Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

CONSOL Pennsylvania Coal Company operates the Harvey Mine, an underground coal mine in Pennsylvania. MSHA cited the company after an inspector found that a moving belt drive roller beside a narrow wooden walkway had no guard in front of it. Judge Alan G. Paez found that miners could use the walkway during normal operations and could slip or contact the low overhead belt, exposing them to the moving roller. He affirmed the violation as significant and substantial because contact with the roller was reasonably likely to cause a serious injury. He also upheld the low-negligence finding and assessed the proposed $298 penalty.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 75.1722(a), 75.1725(c), 75.360(b)(11)(v), and 100.3(d); 30 U.S.C. §§ 802(d), 814(d)(1), 815, and 820(i)
• Outcome: Citation No. 9203483 was affirmed as significant and substantial with low negligence, and a $298 penalty was assessed.
• Key point: An exposed moving belt roller violated the guarding rule where miners could use a nearby walkway and slip or be pushed toward the roller during normal operations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004

SECRETARY OF
LABOR,

:     CIVIL
PENALTY PROCEEDING

MINE
SAFETY AND HEALTH

:    

ADMINISTRATION
(MSHA),

:     Docket No.
PENN 2021-0047

Petitioner,

:     A.C. No.
36-10045-527805

:    

v.

:

:

CONSOL
PENNSYLVANIA COAL       COMPANY, LLC,

Respondent.

:     Mine: Harvey
Mine

:

:

DECISION

Appearances:  Matthew
R. Epstein, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;

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

for Respondent.

Before:           
           Judge Paez

This docket is before me upon the Petition for the Assessment of Civil
Penalty filed by the Secretary of Labor (“Secretary”) pursuant to section 105
of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815. In dispute is a single section
104(a) citation issued to CONSOL Pennsylvania Coal Company, LLC (hereinafter,
“CONSOL” or “Respondent”). [1]

To prevail, the
Secretary must prove any cited violation “by a preponderance of the credible
evidence.” In re: Contests of Respirable Dust Sample Alteration Citations ,
17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co. , 11
FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. , Sec’y of Labor v.
Keystone Coal Mining Corp. , 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This
burden of proof requires the Secretary to demonstrate that “the existence of a
fact is more probable than its nonexistence.” RAG Cumberland Res. Corp. ,
22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marks
omitted), aff’d , 272 F.3d 590 (D.C. Cir. 2001).  

I.
 STATEMENT OF THE CASE

In separate
orders, Chief Administrative Law Judge Glynn F. Voisin assigned me both Docket
No. PENN 2021-0047 on April 14, 2021, and Docket No. PENN 2021-0058 on May 12,
2021. On August 16, 2021, I consolidated these dockets and set them for
hearing. The parties settled five of these six violations prior to the hearing,
and only Citation No. 9203483 in PENN 2021-0047 remains. [2]

MSHA Inspector Jason
Detrick issued Citation No. 9203483 at CONSOL’s Harvey Mine on November 17,
2020. The citation alleges CONSOL violated 30 C.F.R. § 75.1722(a) by failing
to guard the area in front of the 5B tailgate belt drive roller. The Secretary
designated the citation as significant and substantial (“S&S”), [3] characterized
CONSOL’s degree of negligence as low, and determined the likelihood of injury to
be reasonably likely to result in lost workdays or restricted duty. The
Secretary proposed a penalty of $298.00 which CONSOL timely contested. The
parties filed prehearing reports.

I held a remote hearing
on November 17, 2021, via Zoom for Government. At the hearing, the Secretary
presented testimony from MSHA Inspector Jason G. Detrick. CONSOL presented
testimony from its Lead Safety Inspector Chase Shaffer and Safety Inspector William Hockenberry. I requested post-hearing briefs
and permitted CONSOL to raise any objections to the Mine Violation History
exhibit (Ex. GX–9) by the briefing deadline. Both parties submitted
post-hearing briefs on January 18, 2022, and CONSOL raised no objection to the
exhibit. I left the record open until February 2, 2022, for the parties to file
reply briefs but received none.

II.
 ISSUES

In Citation No. 9203483,
the Secretary asserts that CONSOL violated section 75.1722(a) by failing to guard the area directly in front of the
5B tailgate belt drive roller of the 5B tailgate belt line at crosscut zero. (Tr.
17:15–21, 27:8–10; Ex. GX–1-1.) The Secretary believes the violation should be
upheld as S&S, reasonably likely to result in lost workdays or restricted
duty, and the result of a low degree of negligence. (Tr. 17:21–24, 18:4–8; Ex.
GX–1-1; Sec’y Post-hr’g Br. at 5–11.) CONSOL contests the fact of the violation,
the gravity and negligence determinations, the S&S designation, and penalty.
(Resp’t Post-hr’g Br. at 5–14; Tr. 18:12–15.)

Accordingly, the
following issues are before me: (1) whether CONSOL violated the guarding
provisions of 30 C.F.R. § 75.1722(a) as alleged in Citation No. 9203483; (2) whether
the gravity of such a violation would result in “lost workdays or restricted
duty”; (3) whether the citation was properly designated as S&S; (4) whether
CONSOL’s negligence in committing the violation is “low”; and (5) the
appropriate penalty for the violation, if any.

For
the reasons set forth below, Citation No. 9203483 is AFFIRMED .

III.
 FINDINGS OF FACT

At the hearing,
the parties stipulated to the following items verbatim in a joint exhibit (Jt. Ex. 1; Tr.
83:3–10) :

1. CONSOL
   Pennsylvania Coal Company, LLC (“CONSOL”) is an “operator” as defined in
   section 3(d) of the Mine Act, 30 U.S.C. § 802(d).

2. At all times
   relevant to these proceedings, Harvey Mine, Mine ID 36-10045, was and is a
   mine, as defined in section 3(h) of the Mine Act.

3. CONSOL’s
   operations at the Harvey Mine 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 section 105
   and 113 of the Mine Act.

5. True copies of
   each of the citations that are at issue in this proceeding were served on the
   Respondent or its agent as required by the Mine Act.

6. Exhibit A,
   attached to the Secretary’s petition in the above-referenced dockets, contains
   authentic copies of the citations that are at issue in this proceeding with all
   appropriate modifications or abatements, if any.

A.        Operations
at the Harvey Mine

CONSOL operates
the Harvey Mine, an underground coal mine in Greene County, Pennsylvania that utilizes
both continuous mining and longwall mining. (Ex. GX–9; Tr. 93:20–23, 106:24–107:9 .) Continuous miner machines drive into the
coal seam and advance to create entryways used for travel into and out of the mine
and to set up longwall operations. (Tr. 106:24–107:9.) The continuous miners also
create passageways perpendicular to the entryways, called crosscuts, which
connect the entryways, and when viewed from above these entryways and crosscuts
resemble a grid. (Ex. R –5.)
In one of these entryways, CONSOL constructed the 5B tailgate belt line. (Tr. 23:18–24:3,
93:14–23.) The 5B tailgate belt line dumps coal onto the “mother” belt that brings
mined coal up to the surface for processing. (Tr. 23:25–24:7.) The 5B tailgate belt
line utilizes a conveyor belt made of many splices, or pieces of belt, patched together
that circulates around the length of the belt line. (Tr. 38:1–2, 108:2–8; Ex. GX–2-1.)
The belt line must be lengthened by adding new splices every few days as the
continuous miner machine cuts deeper into the coal seam. (Tr. 37:22–38:5, 106:25–107:23.)

The 5B tailgate
belt line is constructed to sit closer to one side of the entryway to provide
miners a passageway, and CONSOL built wooden walkways along the wide side of
the belt line for miners to traverse the 5B tailgate belt entryway. (Tr. 30:8–17,
31:5–32:4.) In addition, CONSOL built a wooden walkway in
front of the 5B tailgate belt drive roller —perpendicular to the wide side
walkway—which goes underneath the bottom of the conveyor belt that revolves
around the belt line. (Tr. 24:19–25:4, 57:10–24.) This wooden walkway provides
access to the opposite or “tight” side of the belt line. ( Id. ; 58:20–25,
59:18–21; Exs. GX–3-1-2.) The tight side is the narrow side closest to the rib
(or mine wall) where miners cannot traverse the walkways without turning
sideways due to the narrow clearance. (Tr. 36:2–9.) The record indicates a
wooden walkway was also built on the tight side. (Tr. 58:18–59:8; Ex. GX–3-1.)

The perpendicular wooden
walkway in front of the 5B tailgate belt drive roller is constructed of
wooden planks and rests about six inches off the ground with a width of two-and-a-half
to three feet. (Tr. 30:6–7, 16–17, 31:9–10, 21–25, 32:1–4.) The vertical distance
from this walkway to the bottom of the conveyor belt running overhead is approximately
five and a half feet. (Exs. GX–1-4 , GX–3-2 ; Tr. 33:7–9, 67:22–25, 76:13–77:9, 105:12–18,
119:22–120:1.) A miner would need to bend down to get under the belt line here.
(Tr. 68:3–4, 76:25–77:9.) T he bottom conveyor belt
travels towards the 5B tailgate belt drive roller . (Tr. 33:11–16, 35:3–6;
Ex. GX–2-1.) The 5B tailgate belt drive roller is part of the machinery that
powers the conveyer belt and is located approximately at crosscut one on the 5B
tailgate belt line. (Tr. 25:22–26:3, 26:12–27:2.) The
drive roller is some four feet in diameter and spans the width of the belt,
which is some 52 inches. (Tr. 81:9–13, 100:10–15; Ex. GX–1-3.) The perpendicular
wooden walkway sits no more than three and a half feet from the 5B tailgate belt
drive roller. (Tr. 33:17 – 20, 67:8–17,
103:8–10; Exs. GX–1-4, R–1 at 002, R–4 at 015.)

B.        Preshift
Examinations and Repair of Ripped Belt

As required by
law, CONSOL’s preshift examiners survey the conditions at the Harvey Mine three
times a day prior to the start of the day, afternoon, and midnight shifts. (Tr.
38:9–17, 44:3–6, 51:16–52:14.) During the day shift on November 16, 2020,
around 1:00 p.m., workers shut down the 5B tailgate
belt line to repair the conveyer belt, which was ripped in two. (Tr. 50:18–21,
51:3–18, 97:2–15; Exs. GX–1-3 , R–1 at 002.)  

To
repair the ripped belt, miners made two complete splices of belt fragments to
create one long conveyer belt. (Ex. R–1 at 002; Tr. 38:1–2.) After splicing the
torn belt, miners on the midnight shift began training the belt. (Ex. R–3 at 013; Tr. 73:4–9, 108:5–8.)
“Training the belt” means adjusting the rollers under the conveyor belt so it
runs in the middle of the belt structure, thus preventing damage to the conveyer
belt from rubbing against the stands. (Tr. 36:21–25, 72:24.) Training the belt
occurs at the tailpiece area of the 5B tailgate belt line closest to the
working face, which lies at the opposite end of the drive roller’s location
where Inspector Detrick issued the citation. (Tr. 111:15–112:18, 113:1–7.) Soon
after miners on the midnight shift trained the 5B tailgate conveyer belt (Ex.
R–3 at 013), CONSOL’s preshift examiner traveled the area to examine the belt
line in preparation for the day shift that began at 8:00 a.m., yet had
staggered miner arrival times of 7:15 a.m., 7:30 a.m., and 7:45 a.m. due to
COVID-19 restrictions. (Tr. 51:19–52:7, 73:21–24; Ex. R–2 at 003.) The 5B belt
line was idle during the preshift examination that took place on November 17 from
5:00 a.m. to 6:53 a.m. (Tr. 50:12–14; Exs. GX–1-6, R–2 at 003.) At some point prior to the preshift examination the
guarding around the 5B tailgate drive roller was removed. (Tr. 43:6–17,
53:6–14; Ex. GX–1-3.) The 5B tailgate belt line was turned back on around 7:30
a.m. on November 17 , 2020, just prior to Inspector Detrick’s inspection at
8:15 a.m. (Tr. 43:8–13, 97:19–21.)

C.        Detrick’s
Inspection of the Harvey Mine

MSHA I nspector Jason
Detrick inspected the Harvey Mine for a routine quarterly inspection. (Tr. 17:13–14,
23:10–12, 43:12–13, 47:10–12.) Detrick has served
as an MSHA Inspector for the last eight years. (Tr. 22:15–16.) Prior to his
work as an MSHA Inspector, Detrick worked approximately fifteen years in
underground mines with experience in a myriad of positions, including equipment
operator, shuttle car operator, and beltman, for a combined total of 23 years
in mining. (Tr. 22:22–25.) Harvey Mine’s Lead Safety Inspector Chase Shaffer
and Safety Inspector William Hockenberry accompanied Detrick during his inspection.
(Tr. 85:22–23, 117:16–20.) Shaffer has worked at Harvey Mine for six years and
in the mining industry for over ten years with all his roles focused on mine
safety. (Tr. 84:16–21, 85:24–86:2.) Hockenberry has worked in the mining
industry for eight years. (Tr. 115:9–15, 24–25, 116:1–5.)

Inspector Detrick arrived
at the Harvey Mine at 7:30 a.m. on November 17, 2020. (Tr. 17:13–14, 23:10–12,
43:12–13, 47:10–12.) He
first checked the mine map and preshift examination records. (Tr. 48:2–5; Ex.
GX–1-6.) The preshift records listed no upcoming maintenance tasks. (Tr.
71:9–12, 72:6–7; Ex. GX–1-6.) Detrick started
the inspection of the 5B tailgate belt at 8:15 a.m. (Tr. 43:12–13.) Inspector Detrick and Shaffer began at the zero crosscut
of the 5B tailgate section. (Tr. 24:2–7, 16–20.) They proceeded along the side
of the belt line facing the exit. ( Id. ) Both Inspector Detrick and
Shaffer took notes as they walked. (Tr. 29:10–14, 92:6–18; Exs. GX–1-2–4, GX–1-5,
R–1.) They walked to the 5B tailgate drive motor area, which was wet,
muddy, and “sloppy,” as indicated by the sight of dark ground instead of white
rock dust. (Tr. 29:24–30:5, 41:21–24; Ex. GX–3-2.) Inspector Detrick observed
that the bottom of the 5B tailgate conveyer belt was in operation and running
in the direction of the drive roller. (Tr. 24:11 – 13,
33:13–16.) Inspector Detrick noted the belt contained no coal since the belt
line had just recently started running. (Tr. 43:8–13, 94:3–4; Ex. GX–1-6.) No
guarding stood in front of the 5B belt drive roller adjacent to the walkway leading
to the tight side, nor was there any guarding above that walkway to protect
miners from the bottom of the conveyer belt overhead. (Tr. 33:21–34:2; Ex. GX–1-1.)
Inspector Detrick issued Citation No. 9203483 which
only addressed the guarding missing in front of the 5B belt drive roller. (Ex. GX–1-1;
Tr. 25:2–6.)

D.        Issuance
of Citation No. 9203483 and its Abatement

In Citation No.
9203483 (Ex. GX–1-1), Inspector Detrick wrote:

The 5B Tail Gate Belt Drive roller located at 0xc of
the 5B Belt Conveyor is not guarded to prevent miners from coming into contact
with moving belt components. If this condition continues to exist, it will
increase the likelihood of injuries to those miners of a serious nature. All
machine parts which may be contacted by persons and which may cause injury
shall be guarded.

Inspector Detrick issued Citation No.
9203483 at 8:30 a.m. for missing guarding in front of the 5B belt drive roller per section 75.1722(a) . (Tr. 27:8–10, 73:4–5; Ex. GX–1.) He designated the
citation as S&S, as reasonably likely to lead to an injury resulting in
lost workdays or restricted duty, and as low negligence. (Tr. 17:21–24; Ex. GX–1-1.)
Inspector Detrick determined the hazard in question could affect one person, likely
either a mine examiner or a belt person. (Tr. 38:20–22; Ex. GX–1-1–3.)

Shaffer and
Hockenberry found guarding panels nearby leaning up against the mine rib. (Tr.
96:14–18, 123:22.) To abate the citation, they turned off the 5B belt line and installed
the six-foot guarding panel in front of the 5B belt roller. (Tr. 75:16–22,
108:19–21, 123:13–18; Exs. GX–1-1, GX–1-4.) Although the citation only addressed
the missing guarding in front of the belt drive roller, Shaffer and Hockenberry
also installed overhead guarding above the walkway in front of the 5B drive
roller ( id. ), creating a cross-under so miners could safely go under the
belt to the tight side while the belt line ran. (Tr. 99:7–11.)

IV.
 PRINCIPLES OF LAW

A.        Elements
for an S&S Violation

A violation is
S&S “if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum
Co. , 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the
Secretary must prove:

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

Peabody Midwest
Mining ,
42 FMSHRC 379, 383 (June 2020) (citing Newtown Energy , 38 FMSHRC 2033,
2037–38 (Aug. 2016)); Mathies Coal Co. , 6 FMSHRC 1, 3–4
(Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc. v. Fed. Mine
Safety & Health Admin. , 52 F.3d 133, 135–36 (7th Cir. 1995) (affirming the
application of the Mathies criteria); Austin Power, Inc. v. Sec’y of
Labor , 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies criteria ); CONSOL Pa. Coal Co. , __
FMSHRC __, 2022 WL 489572 (Feb. 10, 2022) (holding substantial evidence must
support the theory of hazard under the second Mathies element). The
Commission has specified that evaluation of the likelihood of injury should be
made assuming continued normal mining operations. U.S. Steel Mining Co. ,
7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. , 6 FMSHRC
1573, 1574 (July 1984)).

B.        Negligence
Determinations

Commission Judges
determine negligence under a traditional analysis rather than relying on the
Secretary’s regulations at 30 C.F.R. § 100.3(d). Mach Mining, LLC v.
Sec’y of Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016) (quoting Brody
Mining, LLC , 37 FMSHRC 1687, 1702 (Aug. 2015)). In evaluating these
factors, the negligence determination is based on the “totality of the
circumstances holistically,” including factors such as the protective purpose
of the regulation, and what actions would be taken by a reasonably prudent
person familiar with the mining industry. Mach Mining , 809 F.3d at 1264
(quoting Brody Mining, LLC , 37 FMSHRC at 1703).

V.
 ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND

CONCLUSIONS
OF LAW

A.        Violation
of 30 C.F.R. § 75.1722(a) – Failure to Guard Belt Drive
Roller

The
Secretary alleges that CONSOL violated section 75.1722(a) which requires that “exposed
moving machine parts which may be contacted by persons, and which may cause
injury to persons shall be guarded.” (Tr. 27:8–10); 30 C.F.R. § 75.1722(a). [4] CONSOL appears
to contend no violation occurred but offered no supporting arguments at the hearing
other than the missing guarding posed no hazard. (Resp’t Post-hr’g Br. at 4; Tr.
19:1–2.)

Both
MSHA Inspector Detrick and CONSOL’s Shaffer agree the 5B tailgate belt line was
actively running. (Tr. 24:11 – 13, 94:1 – 4.) They, as well as CONSOL’s Hockenberry, also
agree that at the time of the citation, the 6-foot guarding was missing from
the area directly in front of the moving, exposed 5B belt drive roller. (Tr. 33:21–24,
119:13–20, 123:13–16; Ex. R–1.) The drive roller spans some
four feet in diameter and is the width of the belt, which is 52 inches or over
four feet wide. (Tr. 81:9–13, 100:10–15.) The walkway in front of the drive
roller, used to access the tight side, sits no more than three to three-and-a-half
feet from the 5B belt drive roller. (Tr. 33:17 – 20, 67:8–17, 103:8–10; Exs. R–1 at 002, R–4 at 015.)
Given this exposure, miners may come in contact with the drive roller and
suffer injury. (Tr. 42:7–16.) Based on the record, I determine that CONSOL
failed to guard the 5B belt drive roller while the belt line was operating, and
the sizeable gap from the missing guarding exposed moving machine parts that,
due to their proximity to the walkway, may be contacted by persons. Therefore,
I conclude that the Secretary has met his burden of proving CONSOL violated section 75.1722(a).

B.        Significant
and Substantial Determination

1.         Underlying
Violation of a Mandatory Safety Standard

To establish the
first element of the Mathies test, the Secretary must prove an
underlying violation of a mandatory safety standard. I have determined that
CONSOL violated section 75.1722(a), because it failed to guard the 5B tailgate
belt drive roller. See discussion supra Part V.A. Thus, the
Secretary has satisfied the first element of the Mathies test.

2.         Likelihood
of Causing the Occurrence of the Discrete Safety Hazard Against

Which
the Standard Is Directed

For the second Mathies
element, the Secretary must establish that “there exists a reasonable
likelihood of the occurrence of the hazard against which the mandatory safety
standard is directed.” Newtown , 38 FMSHRC at 2038. Here, the hazard is
the possibility of miners contacting the moving 5B tailgate belt drive roller,
the issue against which the standard is directed. (Tr. 42:17–43:5); see Electric Equipment
and Safeguards for Mechanical Equipment, 37 Fed. Reg. 11,777, 11,779 (June 14,
1972) (proposing section 75.1722 “in order to prevent to the greatest extent
possible, accidents in the use of mechanical equipment”) (implemented Feb. 23,
1973, at 38 Fed. Reg. 4,976, codified at 30 C.F.R. § 75.1722).

CONSOL argues no miner would be near the exposed
moving parts because no grease fittings nor maintenance were in this area and
the 5B tailgate belt line had no dedicated belt attendant. (Tr. 75:13–15, 102:4–9,
22–25, 103:5–6, 104:18–105:5; Resp’t Post-hr’g Br. at 8–9.) While Inspector
Detrick observed no miners in the immediate vicinity at the time of his inspection,
S&S determinations are made in the context of normal, continuous mining
operations. See, e.g. , Knox Creek Coal Corp ., 36 FMSHRC 1128,
1132 (May 2014) (indicating that the Judge erred when he took a “‘snapshot’
approach” to the S&S analysis). Contrary to CONSOL’s assertion, miners
would be in the area throughout the workday as examiners inspect the area before
the day, afternoon, and midnight shifts. (Tr. 38:16–17.) While CONSOL argues a mine
examiner normally stays on the walkway side to do a preshift examination, I credit
as reasonable Detrick’s testimony that a “mine examiner might have to go over
[to the tight side] in order to do his exam if he suspects there’s something
wrong on th[e] tight side of the belt.” (Tr. 36:12–17, 55:19–22, 62:15–16, 64:18–20,
103:5–6.) I also find Detrick’s statement credible that “miners may shovel
spillage from the belt,” as this area is near the transfer point to the
“mother” belt. (Tr. 24:1–7; Ex. R–5.) Detrick also stated that miners may be
assigned to rock dust or perform other work in the area. (Tr. 36:12–17, 55:15–19,
101:19–102:9, 22–25.) Although CONSOL’s Shaffer noted that the 5B tailgate belt
did not have a dedicated belt attendant like two other belts had, Shaffer acknowledged
that CONSOL had other beltmen called “rovers” who would go to wherever they
were assigned work for the day. (Tr. 104:18–105:5.) Looking at CONSOL’s own
work log shows miners were assigned work along the 5B belt line during the
afternoon shift of November 16, 2020. (Ex. R–3 at 009, 010.) Indeed, the very existence
of the walkway to the tight side in front of the 5B belt roller shows miners
would need to access this area (Tr. 57:6–20, 101:19–102:9), and one can also reasonably
infer that removal of the guarding in front of the belt drive roller indicates
some work had already been performed here. Thus, I find under normal mining
operations that miners would have assigned work in this area.

With regard to the
occurrence of the hazard, miners traversing this area in front of the 5B belt
roller would be on a walkway that spans only two and a half to three feet in
width. (Tr. 30:6–7.) Miners going into this area would also encounter the exposed
bottom of the conveyor belt, which is only some five and a half feet above the wooden
walkway. (Tr. 33:7–9.) Thus, a miner of average height wearing boots and a
hardhat—not to mention a six-foot-tall miner like Inspector Detrick—must bend
down to go under the belt. (Tr. 68:3–4, 76:25–77:1.) Not only does the route require a miner to bend down, but Detrick observed this area around the wooden walkway to be wet,
muddy, and could “get slippery” as was apparent from CONSOL’s photographs of
the dark mine bottom instead of the usual white rock dusk. (Tr. 41:22–24,
64:23–25, 65:4–5; Exs. GX–1-3, GX–3-2 .)

To get to the
tight side, a miner would traverse under a moving belt in this bent over or stooped
position. The missing guarding in front of the 5B belt drive roller created an
unguarded space measuring approximately six feet high by four and a half feet
wide. (Tr. 95:19–96:10, 100:13–14, 119:7–14, 123:10–19; see Exs. GX–3,
R–4.) As Inspector Detrick determined, a miner could fall through the unguarded
space next to the wooden walkway and come in contact with the drive roller,
which could occur in two ways: Either the miner could slip and fall directly from
the walkway into the moving and exposed drive roller, or the miner’s hardhat
could come in contact with the bottom of the unguarded conveyer belt [5] overhead and
be thrust toward the 5B tailgate drive roller. (Tr. 41:13–42:3.)

In the first
instance, a miner could slip on the wooden walkway in front of the belt drive
roller, given that the area around this wooden walkway was wet and muddy and
thus slippery. (Tr. 41:22–24, 64:23–65:5, 69:16–70:6; Exs. GX–1-3, GX–3-2.) In
the second instance, a miner attempting to traverse under the conveyer belt would
not be aware how close he was to contacting the bottom of the belt, especially when
walking in a stooped position. CONSOL argues this is all speculative as a miner
would not necessarily fall in the direction of the belt drive roller, nor would
a miner fall upwards. Yet, if a miner slips in a bent over position, the miner
is reasonably likely to jerk upwards or straighten up to try to regain his
balance. In such an instance, he would be unable to see how close he is to the bottom
of the conveyer belt and could reasonably contact the unguarded moving belt [6] and be thrust
in the direction of the drive roller. The “miner’s hardhat would be knocked off
his head or he would be pulled into the belt.” (Tr. 33:6–10, 19–20, 41:18–25;
Exs. GX–1-4, GX–2-1.) Moreover, a miner would be exposed to the hazardous
condition first when traversing towards the tight side and again when
inevitably the miner must retrace his steps to return to the walkway side. Indeed,
doing so in a bent down position over a wet, muddy, and narrow wooden walkway increases
the likelihood of the miner slipping and falling towards the exposed drive
roller. Either slipping and falling into the opening, or having the miner’s
hardhat come in contact with the bottom conveyer belt overhead thereby knocking
the miner towards the exposed drive roller, could catch the limbs or clothing
of a miner and pull the miner into the moving machinery. (Tr. 42:20–25.)

Given
the testimony, the photographic evidence of the cited area, and the record as a
whole, I determine it is reasonably likely that a
miner could slip and/or come in contact with the unguarded conveyer belt, thereby
falling towards and contacting the exposed 5B belt drive roller . Mathies , 6 FMSHRC at 5 (noting “an
inspector’s judgment is an important element” in an S&S determination)
(citing Nat’l Gypsum , 3 FMSHRC at 825–26); see also Buck Creek Coal ,
52 F.3d at 135 (stating that Judge did not abuse discretion in crediting
opinion of experienced inspector).  

I determine the violation was
reasonably likely to cause the occurrence of the discrete safety hazard against
which the standard is directed , and,
therefore, the Secretary has satisfied the second element of Mathies .

3.         Likelihood
the Occurrence of the Hazard Would Cause Injury

Regarding the
third Mathies element, the Secretary must demonstrate a reasonable
likelihood that the occurrence of the hazard would result in an injury. As
discussed in the section above, if a miner slipped and fell because of the wet wooden
walkway or tripped on the walkway, then the miner could reasonably fall into this
six- by four-and-a-half-foot unguarded area and contact the moving machine
parts. The miner’s entire body would not need to contact the drive roller to
cause injury. The approximately four-foot-diameter drive roller that spans the 52-inch
width of the 5B belt spins swiftly, so contact with it is reasonably likely to
cause injury to limbs. (Tr. 42:20–43:5, 41:19–42:3,
20–25, 81:11–13); see discussion supra Part V.B.2.

Consequently, I
determine that the hazard of contacting the unguarded belt roller was
reasonably likely to cause injury, thus satisfying the third element of the Mathies
test.

4.         Likelihood
Resulting Injury Would Be of Reasonably Serious Nature

Lastly, under the fourth
Mathies element, the Secretary must prove a reasonable likelihood the
resulting injury would be of a reasonably serious nature. An injury of a “reasonably
serious nature” does not require a specific type of injury, and a mere sprain
or similar injury may be “reasonably serious.” S&S Dredging Co. , 35
FMSHRC 1979, 1981–82 (July 2013) (holding the Judge erred in requiring the
Secretary to demonstrate an injury would result in hospitalization, surgery, or
a long period of recuperation to satisfy the fourth Mathies element). Yet
the drive roller is large enough, at around three and a half to four feet in
diameter, and fast enough to crush limbs and otherwise cause a serious injury
according to Inspector Detrick, who previously worked as a Beltman. (Tr. 42:7–16,
81:11–12.) CONSOL’s witnesses did not dispute Inspector Detrick’s testimony that
such injuries could include damage to limbs. (Tr. 42:1–4, 20–25.) I determine
that the injuries expected to result from contacting the drive roller are
reasonably likely to be of a reasonably serious nature, thus satisfying the
fourth Mathies element. For the same reasons, I affirm the Inspector’s gravity
determination as reasonably likely to result in lost workdays or restricted
duty.

Accordingly,
the Secretary has satisfied all four elements of the Mathies test. I
conclude that Citation No. 9203483 was appropriately designated as S&S.

C.        Negligence

Inspector Detrick assigned
low negligence to Citation No. 9203483. (Ex. GX–1.) In support, the Secretary
asserts that the preshift examiner should have anticipated the 5B tailgate belt
would resume operation and thus needed to have the guarding reinstalled. (Tr. 79:9–17.)
CONSOL argues for no negligence because the 5B tailgate belt line lay idle when
the preshift examiner on the midnight shift examined the area. (Resp’t Post-hr’g
Br. at 13–14; Tr. 120:15–16.)

The
record indicates that CONSOL trained the 5B tailgate conveyer belt during the midnight
shift, whereby the belt would be allowed to run. (Tr. 97:18–21; Exs. GX–1-3, R–3
at 013.)
The parties agree that adding new splices and training the 5B belt would occur
in the tailpiece area near the face where active mining takes place—this is the
opposite end of the belt line from the 5B head roller where the guarding was
missing. (Tr. 107:17–108:8, 111:13–112:3, 112:24–113:7.) Though CONSOL could remove
guarding in the tailpiece area to train the 5B belt under the maintenance
exception, 30 C.F.R. § 75.1725(c), the guarding in front of the 5B belt
drive roller on the opposite end of the belt line would not be removed to train
the belt. (Tr. 74:18–25.) Thus, while miners may need to remove a different
piece of guarding in a different area of the mine to train the 5B belt, miners
would not do this in the area around the 5B drive roller. Therefore, I am unpersuaded
that this evidence lowers the negligence.

No evidence
suggests that CONSOL was aware of the missing guarding while the belt operated and
willfully ignored the violation. Still, CONSOL should have known of the
violative condition since one of its employees or contractors removed the
guarding. ( Tr.
53:6–54:25; Ex. GX–1-3.) Moreover, Inspector Detrick observed that a reasonable
preshift examiner on the midnight shift would expect the belt line to run again
soon after the completion of repairs to the torn conveyer belt, and therefore
should have noticed and reinstalled the missing guarding. (Ex. GX–1-3; Tr. 79:9–17.);
see 30 C.F.R. § 75.360(b)(11)(v) (guarding moving machine parts).

I determine that
CONSOL should have known of the violative condition, but there were mitigating circumstances. Therefore, I conclude
low negligence is appropriate.

D.        Penalty

The Secretary has
proposed a penalty of $298.00. The Commission is not
bound by the Secretary’s proposal and reviews penalty assessments de novo .
Mach Mining, LLC v. Sec’y of Labor , 809 F.3d 1259, 1263–64 (D.C. Cir.
2016). Under section 110(i) of the Mine Act, I must consider six criteria in
assessing a civil penalty: (1) the operator’s history of previous violations;
(2) the appropriateness of the penalty relative to the size of the operator’s
business; (3) the operator’s negligence; (4) the penalty’s effect on the
operator’s ability to continue in business; (5) the violation’s gravity; and
(6) the demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of a violation. 30 U.S.C. § 820(i).

CONSOL is a large
operator with a low to moderate violation history. In the fifteen months
preceding the issuance of this citation, MSHA issued to CONSOL’s Harvey Mine three
violations of section 75.1722(a) that became final orders of the Commission. (Exs.
GX–1-1, GX–9-1, GX–9-6.) I determined CONSOL’s negligence to be low. See
discussion supra Part V.C. CONSOL has not alleged that the proposed
penalties would adversely affect its ability to continue in business. I also determined
the gravity of the violation to be S&S, the number of persons affected to
be one, the likelihood of injury as reasonably likely, and the expected severity
as lost workdays or restricted duty. See discussion supra Part V.B.
Finally, CONSOL demonstrated good faith by quickly installing the missing guard
to comply with the cited standard. (Tr. 75:16–22.) In considering the criteria
set forth in section 110(i) of the Mine Act and all the relevant facts, I
hereby assess a penalty of $298.00.

VI.
  ORDER

In light of the
foregoing, it is hereby ORDERED that Citation No. 9203483 is AFFIRMED .

Respondent
CONSOL
Pennsylvania Coal Company, LLC is hereby ORDERED to PAY a penalty of $298.00
within 40 days of this decision. [7]

/s/
Alan G. Paez

Alan G. Paez

Administrative
Law Judge

Distribution: (Via
U.S. Mail and Electronic Mail)

Matthew R. Epstein, Esq., Office of the Regional Solicitor, U.S.
Department of Labor,

1835
Market Street, Mailstop SOL/22, Philadelphia, PA 19103-2968 ([email protected])

Patrick
W. Dennison, Esq., Fisher & Phillips LLP, 6 PPG Place, Suite 830,
Pittsburgh, PA 15222-5425

([email protected])

/gw

[1] In this decision,
the hearing transcript, the Secretary’s exhibits, and Respondent’s exhibits are
abbreviated as “Tr.,” “Ex. GX–#,” and “Ex. R – #,”
respectively.

[2] Upon receiving the Secretary’s motion for a partial
settlement, I issued a Decision Approving Partial Settlement on September 16,
2021, resolving three of the six citations contained in consolidated Docket
Nos. PENN 2021-0047 and PENN 2021-0058. Thereafter, at the hearing the parties
entered a settlement on the record for two section 104(a) citations, one of
which disposed of the sole remaining citation in Docket No. PENN 2021-0058. I issued my Decision Approving Second Partial Settlement
for the two citations on November 24, 2021, resulting in the full disposition
of Docket No. PENN 2021-0058 .

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

[4] Section
75.1722(a) provides: “Gears; sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar
exposed moving machine parts which may be contacted by persons, and which may
cause injury to persons shall be guarded.” 30 C.F.R. § 75.1722(a).

[5]
The citation
only considers the violation of the missing guarding around the 5B belt drive
roller. (Ex. GX–1-1.) Therefore, I do not consider the possibility of direct
injury from contact with the overhead belt in my S&S analysis. Nevertheless,
Mathies requires an analysis of the circumstances as the inspector found
them at the time of the violation. Peabody , 42 FMSHRC at 382.    

[6] CONSOL wisely
requires its miners to lock-out and tag-out the belt, or turn off the machine
and render it inoperable, before proceeding under the belt. (Tr. 99:22–25.) While
a prudent miner should lock-out and tag-out the belt line before walking under
the belt, “[t]he Court cannot assume that miners would exercise caution.” CONSOL
Pa. Coal Co. , 43 FMSHRC 145, 148 (Apr. 2021). Inspector Detrick notes
“there [are] accidents that happen every day because people weren’t prudent in
their personal safety,” as well as “numerous fatalities” in the mining industry,
that lead him to believe that miners would traverse under a belt without turning
off, locking out, and tagging out the belt. (Tr. 62:21–23, 63:4–10); see
Sec’y
of Labor v. Ohio Valley Coal Co. , 359 F.3d 531 (D.C. Cir. 2004) (noting
miner’s failure to turn off machine when assessing for maintenance led to
severing of his arm and subsequent fatality). Here, however, CONSOL’s lock-out
and tag-out policy is a redundant safety measure and is therefore irrelevant to
the S&S analysis. Sec’y of Labor v. Consolidation Coal Co. , 895 F.3d
113, 116, 118 (D.C. Cir. 2018) (holding safety measures, including company
policy not to access area of unsupported roof, are irrelevant to S&S
analysis).

[7] 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.