Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

CONSOL's Bailey Mine preparation plant had wet coal slurry and fine magnetite covering a walkway near a step, with a leaking pipe overhead and a missing light. CONSOL conceded that the accumulation violated the travelway standard. Judge Sullivan found that the material could obscure the step, but the obvious shower of falling material made it unlikely that a miner would cross the catwalk and encounter the hazard. He removed the significant and substantial designation, changed the likelihood of injury from reasonably likely to unlikely, and retained the moderate-negligence finding. The penalty was reduced from the proposed $791 to $375.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.205(b)
• Outcome: The citation was affirmed but modified to non-S&S and unlikely, with a $375 penalty.
• Key point: A technical travelway violation was not S&S because the active overhead leak made exposure to the obscured step unlikely.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / 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
2021-0118

A.C. No. 36-07230-541358

Mine: Bailey
Mine

DECISION AND ORDER

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

Kenneth J. Polka,
CLR, U.S. Department of Labor, MSHA, Mt. Pleasant, Pennsylvania, for the
Petitioner, [1]

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

Before:           
                       Judge Sullivan

I.          
INTRODUCTION

This case is
before me upon a Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration
(“MSHA”), against CONSOL Pennsylvania Coal Company, LLC (“CONSOL” or
“Respondent”), pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). After my August 25, 2022 Decision
Approving Settlement of three of the four penalties in this docket, at issue
remains a citation alleging a violation of 30 C.F.R. § 77.205(b), for which the
Secretary seeks a civil penalty of $791.00.

The parties
presented testimony and documentary evidence for the single citation during a
hearing on August 17, 2022, in Pittsburgh, PA. MSHA Inspector Robert W. Swope
testified on

behalf of the
Secretary and CONSOL Compliance Supervisor Keith Woncheck testified on behalf
of the Respondent. Both parties subsequently filed post-hearing briefs on October
24, 2022. [2]

II.         
GENERAL
FACTUAL AND PROCEDURAL BACKGROUND

CONSOL owns and
operates the Bailey Mine, which is located in Greene and Washington Counties in
Pennsylvania and crosses into Marshall County, West Virginia. The Bailey Mine includes
a large prep plant, divided into five “subplants” with up to nine floors, some
with half floors in between. On July 28, 2021, Inspector Swope conducted part
of MSHA’s quarterly EO1 regular inspection of the prep plant. Tr. 30-31.

During his
inspection that day, Inspector Swope issued two citations. The first and only
citation that is relevant to this proceeding, Citation No. 9204511, was issued because
a 38-inch-wide walkway located in the coal preparation plant was covered with a
combination of wet coal slurry and fine magnetite. Tr. 41. Sec’y Ex. P-1. This
alleged violation of 30 C.F.R. §  77.205(b) was
designated as significant and substantial (S&S). To terminate the citation,
CONSOL “cleaned all of the extraneous material from the walkway[] and replaced
the missing overhead light to improve the illumination of [the] area.” Sec’y
Ex. P-1, at 001. At issue here is that alleged violation and its associated
findings, including whether the violation was S&S, and if the violation is upheld,
the penalty to be assessed.

III.         
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

A.     Citation No. 9204511
for Alleged Violation of Section 77.205(b)

1. Fact of Violation

Before beginning
his inspection that day, Inspector Swope notified the Safety Director’s Office
of his presence and offered for someone to travel with him throughout the
facility. CONSOL Compliance Supervisor Woncheck accompanied Inspector Swope
during his review of the plant and facility. Tr. 31-32. Inspector Swope began
his inspection on the sixth floor and moved on to the fifth and a half floor
before proceeding down a set of stairs to the fifth floor of the 2C subplant. Tr.
89, 161.

Attached hereto as
Appendix A is Resp’t Ex. R-C.1, a map showing the main details of the fifth
floor of the plant, as annotated by Woncheck at hearing. The annotations
include the route that the two men took on the floor to reach the 2A subplant. Tr.
164, 167. As is shown, when arriving on the fifth floor, Inspector Swope,
followed by Woncheck, walked past four coal screens, made a right past two more
coal screens and three feeders, and proceeded to make a quick left before
turning right onto the right-side concrete walkway of the platform for two
other coal screens, identified as A1 and A2. Tr. 167-69; Resp’t Ex. R-C.1.

At the end of the
walkway, Inspector Swope and Woncheck turned 90 degrees to the left and stepped
up onto the 15- to 18-foot long metal-grated catwalk that ran across the front
of the A1 and A2 coal screens. Tr. 91-93, 101, 169-70. The A1 and A2 coal
screens were surrounded by catwalks and concrete on all sides. Tr. 91. On the
right side of the coal screens was a step up onto the catwalk, and on the left
side of the coal screens (or at the opposite end of the catwalk) was a step
down. The catwalk provided access to the front of the A1 and A2 raw coal
screens and the catwalk could only be accessed from the rear, via the right or
left side pathways. Resp’t Ex. R-C.1.

Before continuing
down the catwalk in the direction towards the downward step, both men noticed a
“material” that was “raining down” like a “shower” from above, and because
“slurry was built up” on the surface underneath, they did not proceed further. Tr.
45, 171. Woncheck stated that he called to have the problem—a plugged pipe that
was leaking—fixed. Tr. 170.

Once the pipe was
fixed from the floor above, which took about 20 minutes, the men went around to
the other (left) side of the coal screens to view the accumulation. With his
cap lamp, Inspector Swope was able to see that the slurry had “started out
about ten feet.” Tr. 45, 170.

According to
Inspector Swope, given the angle of the walkway on that (left) side, the slurry
had “built up just about to the top of the metal walkway in front . . . to the
point where it was either running out somewhere else or running over top of the
toe boards of the expanded metal,” approximately five to six inches deep. Tr.
45-57. Inspector Swope also noted that the handrails which would guide a miner
downwards were also covered with “a lot of slop.” Tr. 44. At hearing, Inspector
Swope described the material as “very wet slurry.” Tr. 55.

Woncheck described
the slurry as a combination of magnetite, water, and ultrafine coal material,
that was “real wet,” having the consistency of a “milkshake,” and “soup,” and
not slippery but gritty “like sandpaper.” Tr. 198-99. Woncheck disagreed with
Inspector Swope on how deep the slurry accumulation was, stating that it was
not built to the top of the toe boards but rather “a good inch or two below”
that point. He measured it to be four-and-a-half inches. Tr. 209-11; Resp’t Ex.
B-3, B-5, B-6. [3]
At hearing, Woncheck circled on the map where the step on the left side of the
catwalk was located, to indicate where the material had built up. Tr. 171-72;
Resp’t Ex. R-C.1.

In addition to the
accumulation, Inspector Swope noted that an overhead light in the area was
missing, which he believed made it even harder to see the accumulated material
and necessitated his use of a camera flash to produce clear photographs of the
area. Tr. 44, 56, 123; Sec’y Ex. P-2, at 005 & 009. Woncheck acknowledged
the missing overhead light but stated that “there was plenty of light,” he
could see the spillage “just fine,” and he did not need to utilize the flash
feature on his camera when taking photos of the area. Tr. 179.

Inspector Swope
subsequently issued Citation No. 9204511 alleging that CONSOL violated section 77.205(b),
in that:

The
38[-]inch[-]wide concrete travelway on the left side of the Plant 2A raw coal
screen was not being kept clear of all extraneous material and other stumbling,
slipping, or tripping hazards. A combination of extremely wet coal slurry and
very fine magnetite was covering the entire width of the walkway (38 inches
wide), and 8 [to] 10 feet long. The mixture of materials was built up to the top
of the toeboards (6 inches high) at the end of the left side walkway. There is
a 6 [to] 7 inch step up to the expanded metal walkway that runs across in front
of the elevated metal walkway. The overhead light, directly above the affected
(sic) was missing, which significantly reduced the illumination and visibility
at the turn and step down in the walkway. There was also a significant overhead
leak of water, coal slurry, and magnetite directly in the walkway. Standard
77.205(b) was cited 15 times in two years at mine 3607230 (10 to the operator,
5 to a contractor).

Sec’y Ex. P-1, at

2. [4]

In designating the
citation as S&S, Inspector Swope indicated that the presence of accumulated
material was reasonably likely to cause an injury that could be reasonably
expected to result in lost workdays or restricted duty of one miner. Sec’y Ex. P-1,
at 002. Moreover, Inspector Swope categorized the violation as resulting from CONSOL’s
moderate negligence. Id.

2. Analysis

Section
205, titled “Travelways at surface installations,” provides in pertinent part
that:

(a)    Safe means of
access shall be provided and maintained to all working places.

(b)   Travelways and
platforms or other means of access to areas where persons are required to
travel or work, shall be kept clear of all extraneous material and other
stumbling or tripping hazards.

30 C.F.R. §
205(a)-(b). There is no dispute that the cited area – the catwalk that provided
access to the front of the two raw coal screens and the adjoining pathways to
that catwalk – constituted a “[t]ravelway” or “platform” that provided a “means
of access to areas where persons are required to work or travel.”

As for whether the
mixture that was falling from the overhead pipe and accumulating on the
travelway and platform below should be considered “extraneous material,” that
term is not defined in the regulations, so its ordinary meaning applies in this
instance. Peabody Twentymile Mining Co. v. Sec’y of Labor , 931 F.3d 992,
997 (10th Cir. 2019) (holding that in “[t]he absence of a definition in the
standard . . . . we apply the ordinary or dictionary definitions of the terms .”) “Extraneous” is defined as “1. Not
constituting a vital element or part. . . . 3. Coming from the outside. . . .” The American Heritage Dictionary of the English
Language 629 (4th ed. 2009). In the context of the cited area and the
purpose it served at the plant, the material in question was clearly
“extraneous,” so, at a minimum, a technical violation has been established in
this instance.

In its
post-hearing brief, CONSOL admits as much and thus now concedes a violation. Resp’t
Br. at 8. In challenging the S&S designation, however, CONSOL otherwise
takes issue with the inspector’s description of the violation. CONSOL does not
agree that the extraneous material in this instance posed any stumbling,
tripping, or slipping hazard. Id . at 8-10. Consequently, before
determining whether the violation was S&S, I address the extent to which
the Secretary established the scope of the alleged violation of section
77.205(b). [5] My findings are
as follows.

As discussed, the
two witnesses differed markedly on whether the conditions posed a stumbling or
slipping hazard to miners. I note at the outset, as will be discussed further
herein, that between the two men, Wonchek was substantially clearer on the
details of how the inspection of the raw coal screen area unfolded. With respect
to the extent of the violation, however, the tangible evidence of the cited
area’s actual conditions at the time of the inspection is of more probative
value.

At hearing, each
man relied on the photographs he had taken of the conditions during the
inspection and soon afterwards. Having reviewed all of those photographs, I
conclude that, although the photographs may not substantiate all the details of
the citation, they supply sufficient support for Inspector Swope’s fear that,
given the nature and amount of the fallen material and where it had
accumulated, in theory a miner traveling across the catwalk from right to left
might not perceive that there was a step down while making a turn onto the
adjoining concrete pathway, and lose his footing upon stepping down unexpectantly.
The gray, watery nature of the accumulated material and its tendency, if viewed
from close range in the reduced lighting, to blend in with the left side edge
of the catwalk, would have largely if not totally obscured the step down. This can
be seen most clearly in Sec’y Ex. P-2, at 004 & 013, as well as Resp’t Ex.
B-2 & B-3.

It is true that
the photographs taken from farther away, down the adjoining concrete pathway,
tend to show that the difference in height between the catwalk and the pathway remained
perceptible. Sec’y Ex. P-2, at 007, 010, & 011; Resp’t Ex. B-1. However, as
Inspector Swope explained, the risk the conditions posed was not to a miner
coming from the direction that those photographs were taken, because a miner
coming from that direction would have noticed the accumulated material. Tr. 75.
Rather, at risk was any miner coming across the catwalk from its other
end to round the corner onto the concrete, who would have a significantly worse
vantage point to appreciate how the fallen material had obscured the step down.
Tr. 51-52, 56, 75. [6]

Again, however, the
foregoing establishes little more than a technical violation in this instance, for
the record shows that it was unlikely a miner would have traveled across the
catwalk to get to the point where he would turn the corner and take the step
down. That is because, as the citation states and Swope testified, there was an ongoing
“significant overhead leak of water, coal slurry, and magnetite” that caused
the cited conditions. Sec’y Ex. P-1, at 001; Tr. 45-46, 103-04. There is no
evidence that either of the two men considered walking through the material
that was falling at such a rate that Wonchek compared it to a “shower” that was
“raining down.” Tr. 171, 180. Indeed, the evidence is that both men circled
back and walked around to access the catwalk at its other end even after
the leaking pipe was addressed from a floor above, and the material had stopped
falling. Tr.
59, 70, 171-72, 195, 232-33. Swope testified that he did not consider it
advisable to walk into the material from either direction. Tr. 56-57, 75-76,
86, 105, 141, 143.

Reading the
citation in light of Swope’s description of the conditions as he found them, it
is possible he may have been concerned that, at some point, the leak might have
ceased on its own prior to the discovery of the conditions, and a miner would
travel across the catwalk and thus have to navigate the step down at its end
through the accumulated material. In such circumstances, remote as they may
have been, I find that in addition to the material at issue being “extraneous”
in this instance, it posed the stumbling hazard which the inspector was
reasonably concerned about. [7]

3. S&S and
   Gravity of the Violation

A
violation is 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)). In Mathies , the four
elements or steps required for an S&S finding were expressed as follows:

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

Id. at 3-4 (footnote
omitted). More recently, the Commission restated Mathies Step 2 in terms
of finding that “ the violation was reasonably likely to cause the occurrence of the
discrete safety hazard against which the standard is directed .” Newtown
Energy, Inc. , 38 FMSHRC 2033, 2037 (Aug. 2016). [8]

a.      Mathies
Step 1 & Step 2

Step 1
of the Commission’s S&S analysis is satisfied above, as noted in my
conclusion that the basic elements of a section 75.205(b) violation were conceded
by CONSOL and the evidence further established at least a theoretical stumbling
hazard as set forth in the citation.

To
satisfy Step 2, the Secretary must establish that there was at least a reasonable
likelihood that a miner would step into the accumulated material, not realizing
there was a step down to the concrete pathway and be subject to the stumbling
hazard against which the standard is directed. Importantly, an S&S determination
is based upon the particular facts surrounding the violation, existing at the
time of the citation issuance, and, in general, assumes normal mining
operations will continue. U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574 (July
1984); Northshore Mining Co. , 38 FMSHRC 753, 757 (Apr. 2016) (ALJ). It
is thus to be made
“without any assumptions as to abatement.” Mach Mining, LLC, 4 0 FMSHRC 1, 6 aff’d , 748 Fed.
Appx. 347 , 2019 WL 275718
(D.C. Cir. 2019).

The Secretary argues that if the conditions were “permitted
to exist unabated under continued normal mining, it is reasonably likely that a
miner would have walked into the area and stumbled or slipped on the walkway.” Sec’y
Br. at 10. Tellingly, the Secretary’s analysis wholly omits a very significant fact
that the inspector included in the citation: the “significant leak ” of material from above. As previously discussed, that made
it very much unlikely any miner would have attempted to cross the
catwalk while the material continued to rain down in such an obvious manner.

As with the violation, and because he did not directly address
the issue in his testimony, I am again left to infer that the inspector may
have presumed that there was a possibility that at some point the material could
have ceased falling without any action by CONSOL. This would have raised the
risk that, prior to discovery of the accumulated material, its clean up, and
repair of the light, a miner would cross the catwalk and step onto the pathway
without realizing there was a step down.

Such a theoretical possibility, while it may be acceptable in
the context of determining whether the alleged violation has been established, does
next to nothing to advance the notion that there was a “reasonable likelihood”
under Step 2 of Mathies of it coming to fruition and occurring. That is
particularly true here, where the Secretary offered no evidence on the
possibility that the leak could have ceased without action by CONSOL.

Instead, the Secretary solely focused on establishing the
reason why a miner may have had to cross the catwalk to the lower
pathway. The inspector offered an array of reasons for a miner to have done so.

The inspector first cited what appeared to be his overriding
concern: the likelihood of the catwalk being used simply due to the large
number of employees working throughout all parts of the plant, including the contractor
employees who he described as subject to high turnover rates, given the
unpleasant working conditions. Tr. 46-51, 78, 85, 146-47. As can be seen in
Appendix A, however, the A1 and A2 raw coal screens and surrounding catwalk and
concrete pathways were in large part set off on their own platform area, and
the inspector eventually agreed that it was an area that would only be accessed
if there was a specific task or tasks to be done there. Tr. 91, 94, 134, 136-38;
Resp’t Ex. R-C.1.

As for what those tasks could be, the inspector’s initial
explanation was that a miner might go to “check” on the overhead leak. Tr. 47,

52. If such a “significant” leak was ongoing, however, it was unlikely a miner
    would cross the catwalk underneath it, much less go entirely across it to reach
    the step down onto the pathway. Moreover, because the leak was fixed from the
    floor above, there was no need to cross the catwalk for that reason either. Tr.
    170-171.

The inspector was on more solid footing when describing the
potential for a miner to have to go to the area to service the raw coal
screens, such as, for instance, when dust is thrown off the drive motors onto
the screens, resulting in plug ups, or for the periodic need to adjust the skirting
around the screens. Tr. 47, 52, 69, 85. [9] Lastly, Inspector
Swope discussed the possibility that the missing light might be noticed from
outside the area, and perhaps a miner would go, or be sent, to repair the light
via the catwalk without appreciating that the material had covered the step
down. Tr. 52, 69, 72, 85, 129-31.

However, I need not reach a conclusion with respect to the respective
evidence on the likelihood of a miner having a reason to cross the catwalk and
be subject to a stumbling hazard upon missing the obscured step down to the
pathway. Any evidence that a miner may have had a reason to cross the catwalk
to begin with is simply too greatly outweighed by the evidence that the falling
material would have deterred that miner from making it to the end of the
catwalk. That latter evidence prevents the Secretary from establishing Mathies
Step 2 in this instance. [10]

b.      Mathies Step 3 & Step
4

Inspector Swope testified
that if a miner were to turn the corner leaving the catwalk and step onto the
pathway without realizing there was a six- or so inch step down, the miner’s resulting
loss in balance could cause knee or ankle injuries or injuries stemming from falling
into a handrail. Inspector Swope characterized these injuries as reasonably
serious and could result in lost workdays or restricted duty. Tr. 56, 77-78. Given
the conditions, I agree with the inspector on this, and find that Mathies
Steps 3 and 4 have been satisfied by the Secretary in this instance. See also
Wolf Run Mining Co. , 36 FMSHRC 1951, 1958-59 (Aug. 2014) (“not[ing] that an
inspector’s judgment is an important element in an S&S determination” as
part of Mathies Step 3 and under Step 4 crediting inspector’s testimony
regarding the severity of injuries that had resulted to miner).

Due to not
satisfying Mathies Step 2, I conclude that the Secretary has failed to
establish that the violation of section 77.205(b) was S&S. I further
conclude that an injury in this instance was unlikely, and that any injury
would result in lost workdays or restricted duty.

4. Negligence

The Commission
“may evaluate negligence from the starting point of a traditional negligence
analysis.” Brody Mining , 37 FMSHRC at 1702. This analysis asks whether
an operator has met “the requisite standard of care—a standard of care that is
high under the Mine Act.” Id. Considerations include “what actions would
have been taken under the same circumstances by a reasonably prudent person
familiar with the mining industry, the relevant facts, and the protective
purpose of the regulations.” Id. ; see also A.H. Smith Stone Co. ,
5 FMSHRC 13, 15 (Jan. 1983). The Commission has explained that an ALJ “is
not limited to an evaluation of allegedly ‘mitigating’ circumstances” and
should consider the “totality of the circumstances holistically.” Id.; see
also 30 C.F.R. § 100.3(d) (stating that operators must be “on the alert for
conditions and practices in the mine that affect the safety or health of miners
and to take steps necessary to correct or prevent hazardous conditions or
practices.”).

Here, CONSOL is
not challenging Inspector Swope’s assessment of moderate negligence. In
determining that CONSOL was moderately negligent, Inspector Swope testified
that he had recently seen an increase in section 77.205(b) violations,
specifically that “the same standard was cited 15 times in less than two years
at the plant.” Tr. 78-79; Sec’y Ex. P-1 at 001. Additionally, Inspector Swope
noted that spills occurred “everywhere through the plant” and had been “getting
worse … over the last several years.” Tr. 118. These conditions, in conjunction
with Inspector Swope’s understanding that individuals go through and look at
the plant “on all three shifts” support his determination of moderate
negligence. Tr. 47, 79, 85. Woncheck himself stated that in his role as
compliance supervisor, he travels every area of the plant every day. Tr.
158-59, 220-21. Thus, I credit the inspector’s explanation and affirm the
negligence finding.

IV.         
PENALTY

Commission
administrative law judges have the authority to assess civil penalties de
novo for violations of the Mine Act. Sellersburg Stone Co. , 5
FMSHRC 287, 291 (Mar. 1983). The Act requires that the ALJ shall consider six
statutory penalty criteria in assessing civil monetary penalties:

(1)
the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after
notification of a violation.

30 U.S.C. § 820(i).

In the fifteen
months preceding the issuance of Citation No. 9204511, MSHA issued 13
violations of section 77.205(b) to the Bailey Mine (seven to operator, four to
contractors). See MSHA, Mine Data Retrieval System , https://www.msha.gov/mine-data-retrieval-system (last visited November
25, 2022). CONSOL agreed in conjunction with the Secretary that the proposed
penalty would not affect its ability to continue in business. Jt. Stip. 6.

For Citation No. 9204511,
the Secretary proposed a penalty of $791.00. I determined CONSOL’s negligence
to be moderate. See discussion supra Part III.A.4. I also
determined the gravity of the violation to be non-S&S, that an injury in
this instance was unlikely, and that if an injury did occur, it would result in
lost workdays/restricted duty to one person. See discussion supra Part
III.A.3. Moreover, CONSOL demonstrated good faith by fixing the leaking pipe
and cleaning up the area promptly. Tr. 83, 149-50, 170. Considering the six
criteria set forth under section 110(i) of the Mine Act in conjunction with the
relevant facts, I hereby assess a penalty of $375.00 for Citation No. 9204511.

V.         
CONCLUSION
AND ORDER

It is hereby ORDERED
that Citation No. 9204511 is MODIFIED to reduce the gravity from
“reasonably likely” to “unlikely” and to remove the S&S designation. Respondent
CONSOL is hereby ORDERED to pay a penalty of $375.00 within 30
days of the date of this decision. [11]
Accordingly, this case is DISMISSED.

/s/
John T. Sullivan

John T. Sullivan

Administrative
Law Judge

Distribution
(First Class Mail and E-mail):

Ryan M. Kooi,
Esq., U.S. Department of Labor, Office of the Regional Solicitor,

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

Kenneth J. Polka,
Conference & Litigation Representative, U.S. Department of Labor, MSHA,

Paladin
Professional Center, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666

( [email protected] ) 

James P. McHugh,
Esq., Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25301 ( [email protected] )

Attachments:

Appendix A:
Respondent’s Exhibit R-C.1

APPENDIX
A

[1] On July 13, 2022,
I issued an Order Granting Request to Practice for Mr. Polka, a Conference and
Litigation Representative (“CLR”). With this Order, Mr. Polka was permitted to
conduct this hearing with the understanding that Mr. Kooi would accompany him
per the long-standing practice of the U.S. Department of Labor.

[2] In this decision,
the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s

exhibits
are abbreviated as “Jt. Stip.,” “Tr.,” “Sec’y Ex. #,” and “Resp’t Ex. #”
respectively.

[3] After Inspector
Swope had taken photos and completed his inspection, Woncheck “wanted to do his
own investigation” and took additional photos, which were admitted at hearing as
Resp’t Ex. B-1 to B-6.

[4] At hearing, the
inspector explained that he meant the material had built up to bottom of the
metal grating of the catwalk. Tr. 117.

[5] In an enforcement
action before the Commission, the Secretary bears the burden of proving any
alleged violation.” Jim Walter Res., Inc ., 9 FMSHRC 903, 907 (May 1987);
Wyoming Fuel Co ., 14 FMSHRC 1282, 1294 (Aug. 1992). The Commission has
defined the Secretary’s burden as a preponderance of the evidence, “which
simply requires the trier of fact ‘to believe that the existence of a fact is
more probable than its nonexistence.’” RAG Cumberland Res. Corp ., 22
FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas Co ., 11 FMSHRC
2148, 2152 (Nov. 1989).

[6] CONSOL argues
that the design of the handrails running along both sides of the turn from the
catwalk to the pathway provided an independent indication that a downward step
existed. Resp’t Br. at 9. Given the conditions, particularly the reduced
illumination resulting from the missing light, I conclude that it would have
been too much to expect a miner traveling across the catwalk to necessarily
pick up and quickly process that the handrail design indicated that there was a
step down onto the catwalk.

[7] I note that at
hearing, Swope did not at all acknowledge that the material ceased falling from
above before he issued the citation. While Wonchek explained that the leaking
pipe was repaired from the floor above, and that repairs were completed before
the two men proceeded further to examine the conditions in the raw coal screen
area (Tr. 170-71), Swope’s telling included no such sequence of events. Rather,
in response to my questioning on his view of the steps necessary to abate the
cited violation, he recounted that, upon issuing the citation, he left the
area, expecting it to be first cleaned up, at which point only then the leak
(and, afterwards, the missing light) could be addressed. Tr. 70-71, 85. In my
view, Wonchek’s version in which the leaking pipe was repaired earlier makes
much more sense. This is particularly so considering the citation identifies
the “Action[s] to Terminate” as only cleanup of the material and replacement of
the overhead light, thus entirely omitting mention of stopping the overhead
leak described earlier in the citation. Sec’y Ex. P-2, at 001. This contradicts
Swope’s testimony on his abatement expectations, thereby providing further
support for Wonchek’s version of events.

[8] Here it
makes no difference which version of Step 2 is applied. See Consol Pa. Coal
Co. , 43 FMSHRC 145, 148-49 & n.6 (Apr. 2021).

[9] In response, Wonchek explained how some
of these tasks could be accomplished without necessarily having to set foot on
the catwalk, such as the maintenance done on screens from the concrete pathways
on either side of the platform. Tr. 175-76; Resp’t Ex. R-C.1. He further
explained that access to the raw coal screens via the catwalk in front of them
was only necessary when an electrician had to reset a “tilt switch” upon an indication
of material buildup on a screen. Such would occur “once every two, three months,
maybe, depending on conditions.” Tr. 172-74.

[10] Importantly, the
Secretary does not argue that it would only be through the exercise of caution
that a miner would avoid walking through the falling material. The possibility
that a miner would take precautions is an impermissible consideration in determining
S&S. See, e.g., Newtown , 36 FHSHRC at 2044; Eagle Nest, Inc. ,
14 FMSHRC 1119 (July 1992). Rather, the evidence, including that introduced by
the Secretary, is that all it took was basic common sense to not walk through
the falling material.

[11] 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.