Secretary of Labor v. Clintwood Elkhorn Mining Company, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

A miner fell nearly 22 feet from an elevated platform at Clintwood Elkhorn's preparation plant and sustained head, wrist, and other injuries. Judge Priscilla M. Rae vacated a citation alleging an unprotected opening because the space between the platform edge and nearby wall was not an opening under the cited rule and the operator lacked fair notice. She also vacated the fall-protection citation because the company had specific training, available equipment, nearby warning signs, and a disciplinary program, and vacated the related examination order. The judge upheld the failure-to-report order because a fall of that height with head trauma had a reasonable potential to cause death and had to be reported within 15 minutes. She also upheld the accident-scene citation because management installed handrails, cleaned the area, and replaced equipment before MSHA completed its investigation, and she assessed total penalties of $29,600.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.10(b), 50.12, 77.1710(g), 77.1713, and 77.204
• Outcome: Three citations or orders were vacated, two were affirmed, and total penalties of $29,600 were assessed.
• Key point: A serious fall with head trauma must be reported promptly based on the accident's apparent potential, without waiting for a clinical diagnosis.

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: 202-434-9958 I FAX: 202-434-9949

May 15, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),                                                                                                                                      CIVIL
PENALTY PROCEEDINGS

Petitioner                                                                                                                            Docket
No. KENT 2011-1354

A.C. No. 15-16734-259098

Docket No. KENT 2011-1385

A.C. No. 15-16734-260061-01

v.

Docket No. KENT 2011-1386

A.C. No. 15-16734-260061-02

CLINTWOOD ELKHORN MINING COMPANY, INC.,

Respondent

Mine: Clintwood Elkhorn II

AMENDED DECISION

Appearances:               Willow Fort, Esq., U.S. Department of Labor, Nashville, Tennessee, for Petitioner

Melanie J. Kilpatrick, Esq., Rajkovich, Williams,
Kilpatrick & True, PLLC, Lexington, Kentucky, for Respondent

Before:            Judge Rae

These cases are before me upon petitions for assessment of a civil penalty
under section 105(d) ofthe Federal Mine Safety and Health Act of 1977,30
U.S.C. § 815(d).
The Secretary's petitions allege
that Clintwood Elkhorn
Mining Company, Inc. ("Clintwood") is liable for a total of five violations; three violations of the Secretary's mandatory safety standards for surface coal mines and surface work areas of underground coal mines, two violations of "notification ...of
accidents, injuries ...in mines." 30 C.F.R. §§50, 77. They propose
the imposition of penalties
totaling $168,600.00. The parties presented testimony and documentary evidence at a hearing
in Pikeville, Kentucky. Post-hearing briefs were submitted by both parties.

After consideration of evidence on the record and post-hearing briefs submitted by the parties, I find that the
Secretary has proven a violation
of MSHA standards as alleged in two of
the citations. I impose civil penalties in the total amount of $29,600.00 for the violations.

The parties submitted
the following stipulations: 1) 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; 2) Todd Belcher
and Nathan Mounts, whose signatures appear in Citation
Nos. 8247826 and 8247827,
were citing in the official capacity
as MSHA employees and authorized representatives of the Secretary
of Labor when the citations were issued; 3) True copies of the citations were served on Respondent
as required by the Mine Act; 4) The total proposed penalties
in this case will not affect
Respondent's ability to remain in business; 5) The alleged
violations were abated in good faith. Ex. J-1.

Findings of Fact and Conclusions of Law

The Clintwood Elkhorn
II mine is a surface
coal preparation plant located in Pike 
County, Kentucky. Tr. 22. The plant contains a
series of belts
used to transport coal from the
deep mine and to stockpiles outside of the plant.
Tr. 34, 235. The coal inside the plant is washed
and cleaned to remove rock and clay. Tr. 36, 235. The coal
is then transferred to one of six clean
coal stocker areas depending
on its blend. Tr. 34-35,
235, 270. A stocker is a large
concrete cone that holds coal. Tr. 269-70. Flop gates, located inside the plant, are used to direct the coal into

the stockpiles. Tr.II 18.1

On January 18,2011, MSHA Headquarters in Arlington received
a call from a member of
the news media who had heard the ambulance dispatch, asking for information on an accident
at the Clintwood Elkhorn
II Mine. Tr. 125.  MSHA Headquarters, not having heard about an accident, called the district
office, which also did not have a report of an accident
at the mine. Tr. 125. MSHA Inspector Nathan
Mounts2 was instructed to visit the mine the same day and arrived around 1:00 p.m. Tr. 125. MSHA Inspector Todd Belcher3 arrived at the mine on January 19, 2011
to conduct an accident investigation. Tr. 78.

1 
The use of
"Tr." refers to the hearing
transcript for December 10, 2013.   The use of
"Tr.II" refers to the hearing transcript for December 11, 2013.

2  
Nathan Mounts is a health
inspector for MSHA. Tr. 13-14.  His duties include observing
and evaluating respirable dust parameters as well as evaluating noise and health related issues to dust and
noise. Tr. 14. At the time that he issued
the two citations below, Mounts
had been a general
inspector for about 3 years. Tr. 15-16.  Prior to joining MSHA, he was an underground coal miner, foreman, and equipment operator
for Massey Energy
for 12 years. Tr. 16.

3 Todd Belcher
has been a ground control
surface specialist for MSHA since 2007.
Tr. 73-74, 75. His duties include
reviewing and sending
ground control plans for acknowledgement, inspections as needed, and accident investigations. Tr. 74. Belcher
received accident investigation training in 2009 and assisted in investigations prior to that. Tr. 75. Since the training, he has participated in 12 to 15 accident investigations, leading all but one or two. Tr. 77-78. Prior to joining
MSHA, Belcher worked at Cam Mining for over a year and was an inspector for the Kentucky Department of Surface Mining for 14 of his 21 years
there. Tr. 94-95.

The details of how the accident happened
are largely undisputed.  Between 4:30a.m. and 5:00a.m.
on January 18, 2011, Christopher Bowling, a miner,
was standing on an elevated
metal platform, located between
the second and third floors
of the plant, trying to manually switch the
flop gate to the old syn-fuel stacker
6 when he fell from it. Tr. 25, 30-33,
86-87, 251, 353; Ex. S- 4 at 3, S-6 at 2, 5. The platform
was accessed by going down steps from the third floor and climbing through handrails and was elevated
almost 22 feet above the mine floor.
Tr. 85, 353. Bowling stated that he had
no memory of the fall but believed
his hands slipped
on the lever operating the flop gate and he fell backwards.
 Ex.
S-5 at 9. No one witnessed the fall but several employees responded shortly
thereafter.  He had been taken away by ambulance by the
time MSHA investigators arrived at the scene.

As a result of Mounts' inspection and Belcher's investigation, the five citations discussed below were issued.

KENT 2011-1354

Citation No. 8247826

Citation No. 8247826
was issued by Mounts on January
18, 2011 at 1:14 p.m., pursuant to section 104(d)(1) of the Act. 4   It alleges a violation of30 C.P.R. § 77.2045 which states, "[o]penings in surface installations through which men or material may fall shall be protected
by railings, barriers, covers or other protective devices." The violation was described in the citation as follows:6

On Tuesday, January
18, 2011, a serious fall type accident
occurred at the Clintwood Elkhorn Mining Company
preparation plant.

A plant employee, who was located at the flop gate
for the belt conveyor leading to the syn-fuel storage
area, fell to the concrete
floor located approximately 20 feet below, receiving multiple injuries as a result.

As a result of the accident investigation and based on additional information obtained from witness interviews and an on-site
inspection of the area, this violation is being modified
to reflect changes
that describe the condition or practice being cited.

4 This citation was originally issued as a 104(a) citation
but was modified
to a 104(d)(1) citation by Belcher
after further evaluation and gathering of evidence.
Ex. S-2 at 2. Mounts
was not consulted about this change.
Tr. 60-61.

5 The alleged
violated section was amended from 77.205(e) to 77.204 in an Order Granting
Secretary's Motion to Amend issued on February
12, 2013.  Mounts
was not consulted about the modification to the cited
section. Tr. 60-61.

6  Grammatical errors in the descriptions from the "Condition or Practice" sections
of the citations and orders have been corrected, and subsequent modifications to the citations and orders have been included.

The accident investigation revealed that handrails
were not provided
on the landing between
the second and third floors
at the flop gate for the belt going to the old syn-fuel
storage area. This area is approximately 20 feet
above  the concrete floor
and metal conveyor
belt cover below.
As a result, at 0430 hours, a serious accident occurred resulting in an employee
seeking medical attention due to the fall.

This is an unwarrantable failure
to comply with a mandatory standard. Ex. S-2 at 2.

Mounts determined that an injury occurred
as a result of the violation and was reasonably expected to result in lost workdays
or restricted duty, that the violation was significant and substantial ("S&S"), that one person was affected, that the level of negligence
was high, and that
the violation was the result of an unwarrantable failure
to comply with a mandatory
standard. Ex. S-2 at 1, 2.  The Secretary
proposed a penalty
of $70,000.00.

The Violation Secretary's Evidence

When Mounts arrived at the mine, he was met by foremen Robert Hinkle and Jim East and
taken to the accident scene.
Tr. 28.  Before
arriving at the area where the accident
occurred, Hinkle and East informed Mounts that handrails
had been installed
on the platform. Tr. 28; Ex.
S-4 at 3, S-6 at 4, 5.  The handrails
were installed around the platform
from which Bowling
fell. Tr. 32; Ex. S-4 at 3, S-6 at 4, 5. Based on this information, Mounts issued Respondent
a citation for not having handrails
prior to the accident. Tr. 28, 32-33.

The Secretary's initial theory of the case was that this elevated
platform required handrails around it under section 77.205(e), which states
"[c]rossovers, elevated walkways ... shall
be ...provided with handrails
...." Just prior to hearing, the Secretary
sought and was granted leave to amend the standard
to section 77.204,
which states that "[o]penings
in surface installations through
which men or material may fall shall
be protected by railings,
barriers, covers or other protective devices." The later theory
being that the space between
the edge of a
platform and an adjacent wall could be considered an "opening" under the standard.

Mounts believed
the work platform
was hazardous because
there was no barrier to protect
miners from falling off of it. Tr. 33, 40. He stated
that Hinkle and East informed
him that Bowling was on the platform, attempting to manually flop the gate, because the mechanical
switch was broken. Tr. 33-34,

36. When questioned about the "opening" between the edge of the platform and the wall,
    Mounts confirmed that he interpreted it to mean that openings
    do not need to have handrails
    if it can be covered
    by other protective devices that are deemed safe. Tr. 61-62.

Belcher believed
the area between
the edge of the platform
and the wall was a hazard
because there were no handrails
or cover present and it was big enough for a person
to fall through.  He posited that pushing or pulling a lever to switch the flop gate could cause a miner to
slip and lose his balance,
which likely happened
to Bowling. Tr. 105, 106-07.

Respondent's Evidence

Superintendent Sullivan7 confirmed during his testimony
that prior to this accident, handrails were not present
on the platform. Tr. 254.  He believed
that handrails were not required if a safety device was worn and considered fall protection a protective device that satisfied
the requirements of section
77.204. Tr. 254, 295.
 Sullivan stated that a miner wearing
fall protection would tie off on round metal
eyes attached to the chute in the plant. Tr. 254.

Analysis

Respondent argues that the Secretary
is trying to avoid the issue that handrails are not
required by part 77 by changing
the cited standard
and claiming that the edge of the platform is an opening. Resp.
Br. at 7. Mounts clearly
believed that the regulations called
for handrails around the elevated platform
and the Secretary
amended the citation
in an attempt to salvage
it. What the Secretary
refers to as an opening
is really the edge of a platform
that happens to have a wall
nearby. There were other platforms in the plant that were similarly situated
for which citations were never issued.
Tr. 258-59. Belcher
also focused on the fact
that there were no
handrails present on the platform.
Ex. S-5 at 13. While Respondent believed
that it was a hazard to not have handrails on the platform
and it installed them, there is unfortunately no requirement in part 77 for elevated
work platforms to have handrails.8  In addition, the presence of handrails,
even though used to abate the citation,
would not have prevented small objects from falling off the
platform because there was large
gap between the platform and the first railing Ex. S-6 at 5;
Resp. Br. at 9 n.10.
 This further evidences the fact that neither Belcher
nor Mounts were concerned about or considered the area between
the edge of the platform
and the nearby wall to be an "opening" as set for in section
77.204 at the time that the citation
was originally issued.  It is further noted that the Secretary
failed to prove that the miner fell through this alleged opening. Bowling stated that he believed he fell backwards, which would mean he fell off the long edge of
the platform behind the flop gate. Ex. S-5 at 9.
 No
one witnessed his fall.

7  Homer Sullivan
has been the plant superintendent for the past 6 years. Tr. 234.  He has a duty to
oversee the production
of coal and the safety
of all employees. Tr. 235.  Prior to becoming
superintendent, Sullivan was a plant foreman for 7 years. Tr. 236.  He is also a certified mine emergency technician (MET). Tr. 236.

8 As being familiar with the mining
industry and from previous ALJ decisions, MSHA has been put
on sufficient notice that it should clarify
what an opening
is and promulgate regulations to require handrails on elevated
working platforms. Sunbeam Coal Corp.,
2 FMSHRC 192, 221
(Jan. 1980) (ALJ) ("[I]f MSHA desires to provide barriers and other protective devices to
prevent personnel from falling off an elevated
platform [also used as a work station],
it should promulgate a precise standard
to cover that situation."). As it stands
now, travelways and work
platforms are distinguished from elevated walkways in section
205(b) in that they must only be kept
clear of extraneous materials and slipping
hazards. 30 U.S.C. §
205(b).

Therefore, I find that the area between
the edge of a platform
and a nearby wall is not an opening as a matter of law and that Respondent did not violate
the cited standard. Citation No. 8247826 is hereby VACATED.

Fair Notice Argument

Assuming, arguendo, that the space between
the edge of the platform
and the wall could be considered an opening, I find that Respondent did not have fair notice.

"[D]ue process considerations preclude the adoption
of an agency's interpretation which 'fails to give fair warning of the conduct
it prohibits or requires."' LaFarge North America, 35 FMSHRC 3497,3500
(Dec. 2013); Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). "The Commission's test for notice under the Mine Act is 'whether
a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard."' Wolf Run Mining Co., 32
FMSHRC 1669, 1682 (Dec. 2010).
A number of factors are relevant to this determination, including "the
text of a regulation, its placement in the overall
regulatory scheme, its regulatory
history, the consistency of the agency's enforcement, and whether MSHA has published
notices informing the regulated community with ascertainable certainty of its interpretation of the
standard in question." Id.

Sullivan testified that the platform
was installed in 2006 and MSHA was made aware of
this because it gave a courtesy inspection. Tr. 255. MSHA did not tell
Respondent that handrails or any other protective devices were needed. Tr. 255. Since 2006,
two inspections per year have been done by MSHA, none of which resulted
in the issuance of a citation,
despite the fact that

the platform
is easily visible
from the steps that lead to a new addition. Tr. 256-57, 258. In
addition, there were several other platforms without
handrails in the plant and citations were never issued for those areas
either. Tr. 258-59.
Sullivan stated that when he
asked Silas Adkins, now the manager of the Elkhorn
Office, why the plant
had never been cited for the condition
before, Adkins replied
that it was not an issue until the accident happened. Tr. 260. I find this testimony by Sullivan to be credible.

Belcher confirmed that the plant is inspected
in its entirety every 6 months.
Tr. 172. He did not ask past inspectors whether they ever inspected the platform and just assumed that no one
from MSHA ever saw the platform. Tr. 172-73. I find this statement to be improbable at best, particularly in light of Sullivan's testimony
that the lack of handrails was not an issue
until someone was injured.

What constitutes an opening
and the devices
that can be used to protect
an opening are open
to broad interpretation. MSHA has not published any notices informing
the regulated community of its interpretation of the standard, it performed a courtesy inspection of the platform when it was installed, and it has performed about 12 full inspections of the plant over
the course of 6 years and has never issued a citation
under section 77.204. Just because an accident occurs does not mean that a condition
never considered by MSHA to be a violation
in the past, automatically becomes one for MSHA's convenience of imposing a penalty. Under these circumstances, I find that a reasonably prudent
person familiar with the mining industry

and protective purposes of the standard would not have recognized the requirements of section
77.204 as being
applicable to the area between
the edge of a platform
and a nearby wall. Therefore, I find that Respondent
lacked fair notice.

Citation No. 8247827

Citation No. 8247827 was issued by Mounts on January
18, 2011 at 2:16p.m., pursuant to section
104(a) of the Act. It alleges a violation of 30 C.F.R. § 77.171O(g) which states,
"each employee ... shall be required to wear protective clothing and devices as indicated
below ...
[s]afety belts and lines where
there is a danger of falling ...." The violation was described in the citation as follows:

An accident
occurred on 1118/2011
due to an employee (Christopher Bowling)
not wearing fall protection while working from an elevated
platform. The employee fell approximately 20 feet onto the concrete
floor and metal conveyor belt cover below.
No handrails were in place
to prevent a person from falling and
Citation No. 8247826 was issued for this condition. The employee had to seek
medical attention from injuries sustained from the fall.

Standard 77.1710(g) was cited two times in the two years at mine 1516734
(0 to the operator, 2 to a contractor).

Ex.
S-3 at 1.

Mounts determined that an injury occurred as a result of the violation and was reasonably expected to result in lost workdays
or restricted duty, that the violation was
S&S, that one person was affected,
and that the level of negligence was high. Ex. S-3 at 1. The Secretary proposed
a penalty of $31,000.00.

The Violation Secretary's Evidence

Mounts stated that he issued this citation because
East and Hinkle made statements that Bowling
was not wearing fall protection
when he was switching the flop gate on the platform and fell through
an opening. Tr. 52.
 Mounts was of the opinion that
even with handrails installed, fall protection needed
to be worn. Tr. 53-54.  In addition, Belcher testified
that there were no warning
signs to use fall protection
posted in the area where Bowling fell. Tr. 224.

In Southwestern Illinois, the Commission approved the ALJ's
interpretation of the
language, "shall be required to wear" in section 77.171O(g) to mean that the operator
must require each employee to wear safety
belts when needed.
Southwestern Illinois Coal
Corp., 5 FMSHRC 1672, 1674-75 (Oct.
1983). Specifically, the Commission stated,

"[t]he regulation does not state that the operator must guarantee that belts and safety lines are actually
worn, but rather
says only that each employee
shall be required to wear them. The plain meaning of "require" is to ask for, call for, or demand
that something be done. . . . Accordingly, when an operator
requires its employees to wear belts
when needed, and enforces that requirement, it has
discharged its obligation under the regulation."

Southwestern Illinois
Coal Corp., 5 FMSHRC at 1675; see also Southwestern Illinois Coal Corp., 7 FMSHRC 610 (1985) (hereinafter SOCO /[).

The Secretary maintains that based on Southwestern Illinois, Respondent violated
the standard, stating that
the Commission found a violation even though its safety
rules required miners to wear belts and miners
were disciplined for not wearing
belts, the operator
failed to show that the guidelines were "sufficiently specific." Sec'y Br. at 26.

In Southwestern Illinois, the general director of safety and training testified
that the decision to wear fall protection was largely up to the miner.
 This viewpoint was reiterated at oral argument
where counsel stated that the use of a safety belt was optional.
Southwestern Illinois
Coal Corp., 5 FMSHRC at 1676. There were no signs in the mine
reminding employees to wear belts and no safety analysis
or directives were issued to identify situations where belts should be worn. /d.  The Commission
found that the evidence fell short of "demonstrating due diligence in enforcement" and contrasted the case
with that of North American where the operator had a specific
program for avoiding hazards through prominent signs, verbal warnings
and reinforcement of safety
considerations. Id;
North American Coal Corp., 3 IBMA 93 (1974).

Respondent's Evidence

Sullivan stated that the mine has annual
refresher training once a year, which in 2011,
was January 15, 3 days before the accident. Tr. 283; Ex. R-15. Bowling signed in for the training and Sullivan contended that, even though he did not attend
the annual training, fall protection would have been covered
under the accident
prevention heading on the agenda.
Tr. 284-85, 322, 355; Ex. R-15. Sullivan did however confirm that when he arrived
at the scene after Bowling fell,
it did not appear that Bowling was wearing fall protection. Tr. 313. Sullivan and Brian Hurley9 also testified
that safety meetings were held once a week with miners on all shifts, Bowling being one of them. Tr. 283, 358. Hurley stated that he covered
fall protection at least
once a month. Tr. 283, 357. Respondent presented a safety
meeting agenda from September 2010 that included a fatality at another
mine from failure
to use fall protection. Tr. 287-88; Ex. R-2.

9  Brian Hurley has been employed at the Clintwood
Elkhorn II Mine for about 13.5 years.
Tr. 333. He held the position
as third shift foreman in January 2011. Tr. 333. Hurley had been a foreman
for about 7 years at that time and a certified MET since 2001. Tr. 333, 334. Prior to joining Clintwood, he worked for two other coal mine companies as an equipment operator and mechanic. Tr. 336.

In addition, all employees received
handbooks that address
fall protection. Tr. 293.
 The handbook specifically states that if there is a 'potential' to fall from an unprotected work station, safety belts are required.
Ex. R-14 at 8.
 Miners were also aware that they had to wear protection in any area without
handrails and toe boards, and if using a ladder over 6 feet in height,
according to Sullivan. Tr. 284.

Further, Bowling was issued his own personal
safety belt less than 6 months prior to the accident because of his size and there was fall protection
gear readily available. Tr. 358.  There were signs to wear fall protection
located at various
places in the plant. Tr. 284, 358.  Pete
Maynard, electrician, testified
that safety belts were provided
on every floor, including the third
floor which you had to ascend to in order to access the platform.
Tr.II 5, 13. There was also a sign at the entrance to the third floor to wear fall protection which
was about 15 to 20 feet from where Bowling was working.
Tr. 291, Tr.II 31.

Finally, the mine had a disciplinary program
in place that consisted first of a verbal
warning and then referral of the issue to human resources. Tr. 292, 294.  Sullivan had never seen employees working without fall protection on elevated platforms
and Maynard had seen Bowling wearing fall protection in the past. Tr. 294, Tr.II 14-15.  The Secretary
presented no evidence that Respondent was previously issued citations for failing to wear fall protection and Mounts
testified that there was no evidence that anyone was aware, management or otherwise, that Bowling was working on the platform
without it. Tr. 63.

Analysis

In
this case, evidence
was presented of annual refresher
training that occurred
only three days prior to the accident, which addressed fall protection. There were weekly
meetings with miners that addressed
safety issues and it appears
that Bowling attended
these. Fall protection was covered in at least one of these
meetings per month.
Handbooks were distributed to all
miners with clear language of the fall protection requirement. In addition, I credit the testimony
of Maynard, Sullivan, and Hurley
that there was wide availability of fall protection gear, warning signs close
to the platform area that had to be passed by miners
to reach the platform, a disciplinary program for violations of mandatory
standards, and no previous citations issued under this standard. There was also no mention
by any witness that the requirement was lax or left
up to the employee's discretion to wear it, making the facts of this case distinguishable from those
of Southwestern Illinois.

I find that Respondent has demonstrated due diligence in requiring fall protection to be
worn and hereby VACATE Citation
No. 8247827.

Order
No. 8258182

Order No. 8258182
was issued by Belcher on January 21,2011
at 9:00a.m., pursuant
to section 104(d)(1) of the Act.  It alleges a violation of 30 C.F.R. § 77.1713 which requires that an
examination in each active working area be conducted for hazardous conditions and that any hazardous conditions be noted, reported and corrected.
 The
violation was described
in the order as follows:

On Tuesday, January
18, 2011, a serious fall type accident
occurred at the Clintwood Elkhorn Mining Company
preparation plant.

A plant employee, who was located at the flop gate for the belt conveyor leading
to the syn-fuel storage area, fell to the concrete
floor located approximately 20 feet below, receiving multiple injuries as a result.

The accident investigation revealed that the preparation plant foreman assigned to perform the daily examination of the facility
on this date had failed to conduct an
adequate on-shift examination during the night shift of 1/17/2011 to 1/18/2011. A safety hazard existed on a landing
between the second and third floors at the flop gate
for the belt going to the old syn-fuel storage
area and was not recorded in the
daily on-shift book. A handrail was not provided
for the landing at this work
area, resulting in a mine employee falling, striking the belt chute cover, and then
landing onto the first floor
of the plan. The employee
was transported to the
hospital by ambulance for medical
treatment for the injuries he sustained.

The foreman has engaged in aggravated conduct constituting more than ordinary negligence by not making
adequate examinations of active work areas.

This violation is an unwarrantable failure to comply
with a mandatory standard. Ex. S-7 at 1, 2.

Belcher determined that an injury occurred as a result of the violation
and was reasonably expected to result
in lost workdays or restricted duty, that the violation was S&S, that one person was affected, that the level of negligence was high, and that the violation was an unwarrantable failure to comply with a
mandatory standard. Ex. S-7 at 1. The Secretary proposed
a penalty of

$38,000.00.

The Violation Secretary's Evidence

During Belcher's investigation, he reviewed the on-shift examination books for the night
shift of January 17-18, 2011, and found that the "hole" in the floor
had not been marked as a
hazard and had not been adequately protected
to prevent a fall. Tr. 110, 111-12;
Ex. S-11. This indicated to Belcher that an examination of the platform
had not been performed prior to miners accessing it to conduct
work, and if it had been examined,
the exam was inadequate.
Tr. 114,

115. In addition, Belcher
     spoke to the foreman on the January
     17, 2011 night shift and stated
     that the foreman did not say that he failed to inspect
     the platform area. Tr. 166. As a result, he issued
     the above order
     for an inadequate on-shift examination.

Belcher explained that the cited standard requires
that all workplaces be inspected at least
once a shift in order to identify
and correct hazards.
Tr. 113. If work was not going to be
conducted in a particular area during the shift, an exam would not need to be performed. Tr. 113.
While Belcher acknowledged that a miner could
guard themselves with fall protection, he contended that it would not change the fact that there was an "opening" in the floor. Tr. 115, 116.

Respondent's Evidence

As discussed above, Sullivan stated that the platform was installed in 2006, MSHA was
aware of the installation, conducted
a courtesy inspection, and has never issued a citation for an
inadequate exam for failure to list the area between
the edge of the platform
and the wall as a hazard, or notified Respondent that handrails were needed. Tr. 255, 256-57,
260-61. He maintained that the lack of handrails
did not need to be listed as long as fall protection was worn in the area. Tr. 261.

Hurley was the foreman
on duty when Bowling fell. He testified that he examined
the platform from which Bowling fell on January
17 during a pre-shift examination as required by state
law. Tr. 380. In the 7 years that Hurley had been performing on-shift examinations, he had never recorded
missing handrails as a hazard.
Tr. 359. He further contended that the only reason
to flop the gate that Bowling was attempting to flop on January 18 was if the belts were torn or
stopped working, but neither of those things
happened that day. Tr. 373-74.

On January 18, 2011, Hinkle, a foreman,
reported the lack of handrails on the platform as a hazard because Bowling fell from
it. Tr.II 37. He stated
that he never recorded it in prior
exam records because he thought fall protection was sufficient. Tr.II 38; Ex. S-11.

Analysis

Because neither section
204 nor 205 under Part 77 requires
handrails on elevated platforms, and I found that the area between the edge of a platform and a nearby
wall did not constitute an opening, I find that Respondent
did not violate
section 77.1713, Order No. 8258182
is hereby VACATED.

KENT 2011-1385

Order
No. 8258183

Order No. 8258183
was issued by Belcher on January 21, 2011 at 9:00a.m., pursuant to section 104(d)(1) of the
Act. It alleges a violation of30 C.F.R. § 50.10(b) which
states, "[t]he operator shall
immediately contact MSHA at once
without delay and
within 15 minutes
...once the operator
knows or should
know that an accident has occurred involving ... [a]n injury of an
individual at the mine which
has a reasonable potential to cause death." The violation was described in the order
as follows:

On  Tuesday,  January   18,  2011,  a  serious
 fall  type  accident  occurred  at
 the Clintwood Elkhorn
Mining Company preparation plant.

The accident investigation revealed that a plant employee,
who was located
at the flop gate for the belt conveyor
leading to the syn-fuel storage area, fell to the
concrete floor located approximately 20 feet below, receiving multiple
injuries as a result.

The mine operator has failed
to immediately report an accident
that occurred on 1118/2011 to MSHA without
delay and within
15 minutes. A mine employee
fell approximately 20 feet from the landing between
the second and third floors
at the flop gate for the belt going to the old syn-fuel
storage area, striking
the belt chute cover, and then landing
onto the first floor of the plant,
sustaining serious injuries. The employee received multiple
injuries to the head, leg, and wrist.
Based on information gathered during the accident investigation, the mine employee was found temporarily unconscious and unresponsive after the fall.

The employee was transported from the mine site to an area hospital for medical treatment. Injuries
sustained from this type of fall have reasonable potential to cause death.

The mine foreman
has engaged in aggravated conduct
constituting more than ordinary negligence by not immediately reporting
this accident to MSHA without delay within 15 minutes.

This violation is an unwarrantable failure to comply
with a mandatory standard. Ex. S-8 at 1, 2.

Belcher determined that an injury occurred as a result of the violation which was
reasonably expected to result in lost workdays
or restricted duty, that the violation was S&S, that one
person was affected,
that the level of negligence was high, and that the violation was an
unwarrantable failure to comply with a mandatory standard. Ex. S-8 at 1. The Secretary proposed a penalty of $21,900.00.

The Violation

Secretary's Evidence

Belcher arrived at the mine to lead the accident
investigation on January
19, 2011. Tr. 78.
Prior to arriving, he was only aware that someone
had fallen from a platform
area and sustained injuries on January 18. Tr. 126. No report of an accident had been made by
Respondent. Tr. 125.

During the investigation Belcher took measurements from the platform
to the areas below, where Bowling
landed.  He determined
that Bowling fell 17 feet 1 inch from the platform
to the belt chute cover, and another
4 feet 9 inches from the top of the conveyor belt chute cover to
the concrete floor, a total of21 feet 10 inches.
Tr. 85; Ex. S-5 at 2.
 Belcher determined that the accident
was reportable because
of the distance fallen and types of injuries Bowling
received. Tr. 126.

In regards to the distance, Belcher testified that there have been numerous
falls from lesser distances, some as little
as 8 feet, that resulted
in fatalities. Tr. 97. He stated that Bowling
could have fallen straight to the floor,
but because the area was between a wall and the edge of
the platform, Belcher opined that Bowling slid down the wall which helped to break his fall. Tr. 97.

Belcher received information on Bowling's injuries
through interviews with miners who responded to Bowling after he fell and from reviewing the ambulance records.  According to Belcher's notes, Bowling received
stitches to his head and right ear as a result of lacerations, a splint
on his wrist for a fracture, and a cut on his chin. Tr. 131-32; S-5 at 10. Upon contacting the witnesses on January  19, Belcher
was told by Shawn Newsome,
tipple operator and MET,
that Bowling was knocked unconscious for approximately 3 minutes. Ex. S-5 at 5.
 He
thought Bowling was dying. Id   Bowling's neck was swollen
and he helped to bandage
the wounds and administer oxygen. Tr. 127, 135; Ex. S-5 at 5.
 A
second witness, Quentin
Harr, equipment operator and MET, said that he gave treatment
for shock. Tr. 136; Ex. S-5 at 5.
 A third witness, Will McCoy, clean coal dozer operator,
stated that he arrived a minute after the accident
and found Bowling was not responding, talking, or moving.  He believed
Bowling was hurt badly.
Tr. 136; Ex. S-5 at 5.

Hurley, told Belcher
that he was the first or second
person to reach Bowling after the fall and
he called 911 and applied
bandages. Bowling knew his name, was responding, and his blood pressure and pulse were okay. Tr. 137; Ex. S-5 at 7-8. Belcher
also spoke with Bowling who said
he could not remember what happened but did not recall being unconscious. He stated that he
was disoriented. Tr. 196.

Belcher testified that he read the ambulance
report in an attempt to verify the witness'
statements. Tr. 220. He noted that the report stated,
"LOC, [d]oesn't remember
falling" and based on his MET experience, assumed
that LOC meant loss of consciousness. Tr. 138, 140; Ex.
S-9 at 2. However, on cross-examination, Belcher did concede,
based on the definition of LOC
in a medical dictionary, that the acronym
could mean loss of consciousness or level of consciousness. Tr. 185.

Based on all of this information, Belcher
believed that the operator should have known that the accident had a reasonable potential to cause death. Tr. 141.
 As
he testified, the extent of head
injuries is not immediately known until further
tests are conducted
at the hospital.  In his opinion, it is not easy to determine whether
someone has injuries
that would not lead to death
within the IS-minute time-frame. Tr. 127.
 Belcher's understanding was that as soon as a person
who is responsible for reporting
the accident becomes
aware of one, and there is a likelihood that a
reasonable potential for death exists, the person must call to notify
MSHA within 15 minutes.

10 Neither Belcher
nor Mounts made a definitive determination that Bowling fell off the right hand edge of the platform where the Secretary, through his amendment, claimed
the opening was. No one witnessed
the fall, there
was no evidence that Bowling
was found lying next to the
wall below the "opening" and he had no recollection of it himself.  This assumption
was made by Belcher
at the hearing after the Secretary amended
his order.  I do not find any facts to substantiate this claim. Tr. 200-01.  He agreed that when an accident
does not have a reasonable potential to be life
threatening, there is a 10-day reporting requirement. Tr. 178-79.

Belcher explained that the purpose
of the 15-minute reporting requirement is to prevent injuries to other miners from the same or similar conditions that may be present in the mine. Tr.

128. Another reason is to ensure
     that evidence is preserved, the accident is investigated properly, and the area is analyzed to determine what hazards need to be corrected to prevent that type of accident from reoccurring. Tr. 129.

Respondent's Evidence

Sullivan, who usually
arrived at work around 5:00a.m.,
testified that his brother, a mine employee, called him on his way to work and notified
him of the fall. Tr. 239.
 Both he and Hurley, the foreman, had the authority
to report the accident to MSHA. Tr. 241, 347.  Because
Sullivan was not present at the mine at the time of the accident,
Hurley would have been
responsible for making the call. Tr. 239, 241.

According to Sullivan,
Bowling was moved onto a backboard so that he did not have to sit up, he checked Bowling
for rib and pelvic fractures, and put Bowling
on oxygen for shallow
breathing and to prevent shock. Tr. 243.  Sullivan maintained
that Bowling never went into shock and he never saw or heard
from another miner that Bowling lost consciousness. 11 Tr. 243, 244, 247-48.  He also stated that he performed
a pupil check which was normal, and there was
not a lot of bleeding.
Tr. 244-45.

Sullivan followed the ambulance from the mine to the hospital and contended that he did not
learn anything at the hospital
that was different
than his first assessment. Tr. 246. He overheard the physician tell Bowling's family that Bowling
would be okay. Tr. 246-47.

After speaking with the safety director, a decision was made not to report the accident
to MSHA because Bowling
knew his name, phone number,
and was "pretty conscious." Tr. 244.
Sullivan contended that if an injury requires
stitches or broken bones are involved, the 10-day reporting period applied. Tr. 241.
 However, Sullivan testified that he was an MET and admitted that a person can suffer a brain injury that may not be apparent within 15 minutes.
Tr. 301.  He did
not remove bandages
around Bowling's head to evaluate the laceration and determined that the
injury was not life-threatening before
Bowling received brain scans at the hospital.
Tr. 304.

Hurley testified
that he was the first person
to reach Bowling after the fall. Tr. 338. As an MET, he first assessed
Bowling's level of consciousness as alert by talking to him and then

drove to the foreman's
office to get the
MET bag. Tr. 340, 341, 360-61. After retrieving the bag, Hurley checked
Bowling's pupils, blood pressure and respirations, which
he found to be

11 
Sullivan did concede that he heard other employees talking about Bowling
losing consciousness the night of January
18 but trusted Hurley and Maynard's account
because he believed they got to Bowling first.
Tr. 247-48.

normal. 12 Tr. 340, 341.
 He
did not notice swelling. Tr. 362.
 Hurley detailed Bowling's injuries in his patient care report as several cuts on the right hand and head, and a 1.5 inch cut on the
right leg. Tr. 341; Ex. R-3.
 He
maintained that if there was a brain injury, there would be a lot of
blood loss, dilated pupils, and confusion. Tr. 343. Oxygen
was administered as a precaution and there was no indication that Bowling was in or going into shock. Tr. 344. As a result
of his evaluation, Hurley did not believe Bowling's injuries were life-threatening and did not report the accident. Tr. 346. He stated that the paramedic
told him he thought Bowling
would be okay and that he heard the physician at the hospital
say that the test results
looked good. Tr. 348, 349.

During cross-examination, the Secretary confronted Hurley with the ambulance report. He specifically pointed out the findings
that Bowling received
nausea medication, and that under
the injuries section for "head," the columns for "blunt," "laceration," "pain," and "swelling"
were checked off. Tr. 363, 365; Ex. S-9 at 2. Hurley questioned how the EMT could have noticed swelling if Bowling was already bandaged
and disagreed that there was swelling. Tr. 364.  Hurley was also unaware that Bowling had nausea but agreed that nausea could be a sign of a brain
injury which could have a reasonable potential
to cause death. Tr. 365, 366-67. He also
admitted that head injuries could take time to increase
in severity. Tr. 367.

Maynard, an electrician without MET certification, testified that after
Bowling fell, he reached
Bowling at about the same time as Hurley did. Tr.II 8, 15.
 Belcher's notes indicate that Maynard arrived first. Ex. S-5 at 9.
 Maynard stayed with Bowling
when Hurley went to retrieve the MET bag and maintained that while Bowling
had injuries to his head and ear, Bowling never lost consciousness and that there was not a lot of blood. Tr.II 9.
 As a result,
he did not think that there was a reasonable potential for death. Tr.II 9.  However, when I asked Maynard what Bowling's complaints were, he stated, "[a]nd we was just trying to, you, know, get him calm to see what actually
was wrong.... He was a little disoriented
 ...
[for] [m]aybe ten minutes,
maybe.  I don't know.   I'm not sure." Tr.II  18-19.

Analysis

Respondent cited several
cases where judges
have vacated section
50.10 citations because the Secretary failed to prove that injuries to the miner did not have a reasonable potential
to cause death and cited a Commission case where a violation of section 50.10 was found where a miner
had stopped breathing
and required CPR. Resp. Br. at 28-32; Cougar Coal Co., 25 FMSHRC 513 (Sept. 2003).
 In
addition, Respondent highlighted that the analysis
should focus on whether mine management representatives acted reasonably in concluding that there was no
reasonable potential for death. Resp. Br. at 30; Oneida Coal Co., 11 FMSHRC
810, 832-33 (May 1989) (ALJ).  Respondent also posed questions during the hearing
in an attempt to argue that an MET
is more qualified to make a determination as to whether
an injury has a reasonable potential to result in death than someone without
this certification. Tr. 181-84.

12              
Hurley testified that he never
saw Bowling lose consciousness and did not hear anyone
say otherwise until days or weeks
after Belcher conducted
his investigation. Tr. 344-45. He believes
that the other miners Belcher
spoke to essentially exaggerated because they were young,
not trained, and scared of what had happened. Tr. 345

In this situation, Respondent's arguments fail for several reasons.  First, in Cougar Coal, the Commission rejected the judge's
construction that "a
medical or clinical
opinion of the potential of death would be needed before an accident is even determined to be reportable," stating that to do so would frustrate the immediate reporting
of near fatal accidents." Cougar Coal Co., 25 FMSHRC at 521.  The Commission goes on to say that "[i]n
the field, the decision to call MSHA cannot be made upon the basis of clinical or hypertechnical opinions
as to a miner's chance of survival.
 The
decision to call MSHA must be made in a matter of minutes
after a serious accident." Id  The focus is on the nature of the accident and the type of injuries,

i.e. head trauma, not the measurement of the probability of resulting death.  Here, a fall of over
20 feet with resulting head injuries per se had the potential
to cause death.

Second, in 2006, MSHA
issued a final rule in the Federal
Register amending the definition of two types of reportable accidents. 71 Fed. Reg. 71430-1
(Dec. 2006). The announcement stated that "[b]ased on MSHA experience and common medical
knowledge, some types of 'injuries
which have a reasonable potential
to cause death' include concussions ... major upper body blunt force
trauma, and cases of intermittent or extended unconsciousness." 71 Fed.
Reg. at 71433-34.

Third, in a recent decision, the Commission clarified a prior decision, stating that "Consol, stands for the proposition that although an operator should be afforded
a reasonable opportunity to investigate, once it is determined that a reportable
accident has occurred, an operator must act immediately to report the incident." Wolf Run Mining Co., 35 FMSHRC 3512, 3518 (Dec. 2013).

The cases cited where ALJ’s vacated
the section 50.10 citations did not involve miners
with head injuries 13 and the Oneida case, which involved a miner with possible internal
injuries from being pinned against a rib by a continuous miner,
was decided in 1989, prior to the Cougar Coal decision and Federal Register
announcement.  While the injuries that the miner in Cougar Coal sustained were clearly more serious than Bowling's, the Commission in no way restricted
50.10(b) violations to situations where a miner requires CPR.

Here, Bowling fell over 20 feet onto a metal-framed piece of machinery
and then to a concrete floor.  He had lacerations on his head, was disoriented for a period
of time, and three
witnesses who Belcher spoke with, two being
METs -one who responded
first to Bowling contrary to Hurley's testimony, stated that Bowling
was unconscious, not responding, had swelling in his neck, and was treated for shock.
 I
find Maynard's statements that Bowling was a
little disoriented for "[m]aybe ten minutes, maybe.   I don't know.
 I'm not sure" to be evasive and non-responsive compared to his statements at the scene as recorded
in Belcher's notes.

13 
The cited cases included
a past Order I issued,
Granting a Motion
for Summary Decision
and Order of Dismissal. PCS Phosphate-White Springs, Unpublished Order dated Jan. 10, 2011. The
facts of PCS are distinguishable from those in this case because there, the miner fell 10 feet and
was examined by an employee
of the mine who was a Licensed
Practical Nurse (LPN) with
training in emergency and intensive care treatment. The employee had also been a U.S. Army
medic for 2 years. Id at 2. An LPN is more qualified than an
MET to make a determination as to
whether an injury has the potential to be life threatening and the miner
fell about half the
distance of Bowling.  In addition,
the Order was issued prior to the Cougar Coal decision. Belcher's notes make it clear the majority
opinion was that Bowling was unconscious and hurt
very badly. I credit the statements recorded in Belcher's
notes as a more accurate
description of Bowling's medical
symptoms following the fall. Hurley
tried to explain
the discrepancy, stating that the miners were young and frightened. Tr. 345. This makes no sense
in light of the fact that
some of them were trained METs. It also begs the question
of how accurate an MET's
decision is on the probability of death on the scene of a traumatic head-injury type of accident. While Sullivan and Hurley's
testimony indicated that Bowling was fine, I find them to be less credible on this issue because
they had a motive
for not reporting the accident.

Belcher testified that under normal
circumstances, when an accident is reported under section 50.10, the entire
plant is closed down until it is inspected and considered safe. Tr. 128-

29. Sullivan testified
    that in October 2010, about 3
    months prior to the accident,
    a truck accident occurred and was immediately reported to MSHA. Tr. 299. The entire
    plant was shut down until an
    expedited hearing was held and it was ruled by the judge that the event did not constitute an immediately reportable accident under section 50.10. Tr. 326-27. Sullivan
    was clearly agitated when discussing this at hearing.
    He also stated that at that time of the year, the only reason to
    send coal to stacker 6 was because
    production was high and all of the other ones were full.
    In fact, directly after the accident, that the plant was up and running
    again after someone
    else climbed onto the platform and manually flopped
    the gate. Tr. 271, 302. Clearly Respondent's foreman had a very
    strong motive not to report
    this accident immediately and have production shut down for an indeterminate amount of
    time as they knew would happen once MSHA
    investigators arrived on the scene and a 103(k) order
    was issued. Ex. S-1 at 6.

A medical opinion
of potential death was not needed before
the accident was reported,
both Sullivan and Hurley conceded
that brain injuries
are not necessarily immediately apparent, the symptoms
reported by witnesses were serious, and Belcher stated that numerous
falls from lesser distances
have resulted in fatalities. In addition, the actions taken by mine management to determine whether or not to report
the accident once they were aware of it, i.e. checking vital signs, retrieving the medical
bag, calling 911, and then discussing the situation with the safety director, took an unreasonable amount of time. Based
on these facts and mine management's motive for not reporting the accident, I find that Respondent knew that the accident had a
reasonable potential to cause death and therefore, that Respondent violated
section 50.1O(b).

S&S

An S&S violation
is a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a ...mine safety or
health hazard." 30 U.S.C. § 814(d). 
A violation is properly designated 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." Cement
Div., Nat'/ Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature
of a violation, the Secretary must prove: (1) the underlying violation; (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 will be
of a reasonably serious nature.
Mathies Coal Co.,
6 FMSHRC 3-4 (Jan. 1984);
accord Buck Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995);
 Austin Power Co., Inc. v. Sec'y of Labor, 861
F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of
the S&S criteria
that is the source of most controversies regarding S&S
findings. The element
is established only if the Secretary proves "a reasonable likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 7
FMSHRC 1125, 1129 (Aug. 1985). An S&S
determination must be based on the particular facts surrounding the violation and must be made in the context
of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC
1125 (Aug. 1985); U.S. Steel,
7 FMSHRC at 1130. The Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S.
Steel Mining Co., 6
FMSHRC 1824, 1836 (Aug. 1984).

I have found that the violation has been established. The Secretary charges
that failure to report the accident
contributed to the discrete safety
hazard, exposing other
miners at the plant to an increased likelihood
of future, similar
accidents. Sec'y Br. at 35. The validity
of the S&S finding turns on whether the failure to report the accident
contributed to a discrete safety
hazard, and whether the hazard was reasonably likely to cause an injury
or injuries of a reasonably serious nature.

The purpose of the 15-minute
reporting requirement is to prevent
injuries to other miners
from the same or similar
conditions that may be present
in the mine and to preserve evidence
so that the accident
can be properly investigated and corrective measures determined. By failing to immediately report the accident,
mine management exposed
other miners to the possibility of having similar accidents.

Belcher's concern for the likelihood of a similar
accident occurring and causing serious injuries was well-founded. Because Respondent did not report this accident
immediately, there was no immediate issuance of a 103(k)
order that restricted access to the platform. As a result, another person climbed up to flop the gate and production continued throughout Bowling's shift. It was not until the following
shift that the handrails were installed. The mine also had a number
of similar situated platforms, thus, under continued normal mining operations, other miners were put
at risk of comparable injuries
by not reporting the accident.

Therefore, I find that the violation was S&S.
 The gravity of the violation was also
serious.  A miner fell from over 20 feet and suffered head and wrist injuries that had the reasonable potential to result in death and the accident went unreported.
 This also put other miners in the plant at risk of similar
injuries.

Unwarrantable  Failure

In Lopke Quarries,
Inc., 23 FMSHRC 705 (July
2001), the Commission stated the law applicable to determining whether a violation
is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an
operator in connection

with a violation. In Emery Mining Corp., 9 FMSHRC
1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure
is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable
care."  Id. at 2003-04;
Rochester & Pittsburgh
 Coal Co., 13 FMSHRC  189, 194 (Feb.
 1991) ("R&P"); see
 also Buck Creek
Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). Whether
conduct is "aggravated" in the
context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors
exist, such as the
length of time that the violation has existed, the extent of the violative
condition, whether the operator
has been placed
on notice that greater efforts are necessary for compliance, the operator's efforts in abating the violative
condition, whether the violation is obvious or poses a high degree
of danger, and the operator's knowledge of the existence
of the violation. See Consolidation Coal Co., 22 FMSHRC  340,  353  (Mar.  2000)
 ("Consof');  Cyprus  Emerald
 Res.  Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd
on other grounds, 195 F.3d 42 (D.C. Cir.1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins &
Sons Coal Co., 16 FMSHRC  192, 195 (Feb. 1994); Peabody 
Coal Co., 14 FMSHRC
1258, 1261 (Aug.
 1992); BethEnergy  Mines, Inc., 14 FMSHRC  1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988).
All of the relevant facts and circumstances of each case must
be examined to determine if an
actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care,
another important factor supporting an unwarrantable failure
determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203,
225 (Mar. 1998).

Lopke
Quarries at 711.

Obviousness,
Degree of Danger, Length of Time and Extent of the Violation

The nature of the accident and the
type of injuries sustained – a fall from over 20 feet with head injuries – made
this a per se obviously reportable accident.  Failure to report the accident
put other miners in the plant at a high risk of falling off the same platform
as Bowling, or falling off another similarly situated platform.  In addition,
Respondent never reported the accident to MSHA.  MSHA only arrived at the mine
after an inquiry was made by the media to MSHA Headquarters asking about the
accident.  The violation existed for an extended period of time.

The extensiveness factor involves consideration of the scope
or magnitude of a violation. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010).
 Respondent had no intention to report this accident until the
10-day report was due. Management took an extensive amount of time to retrieve the MET bag, examine Bowling,
bandage him, report
their findings, and consult the safety director
before deciding whether to report
the accident. The violation was moderately extensive.

Operator's Knowledge of the Existence of the Violation

Management was clearly aware of the accident and the nature
of it shortly after Bowling fell. The foreman
was the one who sent Bowling
up to the platform to flop the gate, as they had been doing this manually
for 5 years. It was also a foreman who had the gate
flopped to resume production immediately after Bowling was taken to the hospital and it was management, Hurley, Sullivan, and the safety director, who made the decision not to report
the accident.

The plant was running
at full capacity when the accident occurred
and the events of October 2010 gave Sullivan
and Hurley motive to not report it in order to prevent the entire plant
from being shut down.  Based
on the fact that the accident was obvious in that in needed to be
immediately reported and mine management had motive for not reporting
it, I find that the operator had knowledge of the existence
of the violation.

Operator Placed
on Notice that Greater Efforts
at Compliance were Necessary and Operator's
Efforts in Abating the Violation

There was no evidence
presented by either party that Respondent was placed on notice
that greater efforts at compliance
were necessary.

The focus of the abatement effort
factor is on compliance efforts
made prior to the issuance of a violation. In general, the factor measures
an operator's response
to violative conditions that were known to it or that should
have been known to it. Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997). It must then be determined whether the efforts "were taken with sufficient care under
the circumstances, even if ultimately unsuccessful in completely preventing a violative
condition." Windsor Coal Co., 21
FMSHRC 997, 1005 n.9 (Sept. 1999). There was no evidence presented
that Respondent made any effort
to notify MSHA and abate the violation. The evidence established that management had no intention of reporting the accident until the
10-day section 50.20 report was due.

I find that Respondent's failure to report this fall from almost 22 feet, resulting in a loss of consciousness and open head injuries to be a complete disregard for the miners' safety.
 It
per se posed a reasonable potential of death.  It appears that the decision
not to report it was to avoid another 103(k) order at a time when production was high.  Failure
to report the accident was not
because Respondent was unaware of the requirement to do so.  I find that Respondent's knowledge of the violation
and the high degree of danger posed by failing
to report it are most significant.  I do not find that the Respondent
had a good faith belief that there was not a
reportable accident under section 50.10, particularly in light of its previous
experience with reporting one in October
of the prior year.  I find that that violation was caused by Respondent's
unwarrantable failure to comply with section 50.10.

Negligence

Belcher determined the level of negligence
to be high because of the seriousness of the accident and the severity of injuries incurred
by Bowling, including loss of consciousness. Tr. 146. In addition,
mine management was aware of the accident
and never reported
it. Tr. 147.

In addition to the facts above,
Sullivan and Hurley
had motive for not reporting the accident, making their
analysis of the situation skewed
and unreliable, as exemplified by several other witnesses reporting
to Belcher a number of details that they failed
to mention. I find the level of negligence was properly marked as high.

KENT 2011-1386

Citation No. 8258184

Citation No. 8258184 was issued by Belcher on January 20, 2011 at 4:00p.m., pursuant to section 104(a) of the Act.
 It
alleges a violation
of 30 C.F.R. § 50.12 which states,
"[u]nless granted permission by a MSHA District Manager
...no operator may alter an accident
site or an accident related area until completion of all investigations pertaining to the accident except to the extent necessary to rescue
or recover an individual, prevent
or eliminate an imminent danger,
or prevent destruction of mining equipment." The violation was described in the citation
as follows:

On Tuesday, January 18, 2011, a serious fall type accident
occurred at the Clintwood Elkhorn Mining Company
preparation plant.

A plant employee, who was located at the flop gate for the belt conveyor
leading to
the syn-fuel storage
area, fell to the concrete
floor located approximately 20 feet
below, receiving multiple
injuries as a result.

The accident investigation revealed
that the operator had altered the accident site without receiving permission from an MSHA District Manager.
Handrails were installed at the landing between
the second and third floors at the flop gate for
the belt
where an accident
occurred on 1/18/2011
prior to the completion of the accident investigation. A handrail was not provided
for the landing at this work area, resulting in a mine employee falling,
striking the belt chute cover, and then landing onto the first
floor of the plant. The employee was transported to the
hospital by ambulance for medical
treatment for the injuries he sustained.

Ex. S-10 at 1, 2.

Belcher determined
that an injury occurred as a result of the violation which was reasonably expected to result in no lost workdays, that one person
was affected, and that the level of
negligence was high. Ex. S-10 at 1. The Secretary
proposed a penalty
of $7,700.00.

Secretary's Evidence

When
Belcher conducted the accident investigation on January  19,2011,
he observed that handrails had been installed
on the platform at the location where Bowling fell. Tr. 149. He
stated that preserving the scene is necessary
to prevent evidence
from being destroyed. Tr. 204. Installing the handrails, even though it made the platform safer, altered the original accident scene. Tr. 208.

Belcher explained that the purpose
of not altering an accident
scene is so that the investigators are able to visualize exactly
what the scene looked like when the accident happened in order to put measures in place to prevent it from happening
again, either at the same location
or another similarly situated location
in the plant. Tr. 122.  When the scene is altered, the investigators must rely on company officials to describe the scene prior to the accident and they
therefore cannot say with certainty
what the scene looked like. Tr. 122, 149, 150.

In
addition, based on the facts that Belcher gathered
about the accident, he did not think that the accident
scene needed to be altered in order
to prevent or eliminate an imminent danger. Tr. 152, 154. Because no imminent danger
existed, Belcher maintained that the MSHA District Manager needed to be notified
and give permission for any alterations to be done. Tr. 151.

Belcher marked the likelihood of injury as occurred with no lost workdays reasonably expected and one person affected. Tr. 155.
 He
also determined that the level
of negligence was high
because Respondent knew that an accident had occurred, it installed the handrails
intentionally, and Respondent did not receive
permission from MSHA to alter the scene. Tr. 157.

Respondent's Evidence

Sullivan testified
that after Bowling fell and was picked up by an ambulance, all of the coal
was cleaned up off the floor, including
the coal that Bowling knocked
over when he fell,
handrails were installed, a ratchet
was replaced where
Bowling was attempting to flop the gate,
and production started again. Tr. 302-303, 309.  At the time that production started,
the results from the brain scans at the hospital were not available. Tr. 302-03.  Sullivan
maintained that installing the handrails was not an attempt to alter the scene or hinder an accident investigation. Tr. 278.

Analysis

In
Cougar Coal, the
Commission found that where a power line, which was involved in an accident, was removed from the scene before MSHA was notified
of the accident or began its
investigation, a violation
of 50.12 existed.
Cougar Coal Co.,
25 FMSHRC at 521.
 In addition, several ALJs have made similar determinations where MSHA had not yet been notified
of an immediately reportable accident.  In Signal
Peak Energy, Judge
Moran stated that Respondent
would be excused from liability
for failure to preserve the accident scene only if it did not have an
obligation to report
the accident.  Signal
Peak Energy, LLC, 34 FMSHRC
1346, 1375 (June 2012).  In Chino Mines, Judge Hodgdon
found a violation of 50.12 where a reportable accident occurred, a circuit breaker
that exploded was replaced, and MSHA was not notified
of the accident until the day after.
 Chino Mines Company, 24
FMSHRC 189, 196-97 (Feb. 2002).

Even though the operators in the above cases had not reported the accident to MSHA at the time that the alterations were made, the Commission has found that an operator
still had notice of section 50.10's
requirements and impliedly, section 50.12's requirements.  In Cyprus Emerald Resources Corp.,
the Commission concluded that adequate
notice is provided
when a regulation is unambiguous. Cyprus Emerald Resources
Corp., 20 FMSHRC 790,797-98 (Aug. 1998). It stated that "[f]rom our conclusion
that the definition of accident
in section 50.2 is plain, it follows
that section 50.10 provided the operator with adequate notice of its requirements. Id If Respondent had adequate notice
of the requirements under section 50.10, it follows that Respondent also had adequate
notice of its obligation to preserve the accident scene under section
50.12.

Based on the above case law, the fact that handrails
were installed on the platform
from where Bowling fell, coal was cleaned
up off the ground where he landed, and a ratchet was replaced, the scene of the accident
was altered without
the permission of an MSHA District Manager. Whether the alterations hindered
the investigation was immaterial as the only acceptable reasons
to alter an accident
scene are "to rescue or recover an individual, prevent or eliminate an imminent
danger, or prevent destruction of mining equipment." 30 U.S.C. § 50.12.
There was no testimony presented
by either party that these
exceptions applied in this
particular instance. Additionally, it is not within
the Respondent's authority,
absent these narrowly delineated circumstances, to determine whether
alterations may hinder or impede
an investigation by MSHA.

Therefore, I find that Respondent violated
section 50.12 and knew of the standard's requirements.

Negligence

The alterations made to the scene of the accident
were intentional and the decision to alter the scene was made by management. Respondent has not presented
any mitigating evidence. As a result, I find that Belcher properly determined the level of negligence to be high.

Civil Penalties

The Commission has reiterated in Mize Granite Quarries, Inc.,
34 FMSHRC 1760,
1763- 64
(Aug. 2012):

Section 110(i) of the Mine Act grants the Commission
the authority to assess all civil penalties
provided under the Act. 30 U .S.C. §820(i). It further directs
that the
Commission, in determining penalty amounts, shall consider:

The 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 1n attempting to achieve
rapid compliance after notification of a violation.

30  U.S.C.
§ 820(i).

The Commission
and its ALJs are not bound
by the penalties proposed by the Secretary nor are they governed
by MSHA' s Part 100 regulations, although
substantial deviations from the
proposed penalties must be explained
using the section
110(i) criteria. [14]  See Sellersburg Stone Co.,
5 FMSHRC 287, 293 (Mar. 1983).
 In
addition to considering the 110(i) criteria, the judge
must provide a sufficient factual
basis upon which
the Commission can perform its review
function.  See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006).

Ability to Continue
in Business, Good Faith, and Size of the Operator

The parties
have stipulated that the proposed
penalties will not affect the Respondent's ability to continue
in business and that Respondent abated the violations in good faith.
Ex. J-1. The parties did not stipulate to the size of the operator, however,
on the forms reflecting calculations of the proposed penalties
(Secretary's Exhibit A), the mine tonnage
is 0 and the controller tonnage
is over 5 million. Based on Tables
I and II in section
100.3, I find the size of the mine to be small but the overall size of the operator to be
large. Therefore, I find that the
penalties assessed herein are appropriate to the size of the business.

History of Previous Violations and Negligence

The history of violations provided is over a 2 year period, not the required IS-month period, and reflects
that 47 violations became final.
Ex. S-13. I accept the figures reflected in the report as accurate. However, the overall violation history set forth in the exhibit is deficient in that it provides
no qualitative assessment, i.e., whether
the number of violations is high,
moderate or low.
 See Cantera Green, 22 FMSHRC at 623-24.
 In
addition, because the violations were specially assessed,
no points were assigned by the Secretary
for the number of
violations per inspection day in Secretary's Exhibit
A. Therefore, without
the number of inspection days, it is not possible to determine whether
the history of violations is an
aggravating, neutral, or mitigating factor.
The negligence and gravity of each violation is discussed at length
above.

I assess the following
penalties:

1. Citation
   No. 8247826 is VACATED.

2.    Citation No. 8247827
is VACATED.

3.    Order No. 8258182
is VACATED.

4.    Order No. 8258183 is affirmed. I assess a penalty of $21,900.00. I find the failure to report a fall under the circumstances here to be extremely serious
with no mitigating factors. I find that the penalty is appropriate.

5.    Citation No. 8258184 is affirmed. I assess a penalty of $7,700.00.  While the Respondent alleges the alteration of the scene was
for the protection of miners,
as stated herein,
there were ulterior motives involved. I find that the penalty
is appropriate.

ORDER

It is ORDERED that the operator pay a total penalty of $29,600.00 within 30 days of the
date of this order. [15]

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative Law Judge

Distribution (Certified Mail):

Willow Fort, Esq., U.S. Department of Labor, Office
of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

Melanie J. Kilpatrick, Esq.,
Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513

[14] Respondent has
raised an objection to the special assessments levied by the Secretary, stating
that there was no explanation for the extreme divergence between the standard
penalty calculated according to the section 100.3 formula and the assessed
penalties, and that because the penalties assessed are arbitrary, they should
not be considered a benchmark or guideline for de novo penalty assessments.  Resp.
Br. at 33. My assessment of penalties is based upon all of the statutory
criteria above as they relate to the facts of each violation as established by
the record evidence. The special assessments levied by the Secretary are
immaterial.

[15]
Payment
should be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390