particular facts surrounding that violation.” Texasgulf,
Inc. , 10 FMSHRC 498, 501 (Apr. 1988); Youghiogheny & Ohio Coal Co. ,
9 FMSHRC 2007, 2011-12 (Dec. 1987).

The fact of
violation has been conceded, satisfying the first Mathies criterion. The
second Mathies criterion, under the Commission’s Newtown
refinement language, requires the Secretary to prove the reasonable likelihood
of the violation causing the occurrence of the hazard that the standard targets.
Peabody , 42 FMSHRC at 383. The Commission explained in Peabody
that the judge must determine “whether [the] hazard was reasonably likely to
occur given the particular facts surrounding this violation.” Id. at 382
(quoting Newtown , 38 FMSHRC at 2041); see Consol Pennsylvania
Coal Co. , LLC , 43 FMSHRC 145, 147 (Apr. 2021). “Reasonable
likelihood” is not an exact standard, but rather an evaluation of risk with “a
particular focus on the facts and circumstances presented.” ICG Illinois ,
38 FMSHRC at 2476; see Newtown , 38 FMSHRC at 2039. When
evaluating the third Mathies criterion, the judge is to assume that the
hazard identified in step two has been realized, and then consider whether the
hazard would be reasonably likely to result in injury in the context of
“continued normal mining operations.” Newtown , 38 FMSHRC at 2045 (citing
Knox Creek Coal Corp ., 811 F.3d 148, 161-62 (4th Cir. 2016)); Peabody
Midwest Mining , LLC , 762 F.3d 611, 616 (7th Cir. 2014); Buck
Creek , 52 F.3d at 135; U.S. Steel Mining Co ., 6 FMSHRC 1573, 1574
(July 1984). The Secretary need not prove a reasonable likelihood that the
violation, itself, will cause injury. Musser Eng’g, Inc. , 32 FMSHRC
1257, 1280-81 (Oct. 2010). At step four, the judge determines whether any
resultant injury would be “reasonably likely to be reasonably serious.” Newtown ,
38 FMSHRC at 2038.

a.       Testimony

Inspector Walter Young
testified that as he was walking down the face of the longwall, he observed
that the number 2 headgate shield and the number 269, 270, and 271 tailgate
shields were missing keeper pins in the clevises. Tr. I 59-61, 75, 122-23. He
stated that mining operations had ceased at 3:30 a.m., and when he issued the
citation later that morning at 8:12 a.m., because he could not find the missing
keeper pins anywhere along the longwall, he estimated that they had been
missing for at least a couple of passes. Tr. I 74-75, 137. He stated that he
did not inspect the wear and tear on the exposed breakaway pins, and that he
required Consol to replace the keeper pins in order to abate the condition. Tr.
I 59, 75, 137. Young explained that breakaway pins are two inches in diameter,
four or five inches long, have round tops, and are placed in the clevises to
attach the shields to the relay bar. Tr. I 62-63, 122, 139; see Exs. R–2A-2D,
2G. He noted that these pins are under the pressure of line and gate shields
weighing anywhere between 27 and 35 tons. Tr. I 59, 63, 133-34, 140. He further
explained that when the shields are left back or fail to advance, the breakaway
pins shear to relieve stress on the heavy equipment. Tr. I 63, 67-69, 117, 131,
133-140; Ex. P–3 at 6. Additionally, Young testified that keeper pins are designed
to hold breakaway pins in place and that, although they may become dislodged
also and fly out of place under certain circumstances, unlike breakaway pins, they
only project a foot or two in a very limited area up or down the pan line. Tr. I
66, 113-14. Without keeper pins, he asserted, pieces of breakaway pins can fly
at least 15 feet, putting miners at risk even when they are standing two
shields away from the shields being operated. Tr. I 70-72, 140, 146, 195. Young
asserted that he has seen “thousands” of breakaway pins fail, and explained
that broken pieces rarely fly vertically, but rather ricochet off of the
shields which, in his opinion, accounts for why some miners are struck without
sustaining injury. Tr. I 67, 131, 197-98, 214. He identified possible injuries from
direct contact to include lacerations of the wrist and face, loss of eyes or teeth,
and bruising. Tr. I 69-70, 73. Young also testified that, as a former miner,
himself, he had personally observed a coworker get hit at the headgate by a
breakaway pin, resulting in a deep laceration to his face requiring cosmetic
stitches. Tr. I 69-70, 118-21. Finally, Young acknowledged that, as an
inspector, he had never seen an accident resulting from projectile breakaway
pin fragments, nor did he know of any MSHA or Consol accident reports pertaining
to injuries caused by airborne pins. Tr. I 127, 128.

Enlow Fork safety
supervisor Frank O’Brien testified that the first and last few shields on the
longwall at the head and tailgate are moved by procedures different from shield
movement in the middle mining zone, rendering the risk of breakaway pin failure
much less likely at the gates. Tr. I 259, 272-75, 278. He explained that in the
middle mining zone, the shearer is operating at speeds of 45 to 55 feet per
minute and, using the SRB automated mode, once the shearer passes, the shields
automatically pull in. Tr. I 253, 259, 272, 278-79. He noted that the middle mining
zone is where he has seen breakaway pins break when faulty sensors occasionally
fail to advance the shields. Tr. I 272-73, 278-79. He also explained that at
the gates, the shearer operates at a speed of five to ten feet per minute, and
the shields are moved manually at a considerably slower pace. Tr. I 259,
274-75, 278-79. Further, O’Brien testified that when shields are moved at the gates,
the computer program prevents miners from operating them any closer than a
distance of two shields, about 12 feet, away from an advancing shield. Tr. I
236, 259, 275-76, 280, 298-99. He stated that if a breakaway pin on a gate
shield were to work its way out of place in the clevis, it would simply fall to
the ground and that, throughout his mining career, he had never heard of or
seen a breakaway pin become airborne or hurt a miner. Tr. I 229, 269, 272.

Jeremy Fabery,
Enlow Fork’s longwall maintenance coordinator, testified that there is a
readily available supply of keeper and breakaway replacement pins down the
longwall face on the toes of the shields, themselves, on rings welded to the
shearer, and on the parts car outby the section. Tr. II 16-17, 39-40, 45-46. He
also stated that, without keeper pins in place, when the shields pull and push,
the breakaway pins work themselves out of place and eventually fall out. Tr. II
16, 25-26. Fabery explained that breakaway pins typically fail in the main
mining zone, where the automated SRB system is operating, rather than at the
gate ends; he asserted that this happens when shields are left back due to
faulty sensors and the pins, designed to bear the stress instead of the heavy
equipment, snap in two rather than shatter. Tr. II 20-23, 28, 43-44, 45-47. He
also acknowledged that breakaway pins can fail at the head and tailgates, but
only under adverse conditions, such as a roof fall. Tr. II 27-28. He testified that
PMC-R computers on the head and tailgate shields allow the shieldmen to pull in
the shields at a distance no closer than two shields away from the shields
being operated, and that this manual process is much more controlled than
automated SRB shield advancement in the main mining zone. Tr. II 23-25, 34. Finally,
Fabery averred that he had never seen nor heard of pins becoming projectile and
injuring anyone. Tr. II 29-32, 42.

b.       Analysis

Focusing
on the second Mathies criterion, the discrete safety hazard to which the
violation contributed is breakaway pin fragments dislodging and forcibly
projecting. Resolution of the reasonable likelihood of a hazard occurring must
be analyzed through the particular facts surrounding the violation and the
evidence established by the record. It is undisputed that breakaway pins fail
under extreme stress when shields are left back. The record establishes that
the cited shields, without keeper pins, were located at the head and tailgate
of the longwall. Gate shields are manually moved using PMC-R computers, a much
more controlled process than in the main mining zone, where the automated SRB
mode moves the shields at a far faster pace. In the main mining zone, pins fail
when faulty sensors cause line shields to be left back while the pan line is
pushed. However, for a pin to fail on a gate shield, the shieldman would have
to manually leave the shield back. While the parties agree that breakaway pins
fail, they disagree about whether they become projectile. The only evidence of
a failed breakaway pin forcibly projecting at the headgate was provided by
Young; however, the balance of his testimony, respecting projectile pins being
commonplace on the longwall, was non-specific as to whether this occurs in the
main mining zone or at the gates. [2] Additionally, by his concession that pins
are less likely to fail on the gate shields, it is reasonable to infer that pin
failure more likely occurs in the faster moving main mining zone.

Despite Consol’s
contentions, the evidence of a breakaway pin injuring a miner, combined with
the fact that breakaway pins are under the extreme pressure of moving shields
weighing up to 35 tons, establishes that pin fragments can become
airborne, even at the gates. However, the Secretary has failed to put forth
sufficient evidence to establish the reasonable likelihood of this occurring. Conversely,
credible evidence demonstrates that breakaway pins are far less likely to fail
at the gates because, except for adverse mine conditions on the longwall, the slower,
more controlled mining process minimizes the likelihood of shields being left back.
Even if pins were to fail at the gates, the evidence establishes that the
slower shield movement considerably decreases the likelihood of them becoming projectile.
The Secretary does not reckon with this evidence whatsoever. Therefore, under the
circumstances surrounding this violation, the Secretary has failed to prove, by
a preponderance of the evidence, the reasonable likelihood of the breakaway
pins on the cited gate shields becoming projectiles without the keeper pins in
place. Consequently, I find that the Secretary has failed to satisfy the second
Mathies criterion and, therefore, this violation was not S&S.

3. Negligence

Consol does not
contest the degree of negligence ascribed to the violation. Resp’t Br. at 2, n.5.
The evidence establishes that the missing keeper pins were plainly visible, and
that replacements were readily available. Tr. I 75; Tr. II 40. Indeed, the only
noted obstructions on the otherwise clean tailgate shields were a rock over
each missing keeper pin, apparently strategically placed to evade Young’s
detection. Tr. I 60-61, 75. Moreover, Consol had almost five hours between
idling the longwall and Young’s inspection to replace the missing keeper pins. Tr.
I 74-75. Accordingly, I find that Consol was appropriately charged with
moderate negligence in violating the standard.

B.     Citation No. 9204074

1. Fact of Violation

Inspector Young
issued 104(a) Citation No. 9024074 on November 18, 2020, alleging a violation
of section 75.1200-1(d) that was “unlikely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Consol’s “low” negligence. [3]
Ex. P–4 at 1. The “Condition or Practice” is described as follows:

The Operator failed to accurately plot all drill holes
which penetrate the coalbed being mined on the E32 Longwall Working Section
(035-0 MMU). An uncharted borehole was inadvertently mined through at the
number 39 shield at plus number 87+28. The Operator believes that the uncharted
borehole could be Company Well Number 2057, but this borehole is approximately
125 feet closer to the Headgate and approximately 122 feet inby where the
Company Number 2057 Well was plotted on the official mine map.

Standard 75.1200-1(d) was cited 1 time in two years at
mine 3607416 (1 to the operator; 0 to a contractor).

Ex. P–4 at 1. The
citation was terminated later that day, after the intersected borehole was
accurately plotted on the official mine map. Ex. P–4 at 2.

The Secretary
maintains that a gas well is a drill hole and, therefore, irrespective of
whether the mined-through drill hole was gas well DNF 2057, a violation of
section 75.1200-1(d) occurred because it was not accurately plotted on the
official mine map. Sec’y
Br. at 14-16.
Consol makes counter arguments that the wrong standard was cited because a gas
well is not a drill hole and, even if it were, it did not have fair notice of
such classification. Resp’t
Br. at 14-18, 24-25 .
Consol also contends that in order to prove a violation of the standard, the
Secretary must produce a copy of the official mine map, and failed to do so. Resp’t Br. at
23-24.
Further, Consol asserts that by plotting gas well DNF 2057 in accordance with
its Plan for Mining Operations Near a Well Believed Not to Exist, it satisfied
the mapping requirements of section 75.1200-1(d). Resp’t Br. at
20-21. Finally,
Consol asserts that the mined-through hole was gas well DNF 2057 and, since it
was plotted at the “best estimated” location, the official mine map was
accurate. Resp’t
Br. at 21-23.

a.       Testimony

Inspector
Walter Young was dispatched to Enlow Fork on November 18 after the mine had reported
to MSHA earlier that morning that it had cut through a suspected gas well. Tr. I
26-27. Young testified that when he arrived at the mine, he looked at the
pre-shift and on shift record books, and a map that Consol provided to him showing
gas wells in the active mining area. Tr. I 30-32; Ex. P–3 at 23. Young, Frank
O’Brien, and Justin Higman proceeded underground to the E-32 longwall section where,
at the number 39 shield, Young observed the 10-inch diameter drill hole. Tr. I
33, 77, 79. No methane was detected at the top of the drill hole and more than
five percent methane was detected at the bottom, it was full of water,
contained no casing, and there was no sign of clay, oil, or a gas smell. Tr. I 77-79;
Ex. P–4 at 8. Young testified that he elected to cite a section 75.1200-1(d) violation
because he could not be 100 percent certain that the uncharted drill hole was a
gas well, but that it was certainly a drill hole that penetrated the coal seam.
Tr. I 76, 163, 171. He explained that gas or oil wells often have gray clay
around them and a musty smell but, in this case, nothing other than the size of
the drill hole and the presence of methane at the bottom suggested that it was
a gas well. Tr. I 82-84, 171. Young further testified that later in his
inspection, he examined the official mine map, as well as the copy hanging on
the wall across from the foreman’s office, and he confirmed that the drill hole
was not accurately plotted on the official
map. Tr. I 44, 105, 111-12, 160.

Safety
supervisor Frank O’Brien testified that he believed the mined-through hole to
be a gas well due to its diameter, and he agreed that it could be classified as
a drill hole. Tr. I 283, 299. He opined that the drill hole was DNF 2057, a gas
well existing on old producer maps that 18 Karat had not been able to find on
the surface, and based his belief on the fact that the drill hole was in the
approximate area where the search for DNF 2057 had been conducted. Tr. I
286-91.

Consol
project engineer and former 18 Karat project manager Matthew Ruckle also
testified that he believed the intersected drill hole to be gas well DNF 2057. Tr.
II 85. Ruckle stated that he coordinates contractor 18 Karat’s surface searches
for old gas wells, and ensures that they are plugged underground for safe
mining once they are located. Tr. II 54, 58-59, 115. He explained that old
producer and farm-line maps are studied to identify wells within 500 feet of
planned mining and, because the maps were hand-drawn and created prior to
promulgation of regulations requiring drilling permits, they are not very
accurate and make locating the wells particularly difficult. Tr. II 53-56. Ruckle
further explained that alleged wells, i.e., those not found by 18 Karat, are
marked DNF (“Did Not Find”) on the old maps and in their estimated location on
Consol’s official mine map. Tr. II 56, 64, 145. He testified that the surface search
for DNF 2057 had included the area where Consol intersected the drill hole but,
since the surface area is now a golf course, no evidence of the drill hole was
ever found, even after it had been intersected underground. Tr. II 82, 84. While
Ruckle opined that the intersected drill hole was DNF 2057 based on its
location and diameter, he acknowledged that the location where Consol mined
through it was 122 feet inby and at least 125.4 feet closer to the headgate than
where DNF 2057 was plotted on the mine map. Tr. II 86, 88, 137-38, 147; Ex.
P–4
at 10, see Ex. R –6.

b.       Analysis

The standard at
issue is clear on its face, unambiguously imposing a duty to accurately depict
on mine maps drill holes penetrating the coalbed being mined. Indeed, in
finding a violation of section 75.1200(h), requiring adjacent mine workings
within 1000 feet of active mining to be accurately shown on mine maps, the Commission
determined that “the plain meaning of section 75.1200 is that a mine map’s depiction
. . . must be accurate.” Musser, 32 FMSHRC at 1273-74. This plain
reading of the standard is consistent with the legislative history of section 215
of the Coal Act, the predecessor provision to section 312 of the Mine Act,
which states that “[r]ecent inundation accidents . . . point up the need for
accurate mapping of mines. Active mines often cut through into adjacent mines,
or worked out and abandoned areas of the same mine, because of the lack of maps
or because of inaccurate maps.” S. Rep. 91-411, at
83 (1969).

Consol asserts
that “the hole which was intersected underground was unquestionably a gas well,”
and that section 75.1200(k), requiring producing or abandoned oil and gas wells
to be accurately shown on mine maps, was the appropriate standard to have cited;
therefore, it contends, the citation should be vacated. Resp’t Br. at 14-18. Further,
Consol argues that it did not have fair notice that a gas well is a drill hole.
Resp’t Br. at 24-25. Conversely, the Secretary established that certain
characteristics of the drill hole cast some measure of doubt as to whether it
was a gas well. It is well settled that more than one standard can be
applicable to a violation, and the instant citation should stand as long as the
cited standard is broad enough to encompass the violation. See, e.g. , Jim
Walter Res., Inc ., 7 FMSHRC 493, 495-98 (Apr. 1985) (finding a regulation
governing the transport of “materials” to include the transport of coal,
despite the judge's finding that a more appropriate standard existed); see
also Dawes Rigging & Crane Rental , 36 FMSHRC 3075, 3077 (Dec. 2014) (noting
the ambiguity in the scope of the regulation’s application, but finding the
dictionary meaning of the term “materials” “sufficiently broad” to encompass a
suspended boom). The term “drill hole” is defined broadly as “a hole in
rock or coal made with an auger or drill,” and is synonymous with the term
“borehole.” Drillhole , Dictionary
of Mining, Mineral, and Related Terms (2d ed. 1996). The term “well” is
defined as “a borehole or shaft sunk into the ground” for numerous purposes,
including “obtaining water, oil, . . . [or] gas,” and is “commonly used as a
synonym for borehole or drill hole.” Well , Dictionary of Mining, Mineral, and Related Terms (2d ed.
1996). The term “drill hole” is “sufficiently broad” to encompass gas wells
and, like the Commission in Dawes , I “decline to read a limitation into
the standard where none exists.” 36 FMSHRC at 3077. Further, not only do
Consol’s own witnesses interchangeably use “gas well,” “drill hole,” and “bore
hole,” but the broad definition of “drill hole” should have put Consol on
notice that a gas well is one of many types of drill holes. Accordingly, I find
that Consol had fair notice of section 75.1200-1(d)’s requirements, and that
the standard is applicable to this violation.

Consol also
contends that the Secretary could only prove a violation of section
75.1200-1(d) by introducing a copy of its official mine map into the record
and, because of its failure to do so, the citation should be vacated. Resp’t Br. at 23-24.
The record establishes that the official mine map is very large, measuring 12
by 12 feet, and that Young did, in fact, inspect it on-site, as well as the
copy hanging outside of the foreman’s office, in addition to the smaller map
provided to him of the active longwall section where the drill hole was intersected.
Further, the smaller maps in evidence are accurate copies, depicting
information included on the official mine map by Consol. Moreover, Consol
acknowledges that the drill hole was not depicted on any of the maps, official
or otherwise, corresponding to the location where it was intersected. See Tr.
I 300, 301-03; Tr. II 137-38,

147. Therefore,
     Consol’s argument is unavailing.

Consol
further argues that an MSHA-approved modification for section 75.1700 extends
to its Plan for Mining Operations Near a Well Believed Not to Exist (“DNF Well
Plan”), a part of its MSHA-approved Cut Through Plan and, in essence, transforms
the DNF Well Plan, itself, into a “reasonable precautions plan” under the Musser
“alternative precautions” exception. [4]  Resp’t Br. at 19-21
(citing In re Petition for Modification, Docket M-2014-011-C (Jun. 16, 2017)); Resp’t Reply Br. at 9-10;
Ex. P–4 at 25-35. Therefore, according to Consol, by plotting gas well DNF 2057
in accordance with its DNF Well Plan, it met the requirements of section
75.1200-1(d). Rep’t Br. at 21; Resp’t Reply Br. at 9-10. The Commission noted
in Musser that an operator may petition the Secretary, under section
101(c) of the Mine Act, to “modify the strict application of section 75.1200”
if adequate “alternative precautions” are implemented. 32 FMSHRC at 1275. Beyond
Consol’s bare assertions in its Briefs, its blanket expansion theory as to how
the MSHA-approved modification for section 75.1700 permits modified compliance
of section 75.1200 through its DNF Well Plan, is difficult, at best, to
discern. Section 101(c) contains specific petition, investigation, and notice
requirements which the approved Cut Through Plan, in and of itself, does not
satisfy. 30 U.S.C. § 811(c); see Ex. P –4 at 20-24 .
The record is simply bereft of any indication that Consol petitioned MSHA for a
modification of section 75.1200, and Consol advances no authority in support of
its position that mere adherence to its DNF Well Plan satisfies the standard’s
mapping requirements. Consequently, Consol is held to the strict application of
section 75.1200-1(d) unless or until, at some later date, it obtains an
approved modification from MSHA.

Finally, Consol asserts
that the intersected drill hole was alleged gas well DNF 2057 and, since it was
plotted at the “best estimated” location, it was mapped accurately. Resp’t Br.
at 21-23. The foundation of this argument rests on Consol’s misplaced interpretation
of the term “accurate.” In discussing the mapping violation of section
75.1200(h) in Musser , the Commission emphasized that “because the
standard requires that the operator maintain an ‘accurate and up-to-date map,’
it follows that if the mine map fails to meet these requirements, the operator
has violated the standard, regardless of whether it did everything possible to
locate an accurate historical map of adjacent mine workings.” 32 FMSHRC
at 1272; see also Dominion Coal Corp ., 35 FMSHRC 3557, 3594 (Dec.
2013) (ALJ) (noting that section 75.1200 does not require operators to make
reasonable efforts to plot gas wells on mine maps, but rather imposes an
absolute duty to be accurate). The strict liability nature of the Mine Act attaches
liability, irrespective of operators’ best efforts at compliance and, consequently,
Consol’s argument, i.e., that its best estimate is tantamount to accurate
plotting, runs afoul of the clear mandate of the standard. Furthermore, resolution
of whether the intersected drill hole was, as Consol contends, gas well DNF
2057, has no bearing on Consol’s duty to plot the drill hole accurately. Put
another way, assuming, arguendo , that the drill hole intersected by
Consol on November 18 was gas well DNF 2057, it was not accurately plotted on
the official mine map. End of story. It follows that Consol violated section
75-1200-1(d).

2. Gravity and
   Negligence

The
record establishes that low levels of methane in the drill hole made it
unlikely for there to be an ignition and injury. Tr. I 103-104. Further,
Young’s testimony was credible, that if there were an ignition, two miners
operating the shearer would reasonably be expected to incur lost workdays or
restricted duty as a result of burns, smoke inhalation, concussions, or broken
bones. Tr. I 105. Accordingly, I find the Secretary’s gravity designations for
this violation to be appropriate.

The
Secretary asserts that Consol’s negligence was low in violating the standard
due to its extensive efforts to locate old, abandoned gas wells. Sec’y Br. at
19-20 . Credible
evidence, as Young acknowledged multiple times, demonstrates Consol’s diligence
in searching for DNF 2057 and, even after the drill hole was mined through,
there were no surface indicia of its existence on the golf course. See Tr. I
104-105, 182-84, 200, 286-89; Tr. II 53-56, 83-84;    Ex. R –7 .
Considering the antiquated, inaccurate producer maps and drastically altered
surface conditions, no prudent operator, conducting the most exhaustive search,
could have likely located the drill hole prior to its intersection, and I find
no fault in Consol’s fruitless efforts. Therefore, I find that Consol was not
negligent in committing the violation.

IV.          
Penalty

While the
Secretary has proposed a total civil penalty of $905.00 for the violations,
the judge must independently determine the appropriate assessment by
proper consideration of the six penalty criteria set forth in section 110(i) of
the Mine Act:

(1) the operator's history of previous violations; (2)
the appropriateness of the penalty to the size of the business of the operator;
(3) whether the operator was negligent; (4) the effect on the operator's
ability to continue in business; (5) the gravity of the violation; and (6)
whether good faith was demonstrated in attempting to achieve prompt abatement
of the violation.

30 U.S.C. § 820(i);  see
Sellersburg Co. , 5 FMSHRC 287, 291-92 (Mar. 1983),  aff'd ,  736
F.2d 1147 (7th Cir. 1984) .

Applying
the penalty criteria, and based on a review of MSHA’s online records, I find
that Consol is a large operator. The record also establishes that Consol
demonstrated good faith in achieving rapid compliance after notice of the
violations, and the parties stipulated that imposition of the proposed penalty
will not adversely affect Consol’s ability to remain in business. Jt. Stip. 6. Consideration
of Consol’s history of violations, gravity, and negligence factors for each
violation follows below.

A.     Citation No.
9204073

It has been
established that this non-S&S violation was unlikely to cause an injury
that was reasonably likely to result in lost workdays or restricted duty, and
was caused by Consol’s moderate negligence. In the fifteen-month period
preceding issuance of this citation for missing horizontal keeper pins, nine
violations of section 75.1725(a) became final Orders of the Commission. Ex. P–5
at 15. Given that section 75.1725(a) is a general equipment maintenance
standard, and that the record is lacking as to the specific nature of those
violations, I find Consol's violation history neither a mitigating nor
aggravating factor in assessing an appropriate penalty. The Secretary has
proposed a penalty of $782.00 by application of his Part 100 penalty table to
an S&S violation. Applying the civil penalty criteria, I find that a
penalty of $275.00 is appropriate.

B.     Citation No. 9204074

It has been
established that this non-S&S violation was unlikely to cause an injury
that was reasonably likely to result in lost workdays or restricted duty, and
that Consol was not negligent in its commission. In the fifteen-month period
preceding issuance of this citation for a mapping violation, one violation of
section 75.1200-1(d) became a final Order of the Commission, a mitigating
factor in assessing an appropriate penalty. Ex. P–5 at 13. The Secretary has
proposed a penalty of $123.00 by application of his Part 100 penalty table. Applying
the civil penalty criteria, I find that a penalty of $100.00 is appropriate.          

ORDER

WHEREFORE, it is ORDERED
that Citation No. 9204073 is AFFIRMED , as modified , to
delete the “significant & substantial” designation, and that Citation No.
9204074 is AFFIRMED , as modified , to reduce the degree of
negligence to “none,” and that Consol Pennsylvania Coal Company, LLC, PAY
a civil penalty of $375.00 within 30 days of the date of this decision. [5] ACCORDINGLY ,
this case is DISMISSED .

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative Law Judge

Distribution:

Ryan
Kooi, Office
of the Solicitor, U.S. Department of Labor, 1835 Market Street, Mailstop
SOL/22, Philadelphia, PA 19103

[email protected]

James
P. McHugh, Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329

[email protected]

Kenneth Polka, CLR, U.S. Department of Labor, MSHA, 631 Excel
Drive, Suite 100, Mt. Pleasant, PA 15666

[email protected]

Craig Aaron, CONSOL Energy Inc., 1000 Energy Drive, Suite 100,
Canonsburg, PA 15317

[email protected]

[1] 30 C.F.R. §
75.1725(a) provides: “[m]obile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.”

[2] Young’s
conflicting testimony about his actual observance of this incident does not
undermine his overall credibility as to its occurrence, and is viewed as an
overstatement corrected on cross-examination. See Tr. I 70, 118, 120-21.

[3] 30 C.F.R. §
75.1200 provides: “[t]he operator of a coal mine shall have in a fireproof
repository location in an area on the surface of the mine chosen by the mine
operator to minimize the danger of destruction by fire or other hazard, an
accurate and up-to-date map of such mine drawn on scale.”

30
C.F.R §75.1200-1 provides: “[a]dditional information required to be shown on
mine maps under § 75.1200 shall include the following:

(d)
All drill holes that penetrate the coalbed being mined.”

[4] Consol’s usage of
“reasonable precautions” terminology refers to the Commission’s “alternative
precautions” exception in Musser .

[5] Payment should be
made 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.