Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Consol's underground Bailey Mine for a missing keeper pin on a longwall shield, cracked light globes on a continuous miner, and failure to plot a drill hole that penetrated the coalbed. Judge Michael Young found that the missing pin created a projectile hazard and the cracked globes could contribute to a methane ignition, and he affirmed both violations as significant and substantial with penalties of $383 and $355. He also affirmed the mapping violation because Consol had not accurately marked the hole before mining through it. The judge found that Consol had used all available means to search for the suspected well, reduced negligence on that citation from low to none, and assessed $100. Consol was ordered to pay $838 in total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(a), 75.503, and 75.1200-1(d)
• Outcome: All three citations were affirmed, negligence on the mapping citation was reduced to none, and total penalties of $838 were assessed.
• Key point: Reasonable but unsuccessful efforts to locate a suspected well supported eliminating negligence, even though the inaccurate mine map still violated the standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL

COMPANY,
LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2021-0084

A.C.
No. 36-07230-534033

Mine:
Bailey Mine

DECISION AND ORDER

Appearances:               Matthew
R. Epstein, Office of the Solicitor, U.S. Department of Labor,

Philadelphia,
Pennsylvania, for the Petitioner

Kenneth
Polka, CLR, U.S. Department of Labor, MSHA, Mt. Pleasant,

Pennsylvania,
for the Petitioner

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

Pennsylvania,
for the Respondent

Before:  Judge
Young

SUMMARY

Citation No. 9204245, 30 C.F.R. §
75.1725(a): Failure to maintain machinery in safe operating condition. A horizontal keeper pin, used to
retain a vertical breakaway (“shear”) pin, was missing from an operational headgate
shield.

Facts                                                                                        p.
4 (Slip Op.)

Fact of violation          Affirmed                                             p.
5

S&S                             Affirmed                                             p.
8

Negligence                  Low                                                     p.
11

Penalty                                    $383.00                                               p.
12

Citation No. 9204250, 30 C.F.R. § 75.503:
Failure to maintain electrical face equipment in permissible condition. 120-volt area light globes were
cracked on an operational continuous miner located in a crosscut.

Facts                                                                                        p.
12

Fact of violation          Affirmed                                             p.
13

S&S                             Affirmed                                             p.
14

Negligence                  Low                                                     p.
18

Penalty                                    $355.00                                               p.
18

Citation No. 9204257, 30 C.F.R. §
75.1200-1(d): Failure to plot a drill hole that penetrated the coalbed being
mined. Operator had
not accurately marked an alleged gas well through which it inadvertently cut.

Facts                                                                                        p.
19

Fact of violation          Affirmed                                             p.
19

Negligence                  None                                                   p.
20

Penalty                                    $100                                                    p.
21

I.                   
INTRODUCTION

This
case is before me upon petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of

1977, as
amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are three citations
under section 104(a), issued to Respondent, Consol Pennsylvania Coal Company,
LLC (“Consol” or “Respondent”). [1] The parties
presented testimony and documentary evidence at a video conference hearing on February
1, 2022, and filed post-hearing briefs.

Consol
owns and operates the Bailey Mine, located in Greene and Washington counties,
Pennsylvania. Jt. Stips. 1, 2; S. Post-Hr’g Br. at 1, 2 (Apr. 13, 2022) (“S.
Br.”). The mine is an underground coal mine and is subject to the jurisdiction
of the Mine Act and the Commission. Jt. Stips. 3, 4; S. Br. at 1–2. Citation
No. 9204245 alleged that Respondent failed to ensure the presence of a keeper
pin, risking a gate shield pin becoming a projectile. Citation No. 9204250
alleged that Respondent failed to maintain 120-volt area light globes in
permissible condition, risking methane ignition. Citation No. 9204257 alleged
that Respondent failed to accurately plot a drill hole on its mine map. For
reasons set forth below, I AFFIRM all three citations. I MODIFY
the degree of negligence for Citation No. 9204257 from “low” to “none.”

II.        STANDARDS

A.        Violation

The
Secretary must prove the elements of an alleged violation by a preponderance of
the evidence. See Jim Walter Res., Inc. , 28 FMSHRC 983, 992 (Dec. 2006);
RAG Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000). Mine
operators are generally strictly liable for mandatory safety standard
violations. See Freeman United Coal Mining Co. v. FMSHRC , 108 F.3d 358,
361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc. , 33 FMSHRC
1759, 1764 (Aug. 2011).

B.        Gravity

The
likelihood contemplated is that of the expected resulting injury. The severity
evaluation assumes the occurrence of the hazard. See Consolidation Coal Co. ,
18 FMSHRC 1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on
“the reasonable likelihood of serious injury,” with gravity inquiry, which
focuses on “the effect of the hazard if it occurs”) (emphasis added).

The
Secretary defines a severity assessment of “lost workdays or restricted duty”
as “[a]ny injury or illness which would cause the injured or ill person to lose
one full day of work or more after the day of the injury or illness, or which
would cause one full day or more of restricted duty.” 30 C.F.R. § 100.3(e)
(2022). [2]

C.        Significant
and Substantial (“S&S”)

A
violation is properly designated as S&S if, “based upon the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Mathies Coal Co. , 6 FMSHRC 1, 3–4 (Jan. 1984) (citing Cement
Div., Nat’l Gypsum Co. , 3 FMSHRC 822, 825 (Apr. 1981)). The four
elements required for an S&S finding are expressed as follows:

(1) [T]he 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 the 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) (integrating the refinement of the second Mathies
step in Newtown Energy, Inc. , 38 FMSHRC 2033, 2037 (Aug. 2016)).

An
S&S determination must be based on the assumed continuation of normal
mining operations. See Consol Pa. Coal Co. , 43 FMSHRC 145, 148 (Apr.
2021) (citing U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574 (Jan. 1984))
(“A determination of ‘significant and substantial’ 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.”).

D.        Negligence

Judges
may use a traditional negligence analysis, rather than relying upon Part 100
definitions. Brody Mining, LLC , 37 FMSHRC 1687, 1701–02 (Aug. 2015)
(citing Jim Walter Res., Inc. , 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg
Stone Co. v. FMSHRC , 736 F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100
regulations apply only to the proposal of penalties by MSHA and the Secretary
of Labor; under both Commission and court precedent, the regulations do not
extend to the independent Commission, and thus the MSHA regulations are not binding
in any way on Commission proceedings.”). The reasonably prudent person standard
should be that of one “familiar with the mining industry, the relevant facts,
and the protective purposes of the regulation.” Brody Mining, LLC , 37
FMSHRC at 1702.

E.        Penalty

The
Commission considers the following factors, from Section 110(i) of the Act, in assessing
penalties under the Act:

[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) (2006).

III.       CITATION NO. 9204245

A.        Factual
Findings

This
citation was issued by Inspector Walter Young on March 1, 2021. Ex. GX-1, DOL

1. He assessed the gravity as “reasonably likely,” “lost workdays or
   restricted duty,” “S&S,” and one person affected. Id. He assessed
   negligence as “low.” Id. The description read:

The Operator failed to maintain the
company number 3 gate shield located on the 8L Longwall Working Section (006-0
MMU), inby the number 27 crosscut in safe operating condition. The Horizontal
Keeper Pin to retain the vertical (breakaway) pin in place was missing. This
condition will permit the vertical breakaway pin or pieces of the vertical
breakaway pin to become airborne and injury [sic] person when its fails. Multiple
persons are in the area when the shearer cuts out at the headgate and during
times when the headgate pan line is pushed. The Operator immediately removed
the shield from service until the condition could be corrected.

Id. While taking a methane reading
during a spot inspection, Inspector Young noticed that a horizontal keeper pin
was missing from the clevis [3] on a headgate
shield. Tr. 31, 32. Gate shields have more tonnage capacity than line shields
and exert more than 30 tons of pressure. Id. at 38, 41. He described the
purpose of the pin as keeping the vertical shear pin in place if it breaks as

designed,
enabling it to safely fall out the bottom of the clevis. Id. at 33, 36; see
Ex. GX-3, DOL 021. Shear pins break and need to be replaced frequently. Tr. 47. [4]

Inspector
Young; Justin Jones, Consol’s former safety inspector;
and James Denham, its maintenance supervisor , all acknowledged that the
vertical shear pin is intended to break at designated points to protect the
whole shield system. See id. at 44, 52, 107–08, 142; Ex. GX-2, DOL 020. Inspector
Young concluded that a shear pin can work its way up out of the clevis under
pressure from shield operation, and without the keeper pin, it can become a
projectile. Tr. 33–34, 42. He testified that he personally observed a miner
injured—he suffered a face laceration—by such occurrence at a headgate, and
that others have been hit without injury. Id. at 42.

Messrs.
Jones and Denham contend that the shear pins only break under adverse
conditions—shield twisted or hung up on a rock, uneven bottoms, or muddy
conditions. Id. at 109, 144. Neither has seen or heard of a broken shear
pin becoming a projectile. Id. at 109, 110, 111, 146–47. Neither are
aware of any injury reports describing such an occurrence, and Mr. Jones
testified that he searched and found none since 2007. Id. at 111, 113,
147.

Messrs.
Jones and Denham testified, and Inspector Young acknowledged, that miners
typically operate these shields manually from two shields away—seven-to-eleven
feet from the possible pin hazard. Id. at 68, 116, 149. Inspector Young
contended that a miner could be struck within eight feet, enabling injuries
such as lacerations or eye injuries. Id. at 66. He also described the
area surrounding gate shields as a transition area—a walkway where many people
stand while operating the shields. Id. at 42, 45.

B.        Disposition

1.         Violation

The
cited standard states, “Mobile 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.” 30 C.F.R. § 75.1725(a)
(2022). The Secretary argues the machinery was not maintained in safe operating
condition because Respondent failed to safely secure the shear pin. S. Br. at

7. Respondent, however, argues the missing keeper pin does not itself make the
   machinery unsafe. Resp’t’s Post-Hr’g Br. at 5 (Apr. 13, 2022) (“Resp’t Br.”). It
   refers to several other standards, argued as comparable to the cited standard,
   to support its assertion. The cited cases, however, are either inapposite or
   unnecessary to the decision here.

First,
Respondent asserts that “more than mere presence of a condition [is required]
to constitute a violation despite strict liability.” Id. The compared
provisions are significantly different. Section 75.323 requires ventilation
system adjustments or work stoppages when a stated level of methane is present.
See 30 C.F.R. § 75.323(b)(1)(ii)–(iii) (2022); Resp’t Br. at 5 n.3. The
standard here does have a similar mitigating action requirement, but it also
requires that machinery be maintained in safe operating condition—it does not
only require action when an unsafe operating condition exists. [5]
The provision and cited cases are, therefore, inapposite to my decision here.

Next,
Respondent compares the cited standard with Section 56.11001 to argue that a
violation does not occur simply because an unsafe condition exists. See
Resp’t Br. at 6. First, a Section 56.11001 violation does in fact occur where
an unsafe condition exists, and the cited cases do not support contention to
the contrary. [6] The
authority, if applied to a Section 75.1725 violation, would actually support a
violation finding where the Secretary demonstrates an improper method of
maintaining machinery—e.g., not having all the components present and
serviceable. This authority is, therefore, inapposite to my decision here.

Finally,
Respondent cites multiple ALJ decisions on Section 75.202(a) [roof fall
protection] to argue that the provision here should be analyzed as a
performance-based standard—requiring evaluation of the reasonableness of the
operator’s efforts. See id. These decisions do not control my decision
here. More importantly, they are unnecessary because there is Commission
precedent that directly supports the evaluation of “unsafe operating condition”
based on a reasonably prudent person standard.

The
Commission has established that the standard for a Section 75.1725(a) violation
is whether a reasonably prudent person would recognize the hazard, stating:

[I]n deciding whether machinery or
equipment is in an unsafe operating condition, the alleged violative condition
is measured against the standard of whether a reasonably prudent person
familiar with the factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry, would recognize
a hazard warranting corrective action within the purview of the applicable
regulation.

Spartan
Mining Co. , 30
FMSHRC at 711 (citing Ala. By-Prods. Corp. , 4 FMSHRC 2128, 2129 (Dec.
1982)).

The
Commission has affirmed a violation of this standard for missing components. See
Martinka Coal Co. , 15 FMSHRC 2452, 2456 (Dec. 1993) (affirming a Section
75.1725(a) violation for missing belt rollers where substantial evidence from
two witnesses showed the components were missing). The Commission has also
found a violation of another unsafe condition standard by comparing it to the
identical language in Section 75.1725(a). See So. Ohio Coal Co. , 13
FMSHRC 912, 915–16, 916 n.2 (June 1991) (quoting Ala. By-Prods. Corp. , 4
FMSHRC at 2129) (“Substantial evidence supports the judge’s finding that the
two broken track pads presented an unsafe condition.”).

In
Martinka Coal Co. , a belt structure was missing rollers, causing the
belt to rub against the structure. 15 FMSHRC at 2456. The Commission affirmed
the violation because of the presence of combustible accumulations and an
ignition source. Id. In So. Ohio Coal Co. , the Commission found
it sufficient that the inspector and operators testified that the
condition—broken track pads—was unsafe. 13 FMSHRC at 916. It concluded that
“safe operating condition” means that a machine can be used safely by miners. Id.
at 915.

Therefore,
whether missing or broken components are involved, there still must be a danger
posed to miners by use of the cited machinery. The Commission recently affirmed
two Section 75.1725(a) violations as S&S against this operator where cables
were found to be in bad condition and posed a risk of snapping or dropping
loads. Consol Pa. Coal Co. , 43 FMSHRC at 150–51, 153–54. There, a cable
was found to not be connected as designed—merely wrapped around the reel. Id.
at 150.

Here,
the circumstances are sufficiently similar. The headgate shield clevis was
missing a component—the horizontal keeper pin. The Secretary has presented
credible evidence that the shear pins, which are designed to break, have been
projected from the clevis upon breaking. The inspector noted one known injury
where he was present and multiple reports from other miners of the hazard
occurring without causing injury.

Respondent
challenges an unsafe finding by arguing that it is unlikely that the pin would
be projected. See Resp’t Br. at 6–7. Respondent borrows from its S&S
argument a further assertion that an injury is unlikely because of likely miner
distance from the hazard and lack of reports about injuries from projectile
shear pins. Id. at 7–8.

I
find that Inspector Young’s testimony is credible and reject the operator’s contentions.
Respondent attempted to rebut the noted occurrence with testimony from Mr.
Jones that he could not find any such reports going back to 2007. Tr. 111. Inspector
Young, however, has been a MSHA inspector since 2006. Id. at 24. Thus,
the event, which occurred while he was a foreman, id. at 61, would have
occurred prior to the earliest year checked by Respondent.

In
summary, the machinery was missing a component. That component is intended to
prevent the shear pin from moving upward out of the clevis. There is credible
testimony that shear pins can move upward and can be projected when broken
under heavy pressure. I need not address here whether there is a confluence of
factors making an injury reasonably likely. It is sufficient for purposes of
the violation finding that a dangerous condition could be created by use of the
cited machinery with a missing component. I therefore affirm the violation.

2.         Gravity

a.         Likelihood

The
Secretary asserts that the hazard is reasonably likely. I have found that
credible evidence exists to support that the hazard—a projectile shear pin—could
occur. See supra Section III.B.1. I therefore affirm the determination
of likelihood in my penalty assessment.

b.         Severity

The
Secretary asserts that the severity of the contemplated injury is lost workdays
or restricted duty. If an injury-causing hazard—a projectile shear pin
contacting a miner—occurred, it could reasonably result in an injury that would
cause a miner to miss at least a full day of work. Inspector Young testified to
an event that caused a face laceration. Further, I find credible that an object
projected with such force could cause a laceration or damage to an eye. I
therefore affirm the severity as characterized by the inspector.

c.         Number
of Persons Affected

The
inspector assessed that only one miner would be affected by the hazard. I agree
that only one miner is likely to be contacted by a piece of a shear pin
projected from the clevis. I thus affirm the inspector’s enumeration of persons
who could be affected.

3.         S&S

I
affirm the S&S designation for the following reasons.

a.         Step 1: The violation
has been established.

A
missing component from machinery, and the attested possibility that the
component intended to be controlled by the missing component could cause an
injury, is sufficient to constitute an underlying violation of a mandatory
safety standard for the purposes of Mathies Step 1. See supra
Section III.B.1.

b.         Step 2: The violation
was reasonably likely to result in the discrete safety hazard against which the
regulation is directed—a shear pin breaking under headgate pressure and
becoming a projectile.

Mathies Step 2 is a two-step process: (1)
determine the specific hazard the standard is aimed at preventing; and (2)
determine whether a reasonable likelihood exists that the hazard against which
the mandatory standard is directed will occur. Newtown Energy, Inc. , 38
FMSHRC at 1868. This finding must be based on “the particular facts surrounding
the violation.” Northshore Mining Co. , 38 FMSHRC 753, 757 (2016).

Here,
the standard requires that machinery be maintained in a condition that enables
its safe use by miners. See So. Ohio Coal Co. , 13 FMSHRC at 915. The
hazard the standard aims to prevent is one resulting from the dangerous
operation of the cited machinery. The Secretary provided a plausible specific
hazard posed by the missing component. Therefore, the specific hazard here is
the shear pin becoming a projectile.

The
remaining issue is whether a reasonable likelihood exists that the shear pin
will become a projectile under pressure from the headgate. Respondent is
correct that the likelihood of hazard should be based upon the “particular
facts surrounding the violation.” Resp’t Br. at 9 (citing Newtown Energy,
Inc. , 38 FMSHRC at 2038). I find that the hazard is reasonably likely to
occur.

The
Secretary provided credible testimony that shear pins have broken and become
projectiles. Regarding particular facts, the standard here was cited on a
headgate shield. Inspector Young testified that the observed injury-causing hazard
occurred while the miner was pushing out the headgate. Tr. 42.

I
acknowledge that multiple Respondent witnesses testified that they have not
seen this happen, and more importantly, that if it were to occur, it would
require adverse conditions. The Commission recently vacated an S&S finding
at Step 2 because exposure to a hazard was not likely. See Consol Pa. Coal
Co. , Docket No. PENN 2019-0008, 2022 WL 489572, at 6–7, 9 (Feb. 10, 2022)
(reasoning that contact with a damaged cable would require it to be knocked
down from its hanging hooks, but there was no evidence that it could be easily
knocked to the floor). This supports a failure at Step 2 if nothing in the
record establishes the likelihood that the conditions enabling a projectile pin
will occur. That is not the case here, however.

I
find that an event that has occurred in the past is reasonably likely to occur,
as a matter of logic and common sense. See United Steel Mining Co. , 7
FMSHRC 1125, 1130 (Aug. 1985) (accepting testimony that the mine had
experienced methane ignitions in the past to conclude that “evidence supports a
finding that there was a reasonable likelihood that the hazard . . . could
result in the occurrence of an ignition”); Consolidation Coal Co. , 6
FMSHRC 34, 38 (Jan. 1984) (affirming an S&S finding because evidence of bad
roof and testimony of past roof falls made the occurrence of the hazard
reasonably likely) (emphasis added). The inspector has not relied upon
conjecture of speculation but on a previous event with which he was personally
familiar.

I
credit Inspector Young’s testimony that he has witnessed such an occurrence at
a headgate shield , and that there have been other reports of projectile pins. [7]
Also, assuming continued mining operations, it is possible that adverse
conditions could present with a keeper pin still absent. Crediting testimony
about the occurrence of the hazard in the past gives rise to

the
potential that those conditions will converge again in the future. I therefore
find that the hazard was reasonably likely at Step 2. [8]

c.         Step 3: It is reasonably
likely that projectile shear pin contact with a miner would cause an injury—laceration
or eye damage.

Mathies Step 3 asks whether the hazard,
not the violation itself, is reasonably likely to cause an injury. Musser
Eng’g, Inc. , 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the
likelihood of injury, judges must assume the occurrence of the hazard. See
Newtown Energy, Inc. , 38 FMSHRC at 2037.

One only reaches Step 3
of the Mathies analysis after determining that the hazard is reasonably
likely to occur. I thus assume the occurrence of the hazard—a shear pin
breaking under the pressure of the headgate and becoming a projectile. The
Secretary provided testimony that such a pin could contact a miner and cause a
laceration. This alone is insufficient for a finding that an injury is
reasonably likely to occur. Respondent correctly asserts that Commission
precedent requires more than a finding that there is a “potential” that an
injury “could” occur. Resp’t Br. at 8 (citing Wolf Run Mining Co. , 32
FMSHRC 1669, 1677 (Dec. 2010); Texasgulf Inc. , 10 FMSHRC 498, 500–01
(Apr. 1988)). As with Step 2, I must evaluate whether an injury is reasonably
likely to occur based on the surrounding circumstances.

The Secretary is
correct that Respondent cannot rely on safety measures or miner
precaution—e.g., helmets and protective clothing—to defend at Step 3. See
S. Br. at 9 (citing Sec’y of Lab. v. Consolidation Coal Co. , 895 F.3d
113, 116, 118 (D.C. Cir. 2018)). There must, however, be evidence on the record
that miners would be in the area during operations to be injured by the hazard.
See Consol Pa. Coal Co. , 43 FMSHRC at 152, 153 (demonstrating that
miners worked at the site of the cited equipment, and that others worked
nearby). The record must also demonstrate that one or more miners would have
been at risk of injury from the discrete hazard. See Peabody Midwest Mining,
LLC, 42 FMSHRC at 387–88 (acknowledging that evidence established that more
miners than could be accommodated by refuge chambers would be present on
section at shift change, but finding that the absence of evidence of any mining
activities or other possible ignition source during shift change negated
potential for injury).

The Secretary’s brief did
not focus on the possibility that other miners beyond the miner moving the
shields could have been exposed to the hazard. See S. Br. at 11 (relying
mostly on the average distance between the miner using the remote and the
shield being moved). However, Inspector Young testified in two places about the
presence of miners. First, he testified that gate shields are in transition
areas that are in a walkway, but he specified in the same sentence that it is
“where people stand whenever they push and pull these shields.” Tr. 42. This
testimony does not explicitly provide that there are miners other than the
shield operator exposed to the hazard.

Inspector Young later
explained:

[T]here’s [sic] a whole lot of
people exposed, especially at the head gate [sic] when they cut out. People
just don’t run off the base and cut out and come back on to the face. The
shields are pulled, the guys are standing up in the transition area and
underneath the gate shields, and these shields – and then the pan line is pushed,
and these guys come in and cut out.

Id. at 45. This testimony identifies other
miners present during shield operation. Therefore, I assume the presence of
both the shield operator and other miners while the shield is operated during
continued normal mining operations.

I accept Mr. Denham’s
testimony that miners are usually further away—possibly ten meters—while
operating gate shields because they are usually moving multiple shields. Id.
at 149. All witnesses nevertheless testified that miners at this mine generally
operate shields manually from two shields away at a distance of seven-to-eleven
feet.

Combining the
likelihood that a miner would be within the shorter testified distance, the
testimony that a projected pin has flown eight feet to injure a miner, and the lack
of contrary testimony to the inspector’s claim that other miners are in the
area during shield operation, I find that an injury is reasonably likely to
occur.

d.         Step 4: It is reasonably
likely that such an injury would be of a reasonably serious nature.

An inspector’s
conclusion that a possible injury is of a reasonably serious nature has been
held sufficient for Mathies Step 4. See Consol Pa. Coal Co. , 43
FMSHRC at 149 (finding it sufficient that the inspector characterized the
potential injury as “serious” and noted potential injuries). The Commission
also does not require a specific type of injury for it to be considered
serious. See S&S Dredging Co. , 35 FMSHRC 1979, 1981–82 (July 2013).

Here, the Secretary
provided credible, undisputed testimony that the hazard could result in
lacerations or eye damage. Respondent focused on the likelihood of the hazard
and injury occurring, see Resp’t Br. at 11–14, only making conclusory
statements that any resulting injury would not be of a serious nature, see
id. at 13, 14. I find it is reasonably likely that an injury that could
include lacerations or eye damage would be reasonably serious. [9]

4.         Negligence

I
find that the negligence was properly characterized by the inspector as “low.” Those
charged with inspecting the shields are familiar with the mining industry and
relevant facts. They should have been familiar with the protective purpose of
ensuring the keeper pins were present. I therefore find that a reasonably
prudent person in their position should have known about the violative
condition and acted to remedy it.

The
Secretary argues that this is a result of moderate negligence because the
operator knew that these pins commonly break and failed to remedy a violation
that it should have assumed. See S. Br. at 11–12. Respondent argues that
no negligence was demonstrated because no one knew about a broken pin. See
Resp’t Br. at 14. I disagree with both.

The
inspector appropriately noted that these pins consistently break, and that the
condition could have occurred between the last inspection and the violation. I
credit the inspector’s explanation, and I agree to a limited degree with the
Secretary—this is a condition Respondent must work to continually remedy to
maintain the machinery in a safe operating condition. I therefore affirm the
negligence finding.

5.         Penalty

The
Secretary has entered Respondent’s violation history [MSHA Directorate of
Assessments, Assessed Violation History Report] into evidence. See Ex. GX-12.
Its history consists of twenty-nine repeat violations during the inspection
period. I have reviewed Respondent’s general and repeat violations, and I find
that the Secretary has properly considered Respondent’s violation history in
his calculation. I agree that the Secretary has properly evaluated the size of
the mine in his calculation. Neither party has stated that payment of this
penalty will affect Respondent’s ability to continue in business, and the
minimal penalty amounts do not support such a conclusion.

The
proposed penalty of $383.00 was based, in part on the negligence [low] and
gravity [reasonably likely] assessed in the citation. I have affirmed the
reasoning underlying the Secretary’s assessments. The citation was terminated immediately
by installation of a keeper pin. Thus, Respondent demonstrated good faith in
achieving rapid compliance following citation. Having affirmed the citation as issued,
in consideration of the six factors in Section 110(i) of the Act, I assess a penalty
of $383.00, as proposed by the Secretary.

IV.       CITATION NO. 9204250

A.        Factual
Findings

This
citation was issued by Inspector Young on March 3, 2021. Ex. GX-4, DOL 022. He
assessed gravity as “reasonably likely,” “lost workdays or restricted duty,”
“S&S,” and one person affected. Id. He assessed negligence as “low.”
Id. The description read:

The Company Number 33, Continuous
Miner (s/n- 033K, 2G-4022A) located approximately 130 feet inby the number 39
crosscut, in the number 3 entry on the 9L Working Section (007-0 MMU) was not
maintained in permissible condition. Four 120 A.C. volt area light globes were
cracked. The 2 area lights inby the side bolters contained one or more cracks
which ranged from 1.5 to 3 inches in length, but the body of the globes could
not be distorted by hand pressure. The double ended area light (2 globes) directly
below the rib bolter on the operators [sic] side were badly damaged by being
covered with cardboard and had overheated. These light globes contained
numerous, large spider web like [sic] cracks going in multiple directions, one
contained a hole measuring 0.25 inches wide by 0.375 inches long. Both of these
lights could easily be distorted by hand pressure from the heat damage done to
them from them being unnecessarily be [sic] covered with the cardboard. This
condition permits the ambient mine atmosphere to freely enter the explosion
proof electrical lighting fixtures. Additional confluence of factors are
included in citation number 9204251 for the methane monitor not being
maintained in proper operating condition and methane being liberated in this
working section were used in determining this condition to be Significant and
Substantial. The Operator immediately removed the machine from service until
the conditions could be corrected. this [sic] mine liberates 10,835,416 cubic
feet of methane every 24 hours.

Id. , DOL 022–23. He visited the mine
for an E02 spot inspection because Bailey Mine liberates more than ten million
cubic feet of methane every twenty-four hours, and it was on a five-day Section
103(i) inspection regimen. Tr. 28, 71, 76. Ventilation was working properly
that day. Id. at 93.

Inspector
Young found 120-volt light globes with cracks and holes. Id. at 73. He
noted that the damage could have occurred since the last required exam several
days prior. Id. at 82. He simultaneously noted that the section was
liberating methane, obtaining a reading of 0.25 percent in the Number 3 Entry. Id.
at 77. Methane typically increases when the continuous miner begins cutting
coal, and the miner was inby a crosscut for operation. See id. at 94–95;
Ex. GX-4, DOL 022.

He
also issued a citation for an improperly calibrated methane monitor on the
continuous miner with the violative globes. See Tr. 78; Ex. GX-5. The
miner was deenergized in a test when the monitor read 1.5 percent. Tr. 88–89,
122–23. Inspector Young testified, and Mr. Jones acknowledged, that the monitor
should have read 2.5, but only read 1.7, when the miner shut down. Id.
at 89, 123.

No
witnesses were aware of any electrical faults within the enclosure at the time
of inspection. Id. at 133, 176. Respondent provided photographic
evidence—taken of the continuous miner outside the mine, several months after
the citation—that the lights in the cited globes were likely LED rather than
fluorescent or incandescent. Id. at 164, 166, 174; Ex. R-7, CONSOL 0038,
0041. Inspector Young acknowledged that he did not know what type of lights
were in the globes, only that they were 120-volt. Tr. 87.

John
Baker, Consol’s electrical engineer, testified that LED lights are more efficient
but still radiate heat. Id. at 160, 163. He recognized that, while
close, the circuit in question is not intrinsically safe per the graph provided
by Respondent. Id. at 170–72; Ex. R-8, CONSOL 0042. On
cross-examination, he admitted that the dot on the graph is on the “explosive
side” of the curve, that one cannot predict when an electrical circuit will
fail, and that the cited globe was “not mechanically intact”—i.e., not
explosion proof. Tr. 174, 176–77.

B.        Disposition

1.         Violation

The
cited standard states, “The operator . . . shall maintain in permissible
condition all electric face equipment required by . . . [§] 75.504 to be
permissible which is taken into or used inby the last open crosscut of any such
mine.” 30 C.F.R. § 75.503 (2022). Permissibility requirements “ensure that
ignitions occurring within enclosures on mining equipment which contain
electrical circuits will not escape into the mine atmosphere.” Knox Creek
Coal Corp. , 36 FMSHRC 1128, 1131 (May 2014).

Respondent
made only a cursory challenge to the violation finding. See Resp’t Br.
at 16 (“If a Violation Existed, the Citation was Improperly Designated as
S&S . . . .”). The Secretary, nevertheless, still has the burden of proving
the violation. The Secretary provided credible testimony that cracks and holes
existed in the cited globes. Respondent’s electrical engineer acknowledged that
such conditions make the globes “not mechanically intact.” He further testified
that an enclosure must be mechanically intact in order to be explosion proof.

I
credit the testimony of both witnesses and find that the cited enclosures were
not mechanically intact. Therefore, they were not explosion proof. Because
permissibility is meant to prevent ignitions within enclosures from escaping,
these enclosures were not permissible. Finally, the offending continuous miner
was taken and used 130 feet inby the described crosscut. I therefore affirm the
violation.

2.         Gravity

a.         Likelihood

The
Secretary asserts that the hazard is reasonably likely. I have found that
credible evidence exists to support the potential ignition in a light fixture
penetrating a compromised globe. See supra Section IV.B.1. I therefore agree
with the determination of likelihood.

b.         Severity

The
Secretary characterized the severity of the contemplated injury as lost
workdays or restricted duty. The Secretary provided credible testimony that
such a hazard could cause external and internal burns, broken bones, or
concussions. Tr. 81. I find that such injuries would reasonably result in an
injury that would cause a miner to miss at least a full day of work. I
therefore affirm the inspector’s characterization of severity.

c.         Number
of Persons Affected

The
inspector assessed that only one miner would be affected by the hazard. While I
think it likely that more than one miner would be working in the vicinity of
the offending machine when the hazard was possible, see id. (“Usually
it’s the bolters closest to the facing that take the brunt . . . .”)
(emphasis added), I defer to the inspector’s judgment as to the number of
persons affected.

3.         S&S

I
affirm the S&S designation for the following reasons.

a.         Step
1: The violation has been established.

The
failure to maintain the mechanical integrity of light fixtures on equipment
used inby the cited crosscut is sufficient to constitute an underlying
violation of a mandatory safety standard for the purposes of Mathies
Step 1. See supra Section IV.B.1.

b.         Step 2: The violation
was reasonably likely to result in the discrete safety hazard against which the
regulation is directed—ignition of the mine atmosphere.

A
methane ignition outside of the enclosure is the discrete safety hazard against
which the standard intended to protect. The reasonable likelihood of this
hazard occurring requires two things: the reasonable likelihood that an
explosion will occur in the violative enclosure, and the reasonable likelihood
that the escape of that explosion will ignite the mine atmosphere. See Knox
Creek Coal Corp. v. Sec’y of Lab. , 811 F.3d 148, 164 (4th Cir. 2016)
(quoting Texasgulf, Inc. , 10 FMSHRC at 501) (“When the Commission in Texasgulf
required the consideration of a “confluence of factors” in making an S & S
determination, it was specifically concerned with whether there was ‘a
sufficient amount of methane in the atmosphere surrounding the impermissible
gaps and ignition sources.”).

i.          There is sufficient
evidence in the record to find that an explosion within the enclosure was
reasonably likely.

The
violative light fixture is a 120-volt system. Tr. 75, 87, 174. Even if an LED
bulb was present, the circuit would not have been intrinsically safe. Id.
at 172; Ex. R-8, CONSOL 0042. Electrical circuits do fail without warning, and
one cannot predict when that will occur. Tr. 176, 177. In addition to the poor
condition of the globes, there was credible testimony by the inspector that
moisture, erosion, vibration, or just age can contribute to a failed circuit
that can contribute to an ignition. Id. at 75; see also Knox Creek
Coal Corp. , 36 FMSHRC at 1134 (noting similar conditions and causes for
failure that were sufficient for affirming an S&S designation).

The
Secretary relied on the fact of violation and that even LED bulbs, if present,
were acknowledged to not be intrinsically safe. See S. Br. at 12–13. Respondent
correctly notes that the reasonable likelihood of an ignition within the light
fixture is required, see Resp’t Br. at 17, but it fails to provide
adequate evidence negating this likelihood. Respondent makes three assertions
regarding the light fixture that I reject.

First,
that there would have to be a failure in the light fixture on the nonprotected
side of the light’s ballast. Id. There is sufficient evidence in the
record to conclude that the circuit could fail in the normal course of
operations. Further, such an argument would essentially negate the danger in
any permissibility violation. The purpose of the standard is to prevent the
effects of an ignition within an enclosure from reaching the outside
atmosphere. A light fixture failure must be assumed to be able to ignite
methane that naturally enters the enclosure.

Second,
that there was no evidence of electrical issues with the lights. Id. at

18. This is similarly refuted by the requirement to assume continued normal
    mining operations. There is credible testimony from both parties that such
    circuits can and do fail.

Finally,
that the LED lights allegedly present are nearly intrinsically safe—designed to
be “near the energy level that could not ignite a methane concentration.” Id.
Respondent’s own electrical engineer admitted, and the provided graph
demonstrated, that even LED lights would not move the circuit to the
intrinsically safe side of the line. Though “nearly” intrinsically safe, the
evidence supports a conclusion that the lights in question, including LED
lights, would provide a potential source for an ignition.

Even
if the use of LED bulbs was sufficient to make an ignition unlikely, there is
nothing in the record proving that LED bulbs were in fact present at the time
of the citation. The picture evidence shows what does appear to be an LED fixture
through the globes. Tr. 166; Ex. R-7, CONSOL 0041. That provided picture,
however, was taken outside the mine, months after the citation was issued, and
after the globes had been replaced. Tr. 174; Ex. R-7, CONSOL 0038, 0041. No
witness testified that LED bulbs were present at the time of the citation.

ii.         A preponderance of the
evidence establishes that an atmospheric ignition was reasonably likely.

I
have concluded that an ignition within the light fixture is reasonably likely,
and the fact of impermissibility would allow such an explosion to escape the
enclosure. Bailey Mine is a “gassy” mine that liberates more than ten million
cubic feet of methane every twenty-four hours, and the mine and cited section
were liberating methane at the time. Tr. 76–77; Ex. GX- 4, DOL 023; see also
Knox Creek Coal Corp. , 811 F.3d at 164 (recognizing that a mine liberating
more than 500,000 cubic feet of methane or other explosive gases during a
twenty-four-hour period was considered “gassy”).

In
Knox Creek Coal Corp. , the affirmed Commission decision did not disturb
the judge’s finding that the designation of a mine as “gassy” was sufficient to
find that an ignition was reasonably likely. See 811 F.3d at 154 (recognizing
the judge’s finding that “an explosion could escape the enclosures and trigger
a larger explosion in the ‘gassy’ mine atmosphere”); 36 FMSHRC at 1131
(“[G]iven the gassy nature of the mine, sudden methane buildups in the
explosive range could reasonably be expected to occur.”).

In
addition to accepting the possibility of sudden methane buildups as sufficient
for S&S, the ALJ’s decision in Knox Creek noted that methane
accumulations above five percent had previously been detected. Docket No. VA
2010-89-R, 2010 WL 5619977, at 43 (Dec. 27, 2010) (ALJ). He further accepted
testimony that “although methane could accumulate to an excessive range from
places such as the floor or the rib[s], usually it came from the face [as] coal
was cut.” Id. at 41.

Respondent
asserts that the necessary confluence of events was not present. First, it provided
testimony that there would have to be sufficient methane accumulation for a
sufficiently long time, that it would have to occur quickly enough for the
monitor to trip the miner, and that a simultaneous light fixture failure would
have to occur. See Tr. 169–70; Resp’t Br. at 17.

I
have already addressed the reasonable likelihood of circuit failure, and thus
do not accept this contention here. Next, it is true that nothing in the record
provides that the explosive level was reached in the cited entry or other
entries. See Tr. 76–77, 84–85, 93, 121–22, 124–28; Ex. GX-4, DOL 038–39;
Resp’t Br. at 17. However, such accumulation does not need to be shown at or
near the time of the violation. Per Knox Creek , it is sufficient that
the mine is “gassy,” and that buildups within explosive range are reasonably
likely to occur.

As
the Commission has consistently held, the S&S analysis must assume the continuation
of normal mining operations. See Knox Creek Coal Corp. , 811 F.3d at 156
(affirming that the judge failed to consider methane accumulation “as [it]
would have existed had normal mining operations continued”); see also 36
FMSHRC at 1132 (citing Black Beauty Coal Co. , 34 FMSHRC 1733, 1740 (Aug.
2012); Youghiogheny & Ohio Coal Co. , 9 FMSHRC 673, 677–78 (Apr.
1987)). In this context, we must assume a constant threat of explosive methane
in a gassy mine. I therefore find a reasonable likelihood that methane levels
will rise when the miner cuts coal during continued mining operations.

Finally,
I also consider that the methane monitor was shown to not be calibrated
properly, and that more methane than detected would likely be present before it
cut the miner’s power. See Tr. 78, 123; Ex. GX-5. Taken together, there
is sufficient evidence on the record to find that an ignition is reasonably
likely to occur.

c.         Step 3: It is reasonably
likely that ignition of the mine atmosphere would result in injury such as burns,
broken bones, or concussions.

The reasonable
likelihood of occurrence of the hazard has been established. Assuming an
ignition occurs, I find that it is reasonably likely to result in an injury. An
explosion is generally reasonably likely to cause injury—burn or concussive—to
nearby miners. The issue, therefore, is whether the record demonstrates that
miners will be in vicinity of the hazard.

Respondent makes no
specific assertions contesting Step 3; it only states broadly that “the
Citation is not reasonably likely to result in a hazard that was reasonably
likely to result in injuries of a reasonably serious nature.” Resp’t Br. at 18.
The Secretary similarly provides little in support. See S. Br. at 13 (arguing
that the failure of Respondent to dispute that “an LED bulb runs on 120 volts
and is not intrinsically safe” satisfies Step 3). I find this assertion lacking
in a Step 3 analysis because it is only relevant to the likelihood of the
hazard occurring in Step 2. This nonetheless does not prohibit a finding that
the violation meets the requirements for Step 3.

The
Secretary provided credible testimony that miners would be working near the
violative continuous miner during operation. I already credited his assessment
that at least one miner—“bolter[] closest to the facing”—would be injured by an
ignition. See supra Section IV.B.2.C. With no contrary testimony
provided, this is sufficient to find that a miner would be injured if the
hazard occurred.

d.         Step 4: It is reasonably
likely that such an injury would be of a reasonably serious nature.

An inspector’s
assessment of an injury as reasonably serious has generally been accepted. See
supra Section III.B.3.d. Here, the Secretary has provided credible
testimony that an ignition of the mine atmosphere could cause burns, broken
bones, or concussions to miners, particularly the bolters working near the
continuous miner. I find that such injuries are correctly characterized as of a
reasonably serious nature.

4.         Negligence

I
find that the negligence was properly assessed as “low.” Those charged with
inspecting for permissibility are familiar with the mining industry and
relevant facts. They should have been familiar with the protective purpose of
ensuring that light fixture housings (globes) are in permissible condition. I
therefore find that a reasonably prudent person in their position should have
known about the violative condition and acted to remedy it.

The
Secretary maintains that this violation was a result of low negligence because
the damage could have occurred in the days since the last required electrical
exam. S. Br. at 13. Respondent provided no argument against the negligence
finding, though it did elicit testimony from Inspector Young that the next
required exam could have been completed by the day following the citation. Tr.
90–91; Ex. GX-4, DOL 040.

The
inspector appropriately noted that, while a foreman should have seen the
lights’ condition, the damage could have occurred since the last exam. Tr. 82. I
credit the inspector’s explanation. I therefore affirm his negligence finding.

5.         Penalty

I
have previously recognized the Secretary’s proper consideration of the
operator’s business size and ability to continue in business. See supra
Section III.B.5. These Section 110(i) considerations remain the same here.

Respondent’s
history of violations is reflected in Exhibit GX-12. Its history consists of twenty-four
repeat violations during the inspection period. Accordingly, this factor has
already been properly considered and is of no consequence in my assessment.

I affirm that the violation’s
gravity was properly characterized by the inspector, so I find no reason to
impose a higher penalty assessment based on that factor. See supra
Section IV.B.2–3. Respondent immediately abated the violation by replacing the
light fixtures. See GX-4, DOL 022. I therefore find that the operator
demonstrated good faith in attempting to achieve rapid compliance after
notification.

The proposed penalty of $383.00 was
based, in part on the negligence [low] and gravity [reasonably likely] assessed
in the citation. I have affirmed the reasoning supporting both determinations. Having
affirmed the citation as issued, and considering all of the criteria relevant
to this violation, I assess a penalty of $383.00.

V.        CITATION NO. 9204257

A.        Factual
Findings

This
citation was issued by Inspector Young on March 22, 2021. Ex. GX-6, DOL 046. He
assessed gravity as “unlikely,” “lost workdays or restricted duty,”
non-S&S, and two persons affected. Id. He assessed negligence as
“low.” Id. The description read:

The Operator failed to plot all
drill holes which penetrate the coalbed being mined on the 75.1200 map at the
Bailey Mine. A [sic] alleged gas well was inadvertently cut through on the 10J
Longwall Working Section (039-0 MMU) at the number 118 shield at plus number
25+53 and was not shown to exist on the 75.1200 map.

Id. Inspector Young visited the mine
upon Respondent’s call that it cut through an uncharted gas well. Tr. 179. He
issued the citation because the unplotted, intersected well was “a bore hole
that penetrated the coal seam.” Id. at 184.

The
location was not accurately marked on Respondent’s mine map. Id. at 187.
Matthew Ruckle, Consol’s project engineer, explained, and Inspector Young
acknowledged, that Respondent conducted a diligent search, using available maps
and outside contractors to search the surface. See id. at 190, 193, 217,
226–27, 229; Ex. R-13, CONSOL 0070–74. The nearest plotted “did not find”
(“DNF”) drill hole, nonetheless, was marked 273 feet away from the actual
intersected hole. Tr. 185.

B.        Disposition

1.         Violation

The
cited standard states, “Additional information required to be shown on mine
maps under § 75.1200 shall include the following: . . . all drill holes that
penetrate the coalbed being mined . . . .” 30 C.F.R. § 75.1200-1(d) (2022). Respondent
did not contest the fact of violation in its post-hearing brief. See
Resp’t Br. at 20 n.5 (contesting only the negligence designation because of the
recent decision in Consol Pennsylvania Coal Co. , 44 FMSHRC at 168, 173,
which affirmed a citation for drill hole plotted 125 feet from its actual
location).

The
Secretary, nevertheless, still has the burden of proving the violation. An
operator is liable for a violation of this standard if a drill hole is inaccurately
plotted, regardless of the level of fault. See Musser Eng’g, Inc. , 32
FMSHRC at 1272 (citing Spartan Mining Co. , 30 FMSHRC at 706; Asarco,
Inc. , 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d , 868 F.2d 1195 (10th
Cir. 1989)). The Commission in Musser affirmed the judge’s finding of
violation, reiterating the level of inaccuracy found:

To say that the operator’s map was
inaccurate would be an understatement. If the operator’s map were accurate, the
[mine] workings would not have been intersected because the [mine] really would
have been approximately 450 feet away, as indicated on the operator’s map.

Id. at 1270 (citing 28 FMSHRC 699, 706
(July 2006) (ALJ)).

First,
I agree with the assessment that this was a drill hole that penetrated the
coalbed being mined. Respondent intersected the hole during mining operations;
the inspector testified that Respondent “mined past it, and the face opened
up,” and that “[t]hey might as well have mined through it.” Tr. 209.

Finally,
the Secretary provided credible testimony that the closest plotted suspected
gas well was 273 feet from where the operator intersected the hole in question.
This is sufficient inaccuracy to sustain a violation. I therefore affirm the
citation.

2.         Gravity

a.         Likelihood

The
Secretary asserts that an injury is unlikely. The inspector assessed ignition
as unlikely because legal gas check results were within safe limits. Tr. 186. With
no contrary evidence provided, I affirm the inspector’s likelihood finding.

b.         Severity

The
Secretary provided credible testimony that the ignition or fire hazard, though
unlikely, would result in burns, concussions, or broken bones. Id. at

190. I find that such injuries would reasonably result in a miner missing at
     least one full day of work. I therefore affirm the severity found in the
     citation.

c.         Number
of Persons Affected

The
citation found two miners would be affected by the hazard, noting that two
people usually run the shear. Id. Respondent provided no contrary
testimony. I therefore affirm the number of persons affected.

3.         Negligence

I
find that negligence was improperly assessed as “low.” Respondent is familiar
with the mining industry and relevant facts, and it has explicit familiarity
with the protective purpose of the regulation. See supra Section V.B.1. Therefore,
I find that a reasonably prudent person in Respondent’s position should have
known about the violative condition.

Respondent
here did not rest its efforts on reviewing old maps that it could not
reasonably conclude were accurate indicators of boundaries of previous mine
workings. Contra Musser Eng’g, Inc. , 32 FMSHRC at 1286 (affirming gross
negligence where it was unreasonable for operator to rely on the maps used). Respondent
used two third-party contractors—18 Karat, Inc. and Blue Mountain, Inc.—to
search for the suspected gas wells. Tr. 226–29. Neither contractor found the
holes in question, and they were marked as DNF. See id. ; Ex. R-14, 15. Inspector
Young even acknowledged that Respondent did the best it could to find the
suspected wells. Tr. 193.

The
Secretary relies on MSHA negligence definitions to argue for low negligence
instead of no negligence. He acknowledges that there were “considerable
mitigating circumstances,” but that the operator could have known of the
violative condition. S. Br. at 14–15; see also 30 C.F.R. § 100.3(d) (2022).

An
assessment of no negligence is supported, however, under a reasonably prudent
person standard specific to miners. The Secretary did not provide testimony
regarding further actions Respondent could have taken. I find that Respondent
conducted its search using all available means. I therefore reduce the
negligence finding from “low” to “none.”

4.         Penalty

I
have previously recognized the Secretary’s proper consideration of the
operator’s business size and ability to continue in business. See supra
Section III.B.5. These Section 110(i) considerations remain the same here.

Respondent’s
history of violations is reflected in Exhibit GX-12. Its history consists of
only two repeat violations during the inspection period. Accordingly, this
factor has already been properly considered and does not significantly affect
my assessment.

I
affirm the violation’s gravity as assessed, so that factor also does not carry
additional weight in my penalty assessment. See supra Section V.B.2. Respondent
immediately abated the violation by updating its mine map. See GX-6, DOL
046–47. I therefore find that the operator demonstrated good faith in
attempting to achieve rapid compliance after notification.

The
proposed penalty was based, in part, on the negligence assessed. Because I find
that a reduction in negligence is warranted, see supra Section V.B.3, I
also find that a penalty reduction is appropriate. The proposed penalty was
$125.00, based in part on the Secretary’s finding of moderate negligence. Because
I find that the operator was not negligent, I assess a penalty of $100.00.

VI.       CONCLUSION

It
is ORDERED that Citation Nos. 9204245 and 9204250 be AFFIRMED as issued.

It
is also ORDERED that Citation No. 9204257 be AFFIRMED with the
assessed gravity, and that the level of negligence be MODIFIED from “low”
to “none.”

Finally, it is ORDERED that
the Respondent pay the Secretary of Labor the assessed penalty of $838.00
within 30 days of the date of this decision. [10]

/s/
Michael G. Young

Michael G. Young

Administrative Law Judge

Distribution
(First Class Mail and email):

Matthew R.
Epstein, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street,
Mailstop SOL/22, Philadelphia, PA 19103, [email protected]

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

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

[1] This docket
included seven section 104(a) citations. One was bifurcated and consolidated
with Docket No. PENN 2021-0117. See Order Granting Mot. to Bifurcate and
Consolidate at 1 (Jan. 19, 2022). Three were settled by the parties and
approved prior to hearing. See Decision Approving Partial Settlement at 1–2
(Feb. 4, 2022).

[2] The inspector’s characterization
of the gravity of the violation, in conformance with Part 100 for purposes of
penalty assessment, is not binding on the Commission, but I recite it here because
it may be useful in evaluating the enforcement decisions made by the agency.

[3] The clevis is a
housing connected to the pan line of the shield and contains the shear pin
where it connects to the relay bar, which moves the pan line. The clevis has
two “ears,” or tabs, on the top and the bottom, and there are holes in those
tabs, through which the horizontal retaining pins are inserted and then secured
with an “r-clip” locked through a hole near the end of the pin, though a bolt
may sometimes be used. Tr. 31–33.

[4]
Shear pins
are hollow and have indentations, or grooves, near each end to enable them to
break as intended. Tr. 31–32, 50–52.

[5] Compare
Spartan Mining Co. , 30 FMSHRC 699, 711 (Aug. 2008) (“The standard imposes
two duties upon an operator: (1) to maintain machinery and equipment in safe
operating condition , and (2) to remove unsafe equipment from service.”)
(emphasis added), with Jim Walter Res., Inc. , 19 FMSHRC 1761, 1767 (Nov.
1997), and Amax Coal Co. , 17 FMSHRC 48, 51 (Jan. 1995) (ALJ) (requiring
action upon a finding of excessive methane, not methane prevention itself).

[6] The Commission in
Lopke Quarries, Inc. required evidence that the asserted safe means of
access actually was utilized, not only that it existed in addition to an
allegedly unsafe access. 23 FMSHRC 705, 707 (July 2001). The Commission in
Henna Mining Co. held that an operator “could show that a cited area is
not a ‘means of access,’” demonstrating that existence of unsafe access would
be adequate to prove a violation. 3 FMSHRC 2045, 2046 (Aug. 2006).

[7] Inspector Young testified about
another miner being injured at the Bailey Mine by a piece of shear pin, but he
could not remember the miner’s name. Tr. 60–61. He acknowledged that he is only
aware of one reportable accident, involving the miner he did name. Id.
at 63. I find Inspector Young to be a credible witness and credit his account
of one other known minor injury caused by the hazard at issue.

[8] I stress that my
decision is narrow and is based on the record facts presented to me at hearing
in this case. Those facts, involving the same mine and general circumstances as
a prior incident testified to by the inspector, suggest a greater likelihood
that shear pins will fail and be ejected at the headgate than in the main
mining line. Curiously, this seems to be at variance with a case involving the
issue tried shortly before the case at bar. See Consol Pa. Coal Co., LLC,
44 FMSHRC 161, 167 (March 2022) (ALJ) (focusing on reduced likelihood
that pins will be ejected at headgate shields). I have issued my decision based
on the record facts as presented to me.

[9] Regarding the
likelihood that a miner would be wearing a protective “Airstream™” helmet,
which includes a face shield, I note that the miner injured in the incident described
by Inspector Young had an Airstream™ helmet but had his face shield lifted when
he was struck by a piece of a shear pin. Tr. 69.

[10] 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.