Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

A face ignition occurred while a continuous miner operated at Consol's Enlow Fork Mine, which was liberating more than 11 million cubic feet of methane per day. Investigators found two damaged cutting bits about two feet apart on the side of the cutting head where witnesses saw the ignition. The judge found that operating with damaged or missing bits created an unsafe sparking hazard and violated the equipment-maintenance standard. He affirmed the significant-and-substantial finding and the original assessment that injuries to five nearby miners were reasonably likely to cause lost workdays or restricted duty. No one was injured in the incident, and Consol was ordered to pay a $716 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(a)
• Outcome: The citation and S&S designation were affirmed, with a $716 penalty.
• Key point: Damaged cutting bits on a continuous miner created a recognized methane-ignition hazard requiring the machine to be removed from service.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-928-8689

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner,
v.
CONSOL PENNSYLVANIA COAL COMPANY LLC, Respondent. |
|
|
CIVIL PENALTY PROCEEDING
Docket No. PENN 2022-0070 A.C. No. 36-07416-552312
Mine: Enlow Fork Mine |

DECISION AND ORDER

Appearances: Ryan M. Kooi, Esq., & Doug Sciotto, CLR, Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for the Secretary of Labor

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

Before: Judge Lewis

STATEMENT OF THE
CASE

This case arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (The
“Act” or “Mine Act”). A hearing was held via Zoom Government on May 2-3, 2023.[1] The parties
subsequently submitted briefs. The within Decision has been reached after
careful consideration of the evidence presented at hearing and arguments
advanced by the parties.

At issue in this case is a single violation—Citation No. 9206769—issued under 30 C.F.R. §75.1725(a) for failure to maintain a continuous miner in safe operating condition. Specifically, the Citation states:

The Company No. 25 continuous miner located on the H-2 Development Section (MMU 007-0) is not being maintained in safe operating condition. There are 2 damaged cutting bits on the right outer sump ring of the cutting head, approximately 2 feet from each other. One of the bits is missing the carbide tip, and the other is broken off at the lug. The continuous miner was out of service at the time due to a 103(k) order being issued for an ignition investigation. According to miners working on the section who witnessed the ignition, the ignition originated on the right-hand side of the cutting drum, was orange in color, and was approximately 2-2.5 feet in diameter. This is a contributory citation to a non-injury face ignition which occurred at 11:18 AM on 2/16/2022.

P-1 at
27.

LAW AND
REGULATIONS

30 C.F.R. § 75.1725(a) provides, in pertinent part:

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.

CREDIBILITY
ASSESSMENT

The findings of
fact are based on the record as a whole and the undersigned’s careful
observation of the witnesses during their testimony. In resolving any conflicts
in the testimony, the undersigned has taken into consideration the interests of
the witnesses, or lack thereof, and consistencies, or inconsistencies, in each
witness’s testimony and between the testimonies of the witnesses. In evaluating
the testimony of each witness, the undersigned has also relied on his demeanor.
Any failure to provide detail as to each witness’s testimony is not to be
deemed a failure on the undersigned’s part to have fully considered it. The
fact that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)
(administrative law judge is not required to discuss all evidence and failure
to cite specific evidence does not mean it was not considered).

JOINT STIPULATIONS

The parties agreed to the following stipulations which were admitted as Joint Exhibit 1 (“J-1”).

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

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

3. Operations of the Respondent at the Enlow Fork Mine at which the citations were issued are subject to the jurisdiction of the Mine Act.

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

5. Enlow Fork Mine is owned by the Respondent.

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

7. MSHA Inspector Brandon Crutchman was acting in his official capacity and as an authorized representative of the Secretary of Labor when Citation No. 9206769 was issued and during the course of the accident investigation and inspection.

8. MSHA Inspector Walter Young was acting in his official capacity and as an authorized representative of the Secretary of Labor during the course of the accident investigation and inspection.

9. A true copy of Citation No. 9206769 was served by a duly authorized representative of the Secretary of Labor upon an agent of Respondent at the date, time, and place stated therein, as required by the Act.

10. Exhibit “A” attached to the Secretary’s Petition in Docket No. PENN 2022-0070 contains an authentic copy of Citation No. 9206769 at issue in this matter with all modifications or abatements, if any.

11. Petitioner’s Exhibits are authentic copies of the documents they depict.

S. Br. at 4-6 (July 14,
2023).[2]

STATEMENT OF FACTS

Consol Pennsylvania Coal Company, LLC is the owner and operator of Enlow Fork Mine, an underground bituminous coal mine located in Southeastern Pennsylvania. J-1; P-14. In February of 2022, Enlow Fork Mine was liberating in excess of 11 million cubic feet of methane per 24-hour period. Tr. I at 57, 169. At that time, the mine used three portals: Oak Springs Slope, Sparta Portal, and Archer Portal. Tr. I at 27. Most active mining was conducted through the Archer Portal. Tr. I at 27.

I. The Ignition

At approximately
11:18 a.m. on February 16, 2022, a face ignition occurred on the H2 development
section of Enlow Fork Mine. Tr. 1 at 82-83; P-1; P-2. At that time, MSHA
Inspectors Brandon Crutchman and Walter “Bud” Young were conducting regular
quarterly inspections in the Oak Springs side of the mine. Tr. I at 27, 161. At
approximately 11:30 a.m., they met with Matt Roebuck—a company representative—at
the Oak Springs hoist bottom to exit the mine. Tr. I at 27-28, 89, 161-62. It
was at this time that Roebuck received a call on the mine radio reporting that
an ignition had occurred and requesting that he report it to the MSHA
inspectors to investigate. Id. Crutchman, Young, and Roebuck immediately
exited the mine along with Inspector Rob Hutchinson, who had already issued a
verbal 103(k) order to control and preserve the scene of the accident.[3] Tr. I at
28-29; P-2, P-9.

At the surface, Crutchman
and Young learned the location of the ignition and that no injuries occurred.
Tr. I at 32, 162. They gathered the pre-shift and on-shift examiners’ reports,
relevant pages of the mine’s ventilation plan, and a map of the section. Id.
The inspectors then proceeded underground, accompanied by company
representatives—Scott Watson, John Heffelfinger, Gaven Verbosky, Don Blumetti,
Brett Farrell, and Steve Barr—and two inspectors from the Pennsylvania
Department of Environmental Protection—Harry Casteel and Ralph Scott. Tr. I at
32-33, 163. They arrived at the H2 development section via mantrip and met the
section crew who had gathered at the section power center. Tr. I at 33, 91,

163. Crutchman and Young then conducted a group interview of eight miners who
     witnessed the ignition—Sam Stempell, return side bolter; Josh Polk, miner
     operator; Brad Simpson, shift foreman; Cody Gibson, intake side bolter; Justin
     Drew, continuous miner coordinator; Dave Eisenhower, foreman; Tristian
     Demidovich, return rib bolter; and Mike Kuzma, intake rib bolter. Tr. I at 34,
     91, 163-65, 247; Tr. II at 332; P-2.

The miners reported witnessing an orange ball or glow in the face of the number three entry that measured between two and two-and-a-half feet in diameter and lasted approximately ten seconds before self-extinguishing. Tr. I at 34-35, 92, 164-65, 244-48, 258-59; Tr. II at 325; P-2; P-16. Prior to the ignition, the miners had cut the bottom of the coal face underneath the hard rock binder. Tr. I at 198-99, 244. After mining one foot into the middle cut, the ignition occurred. Tr. I at 37, 198-99, 252. When he saw the orange glow, Polk appropriately glanced at the methane monitor which read 0.1 percent, de-energized the continuous miner, and started spraying the area where the ignition occurred with a wash down hose. Tr. I at 111-112, 165, 244, 258-59; P-2.

II. The Investigation

Upon arrival at
the site of the ignition, Young—escorted by Mine Superintendent Steve
Barr—conducted an initial methane check at the number 3 entry that detected
methane levels twelve inches from the roof, face, ribs, and floor between 0.3
and 1.7 percent. Tr. 58, 165-66; P-16. After Young adjusted the ventilation
controls, the methane levels dropped below 1 percent. Id. Young also
observed a methane feeder—a fracture in the coal near the rock binder that was
emitting higher concentrations of methane between 2.7 and 3.4 percent. Tr. I at
58, 113-14, 167; P-16.

Crutchman began his investigation by conducting an imminent danger run of the other entries in the H2 development section. Tr. I at 58, 165-66. Following his return from the imminent danger run, he conducted methane tests that showed the adjustment of the ventilation controls had lowered the level of methane near the feeder to between one and two percent. Tr. I at 58-59, 64, 113; P-2. Crutchman determined the methane levels were safe and modified the 103(k) order to permit Consol to clean up the coal behind the continuous miner and back the machine out of the face area so that they could continue the investigation. Tr. I at 59, 64-65, 102.

After the
continuous miner was removed, Crutchman and Young inspected the methane feeder
and observed a mist of water coming from the rib and a low hiss that would have
been inaudible while the continuous miner was in operation. Tr. I at 59-60, 69,
167-68. Crutchman conducted a test which confirmed that methane was emitting
from the feeder at levels of one to two percent. Tr. I at 59-60, 64.[4] The
inspectors also checked the cutting bits on the head of the continuous miner
and found two bad bits within approximately two feet of each other—one that had
the carbide tip completely worn off and one that was broken off at the lug
where it attached to the cutting head. Tr. I at 69, 172-73; P-1; P-2; P-16. The
bits were located on the right side of the outer sump of the cutting head, in
the area where the ignition occurred. Tr. I at 69, 254-55; P-1; P-2. Polk—the
continuous miner operator—testified at hearing that the damaged bit looked worn
and the broken bit looked like it had been broken by a sulfur ball. Tr. I at
246-47.

As a result of the
investigation, Inspector Crutchman concluded that the direct cause of the
ignition was damaged or missing cutting bits contacting intrusions in the face
area—sulfur balls and laminated sandstone—which then created a spark and
ignited the methane feeder. Tr. I at 82; P-2. Respondent replaced the two bits
in order to abate the violation. Tr. I at 79, 179. The mine also submitted a
ventilation plan addendum to MSHA, which included a requirement that Consol
check the bits on the cutting head of the continuous miner every twenty feet
when mining in the H1 to H5 districts. Tr. I at 81; P-8.[5] MSHA approved
this plan. Id.

A. Conditions in the
H2 Development Section

At the beginning of the shift, the crew examined the cutting bits, sprays, and parameters, and did not find any worn or broken bits. Tr. I at 37, 164, 240; P-2; P-16; R-3. The water pressure at the cutting head measured at 80 P.S.I. with a flow of 62 gallons per minute. Tr. I at 37, 129, 164; P-2; P-16; R-3. The crew used an 18-inch ventilation tube with a 16-inch slider that extended to approximately five feet from the face. Tr. I at 37; P-2; R-3. The crew had mined approximately 47 feet that shift and the continuous miner had not de-energized due to high methane. Tr. I at 37, 109, 164, 245, 252; P-2; P-16. Methane readings on a probe had increased to 0.3 percent during the shift. Tr. I at 37, 164; P-2; P-16.

The mining of the coal seam in the H2 development section was complicated by the presence of a rock binder and sulfur balls. Tr. I at 39, 69, 98, 174. The rock binder—made of hard shale and thin layers of sandstone—measured approximately eight inches and was located 5.7 feet above the bottom of the coal seam. Tr. I at 39, 69, 98, 174; P-2. The miners told the inspectors that they occasionally witnessed sparking while cutting into it. Tr. I at 39, 98; P-2. The inspectors noted that there was evidence of hard rock binder in the ribs as well as the face, indicating that the miners had mined through the binder during the shift. Tr. I at 40-41, 174. Sulfur balls—round, hard rock formations—and a clay vein—an intrusion of clay within the coal seam that indicated a possible source of methane or adverse roof conditions—were also present in the face area. Tr. I at 41-2, 69, 174-75, 246; P-2; P-16. Shale, sandstone, and sulfur balls are harder materials than coal, and mining through them causes bits to wear down faster. Tr. I at 40, 107. This increases the potential for the bits to break and for sparking to occur. Tr. I at 40, 107, 246.

B. The Coal Bed
Methane Well NV-89 Cut Through Plan

Prior to the ignition, the crew was approaching a coal bed methane well (CBM well NV-89), which was drilled laterally into the coal seam from the surface to reduce methane levels. Tr. I at 50, 57, 132, 178-79, 234; P-14. At the time of the ignition, the miners had advanced approximately 20 feet into the minimum working barrier around the suspected location of the well. Tr. I at 38, 50, 52-55; P-2; P-7. This would have been the first intersection of that well. Tr. I at 38. The first intersection of a coal bed methane well can be hazardous because there is no way of knowing if the previous well preparation was sufficient to prevent a methane inundation. Tr. I at 38, 47, 49, 134, 141, 178; P-7.

Mining through
coal bed methane wells is a hazardous process that has the potential to cause
methane to inundate mines, possibly leading to explosions or ignitions. Tr. I
at 42. Respondent has a history of explosions—including one explosion causing
injuries at the Enlow Fork mine—caused by the presence of methane at the coal
face. Tr. I at 74-75, 183. Four of these ignitions occurred on the H Section. Tr.
I at 183. As a result, 30 C.F.R. § 75.1700 prohibits mining through gas wells.
Tr. I at 42. In this case, however, Respondent had submitted a Petition for
Modification to permit mining through the coal bed methane well. Id.
MSHA approved Consol’s Petition for Modification, Docket No. M-2009-039-C, and
Consol submitted a cut-through plan as an addendum to its approved ventilation
plan incorporating approximately 40 additional procedures mandated by MSHA due
to the hazardous nature of mining through gas wells. Tr. I at 45-46; P-7.

As soon as mining encroaches on the minimum working barrier, the mandatory procedures specified in the cut-through plan must be implemented. Tr. I. at 45, 234; P-7. These special procedures are designed to mitigate the risk of methane inundations and associated hazards. Tr. I at 49-50; P-7. Among other things, the mandatory procedures include more frequent methane tests, the application of rock dust to within 20 feet of the face rather than 40 feet, more frequent permissibility checks, daily calibration of the methane monitor on the continuous miner rather than once every 31 days, a prohibition from traveling or working in remote areas of the mine while crews are working within the minimum working barrier, the adjustment of the mining cycle to prevent methane from advancing into other active areas of the mine, and additional equipment to prevent and extinguish fires. Tr. I. at 46, 49, 54, 132-34, 176-77, 234-35; P-7. The procedures also require that the mine notify MSHA in the event that a methane inundation were to occur and normal section ventilation is unable to dilute the methane. Tr. I at 47-48; P-7. At the time the ignition occurred, the mine had implemented the procedures required by the cut through plan. Tr. I at 55. The miners had finished applying rock dust to the entry, ventilation was compliant, and the required firefighting equipment was present and operational. Tr. I at 39, 56, 108.

C. The Testimony of
Michael Bohan—Consol’s Senior Geologist

At hearing there was some controversy as to whether Respondent’s witness, Michael Bohan, was appearing as an expert witness and, if so, whether Respondent had failed to give proper notice of such. Tr. II at 345-348.

Said issues have
been rendered essentially moot in that this Court afforded Bohan’s testimony
little or no probative weight. Often argumentative and non-responsive to the
Secretary’s questioning, Bohan was evasive in answering whether the continuous
miner’s damaged bits posed any risk, including that of ignition.[6]

CONTENTIONS OF THE
PARTIES

The Secretary contends that Respondent violated 30 C.F.R. 75.1725(a) when it failed to maintain a continuous miner in safe operating condition or remove it from service when one bit was damaged and one bit was missing from the cutting head of the machine. In addition to affirming the violation and penalty, the Secretary argues that for Citation No. 9206769, the gravity should be modified from “Reasonably Likely” to “Highly Likely,” and from “Lost Workdays or Restricted Duty” to “Fatal.”

The Respondent contends that this citation should be vacated or—at the very least—modified from “Reasonably Likely” to “Unlikely” gravity and to remove the S&S designation. Respondent argues that it is common for a shower of sparks to occur when the metal bits on a spinning continuous miner drum strike iron pyrite or sulfur balls, and that sparking is well-documented even when cutting bits are in perfect condition. Respondent’s Post-hearing Brief at 3-4. Respondent also contends that the Secretary did not produce adequate evidence to support the “reasonably likely” gravity designation, and that the S&S designation is not warranted because the continuous miner operator immediately stopped the machine and called MSHA when the bits sparked, thereby negating the possibility of a hazard.

BURDEN OF PROOF
AND STANDARD OF PROOF

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

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

The United States
Supreme Court has held that “[b]efore any such burden can be satisfied in the
first instance, the factfinder must evaluate the raw evidence, finding it to be
sufficiently reliable and sufficiently probative to demonstrate the truth of
the asserted proposition with the requisite degree of certainty.” Concrete
Pipe & Products of California, Inc. v. Constr. Laborers Pension Trust for
S. California. 508 U.S. 602, 622 (1993). The assessment of evidence is a
process of weighing, rather than mere counting: “[T]here is a distinction
between civil and criminal cases in respect to the degree or quantum of evidence
necessary to justify the [trier of fact] in finding their verdict. In civil
cases their duty is to weigh the evidence carefully, and to find for the party
in whose favor it preponderates.” Lilienthal’s Tobacco v. United States, 97
U.S. 237, 266 (1877).[7]
While the Secretary must prove the elements of a citation by a preponderance of
the evidence, this Court’s factual determinations must be supported by
substantial evidence.

ANALYSIS

Following the investigation of the ignition, Crutchman issued Citation No. 9206769 for a violation of 30 C.F.R. 75.1725(a). Crutchman determined the violation was reasonably likely to result in injuries causing lost workdays or restricted duty to five miners and designated it as S&S. Tr. I at 74-77; P-1. He explained that he evaluated the gravity as S&S and reasonably likely due to the violation of a mandatory safety standard; the existence of a discrete hazard; the fact that the mine liberates over 11 million cubic feet of methane per day; the presence of anomalies in the coal such as a hard shale binder with sandstone and sulfur balls that could cause sparking; the mine’s history of approximately 14 ignitions, several of which were caused by bad bits; and the fact that the miners were anticipating mining through CBM well NV-89. Tr. I at 74, 149. He also noted that a prior ignition at the mine had burned a miner and damaged the section where the ignition occurred. Tr. I at 75. Crutchman testified that based on the facts uncovered during his investigation, he would have marked the citation as S&S and reasonably likely even absent the occurrence of an ignition. Tr. I at 79.

Crutchman further evaluated the gravity of the violation to include injuries resulting in lost workdays restricted duty based on the burns that could be expected or due to smoke inhalation by miners trying to extinguish the ignition. Tr. I at 76. He considered five miners to be affected by the hazards presented by the damaged and missing bits because there were five miners working in the immediate area—the continuous miner operator, the left-side roof bolter, the left-side rib bolter, the right-side roof bolter, and the right-side rib bolter. Tr. I at 76.

I. **The Secretary carried
his burden of proving a violation of 30 C.F.R. 75.1725(a). **

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).

Section 75.1725(a) provides, in pertinent part, “Mobile and stationary 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). The question, then, is whether or not the equipment in this case was “unsafe.” The Commission has established that the standard for a Section 75.1725(a) violation is 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.” Otis Elevator Co. v. Sec'y of Lab., 921 F.2d 1285, 1291 (D.C. Cir. 1990) (citing Alabama By–Products Corp., 4 FMSHRC 2128, 2129 (1982)).

In 2013, MSHA
issued public guidance stating that MSHA considers the operation of continuous
mining machines with damaged or missing cutting bits unsafe because mining with
damaged, worn, or missing cutting bits can result in sparks—the most common
source of methane ignitions. Tr. I at 73; P-13. This guidance was validated on
March 31, 2021, and is currently in effect through March 31, 2024. P-13. Specifically,
this guidance states that “[c]utting coal or rock with continuous mining
machines or longwall shearers that have damaged, worn, or missing cutting bits
have ignited methane resulting in serious injuries and fatalities.” Tr. I at
73; P-13.[8]

• *

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 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, it is undisputed that the machinery contained two missing or damaged bits. There is credible testimony and evidence that missing and damaged bits increase the chances of sparking when mining and—in the presence of methane—the chances of ignition. See Tr. I at 40, 73, 184; Tr. II at 323-24; P-13. Methane face ignitions are commonly understood to lead to explosions resulting in serious injury and death. In fact, Enlow Fork Mine itself has a history of 14 methane face ignitions since 2017, and the mine experienced at least one explosion caused by a methane face ignition that resulted in serious injuries to a miner. See Tr. I at 74-75, 183.

At this step, I need not address 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 these missing and damaged bits. A reasonably prudent miner familiar with the mining industry and the factual circumstances surrounding damaged and missing bits—the observed sparking, the slow-moving and difficult mining progress, the presence of the hard binder and sulfur balls, and the proximity to the CBM well—would recognize that operating a continuous miner with damaged or missing bits presents the hazard of methane ignitions. I find that Respondent failed to maintain the continuous miner in safe operating condition and failed to remove the continuous miner from service when in an unsafe condition. Therefore, I find that Respondent violated section 75.1725(a).

II. The violation of
30 C.F.R. § 75.1725(a) was significant and substantial in nature.

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. the underlying violation of a mandatory safety standard;

2. the violation was reasonably likely to cause the occurrence of the discrete safety hazard against which the standard is directed;

3. the occurrence of 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.”).

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

A. A violation of a mandatory
safety standard occurred.

The facts and
discussion supra establish a violation of 30 C.F.R. § 75.1725(a), which
is a mandatory safety standard.

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

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

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 contends that “[b]y operating
the continuous miner in an unsafe condition, Consol placed miners at risk of
serious injury or death due to the high likelihood of an ignition, fire, or
explosion.” Therefore, the specific hazard here is one of ignition, fire, or
explosion caused by sparks from damaged or missing bits striking iron pyrite or
sulfur balls.

The
remaining issue is whether a reasonable likelihood exists that the damaged or
missing bits will spark and cause an ignition, fire, or explosion. The likelihood
of hazard should be based upon the “particular facts surrounding the
violation.” Newtown Energy, Inc., 38 FMSHRC at 2038. Operating the
continuous miner on the H2 development section while there was one damaged bit
and one missing bit on the cutting head posed a discrete safety hazard to
miners because it was highly likely to lead to—and in fact did lead to—a face
ignition. Damaged and worn bits increase the potential for sparking when
mining, and in the presence of methane, sparking is highly likely to lead to an
ignition, as it did here. Tr. I at 40, 73, 184; P-13.

As a
matter of logic and common sense, I find that an event that has occurred
is reasonably likely to occur. Methane face ignitions are, without a
doubt, a discrete safety hazard to miners. The particular facts surrounding the
violation created a reasonable likelihood of the occurrence of the hazard
against which 30 C.F.R. § 75.1725(a) was directed. Mining through hard shale,
sandstone, and sulfur balls further increases the potential for sparking. The
presence of the methane feeder and the machine’s position within the minimum
working barrier of a CBM well makes an ignition even more likely. In view of
the foregoing, this Court finds that the Secretary presented sufficient
evidence to meet the second step of Mathies and Newtown.

C. __Based upon the
particular facts surrounding the violation, the occurrence of the hazard—ignition,
fire, or explosion caused by sparks from damaged or missing bits striking iron
pyrite or sulfur balls—would be reasonably likely to result in an injury that
would be reasonably likely to be serious, and indeed, fatal. __

The third and fourth steps of the Mathies test require a
showing of a reasonable likelihood that the hazard contributed to will result
in an injury, and that the injury in question will be of a reasonably serious
nature.[9] 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—ignition, fire, or explosion caused by sparks from
damaged or missing bits striking iron pyrite or sulfur balls.

Methane ignitions are reasonably likely to result in injuries of a reasonably serious nature, including burns, smoke inhalation, concussive forces, or even death. Methane ignitions have caused serious injuries to miners throughout mining history. Enlow Fork Mine has a history of at least one explosion caused by a methane ignition that resulted in burns to a miner. Tr. I at 75. Twenty-nine miners were killed by an explosion caused by a methane face ignition at the Upper Big Branch Mine in 2010. Tr. I at 85, 186-87. MSHA determined that the face ignition at Upper Big Branch that led to the explosion was caused by two damaged bits on the shearer cutting head. Tr. I at 86, 186.

An inspector’s
judgment is an important factor in determining whether there is “a reasonable
likelihood that the hazard contributed to will result in an injury.” Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (1998). Given the evidence
presented and the reasonable inferences flowing from such, I find that the
inspector reasonably concluded that the expected injury would affect five
miners and that, as discussed supra, the resulting injury would
reasonably cause injuries at least as serious as lost workdays or restricted
duty. I therefore find that the hazard—ignition, fire, or explosion caused by
sparks from damaged or missing bits striking iron pyrite or sulfur balls—would
be reasonably likely to cause serious injury or death. Accordingly, the third
and fourth step of Mathies and Newtown are met.

III. The low level of
negligence designated by the inspector is supported by a totality of the
circumstances.

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

Inspector Crutchman testified that he found the operator to be negligent for the following reasons: (1) The miners that reported the incident were experiencing difficulties cutting through the binder; (2) the miners reported observing frequent sparking; and (3) the miners anticipated mining through a well and should have known to check for increased wear on the bits. Tr. I at 76. Based on this, Crutchman reasoned that the operator should have known that there was an increased chance for wear on the bits when mining was difficult and slow-going, which could have led to increased sparking and the potential for an ignition. Tr. I at 76-78, 116. I agree with his reasoning.

Inspector Crutchman evaluated negligence as “low” due to the following considerable mitigating circumstances: (1) the mine was in compliance with its ventilation plan and all applicable provisions of the cut-through plan for the well; (2) only one of the 67 water sprays was not working correctly; (3) the atomizer sprays were working correctly; and (4) the miners inspected the bits on the cutting head at the beginning of the shift and did not find any bits that were missing or damaged. Tr. I at 76-77, 108, 130-31, 185.

I agree with the Secretary that the mining conditions were difficult and warranted checking the bits more frequently. The bits were likely damaged when the continuous miner cut through the hard binder and sulfur balls, but the inspectors were unable to determine the exact time when the bits were worn or broken. Considering the totality of the circumstances, this Court finds low negligence to be appropriate for Respondent’s failure to adhere to § 75.1725(a) requirements.

IV. **The originally
assessed penalty of $716.00 for the violation is appropriate. **

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

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

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

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

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

The Secretary has proposed a penalty of $716.00 for the violation cited in Citation No. 9206769. I have considered and applied the six penalty criteria found in § 110(i) of the Act. Considering all the circumstances, the Secretary’s original proposed penalty assessment appears appropriate.

The mine and its controlling entity
are considered large in size under 30 C.F.R. § 100.3. The parties stipulated
that payment of the proposed total penalty would not affect Respondent’s
ability to continue in business. Jt. Stip. 6. The history of assessed
violations, admitted into evidence at Ex. P-1, showed 10 violations of this
standard at this mine in the two years prior to issuance of this citation. See
also Tr. I at 73-74.

I have addressed
negligence and gravity in the discussion above. This Court notes that Respondent’s
argument for a reduced penalty rests upon a modification of the gravity finding
from “Reasonably Likely” to “Unlikely,” and the removal of the S&S
designation. For reasons already discussed supra, this Court rejects
such suggested modifications. Finally, while accepting that Respondent acted in
good faith in abating the dangerous condition, this Court accords more weight
to the gravity of the violation and the reasonable likelihood of serious or fatal
injury posed by the hazard in determining an appropriate penalty.

Based on the foregoing, this Court finds that a penalty of $716.00 is appropriate.

ORDER

The Respondent,
Consol Pennsylvania Coal Company, is ORDERED to pay the Secretary of
Labor the sum of $716.00 within 30 days of this order.[10]

/s/
John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Ryan M. Kooi,
Esq., Office of the Solicitor, Division of Mine Safety and Health, 201 12th
Street South, Suite 401, Arlington, VA 22202-5450 ([email protected])

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

Craig Aaron,
CONSOL Energy, Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, ([email protected])

[1]
This docket originally included four citations. Prior to hearing, the parties
settled Citation Nos. 9205021, 9204786, and 9205026. A Decision Approving
Partial Settlement was issued on May 18, 2023.

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

[3]
Inspector Hutchinson has since retired and was unavailable to testify at
hearing, as he resides outside of subpoena range under Fed. R. Civ. P. 45(c).
Tr. I. at 29.

[4] The
inspectors discovered that the methane monitor mounted on the continuous miner
detected a lower level of methane than their monitors—2.2 percent compared to
2.5 percent—and issued a citation for failing to maintain the methane monitor
in permissible and proper operating condition. Tr. I at 66; P-3. This citation
was issued as non-contributory to the face ignition. Tr. I at 66-68, 184-85.

[5]
Since Consol implemented this addendum, there have been no further ignitions in
the H district. Tr. I at 81-82, 183. However, there have been additional
ignitions in the G District, which does not require more frequent bit checks.
Tr. I at 82.

[6]
This Court specifically rejects the Respondent’s and Bohan’s implications that
the “glow” caused by the frictional contact of the continuous miner with a sulfur
ball was comparable to the benign bioluminescence of a lightning bug.

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

[8]
MSHA’s internal policy is to issue a citation for two or more damaged or
missing bits when they are within four feet of each other on the continuous
miner head. Tr. I at 73, 121.

[9]
The Commission expected that the third and fourth steps of the Mathies
test would “often be combined in a single showing.” Knox Creek, 811 F.3d
at 163, citing Mathies, 6 FMSHRC at 3-4.

[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.