Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

A contractor miner at Consol's Bailey Mine was crushed between a battery scoop and a rail car, could not move or feel one leg, and developed abdominal swelling that raised concern about internal bleeding. Consol called for emergency transportation but did not notify MSHA until about two hours after the accident. Judge John Kent Lewis held that section 50.10(b) required notice within 15 minutes because the totality of the circumstances showed an injury with a reasonable potential to cause death. He affirmed the Secretary's moderate-negligence finding, noting that Consol acted quickly to assist the miner but lacked considerable mitigating circumstances for the reporting delay. The judge affirmed the citation and assessed the statutory minimum penalty of $5,000, and the Commission later affirmed both.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(b)
• Outcome: The reporting citation and moderate-negligence finding were affirmed, with a $5,000 penalty.
• Subsequent review: The Commission affirmed the violation and penalty in penn-2014-816-commission.
• Key point: Operators must evaluate all information available immediately after an accident and resolve reasonable doubt in favor of notifying MSHA.

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 2014-816

A.C. No. 36-07230-346706

Mine: Bailey Mine

DECISION AND
ORDER

Appearances:               Jennifer Gold,
Esq., Office of the Solicitor, U.S. Department of Labor , Representing
the Petitioner

James P. McHugh,
Hardy Pence, PLLC ,
Representing the Respondent

Before:                        Judge
Lewis

I.          Statement
of the Case

This case is before me upon a petition for
assessment of a civil penalty under section 105(d) of the Federal Mine Safety
and Health Act of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(d). On May
29, 2014, the Secretary filed an Assessment of a Civil Penalty for Citation No.
7076747 for an alleged violation of 30 C.F.R. § 50.10(b) to Consol Pennsylvania
Coal Company, LLC (“Respondent”) at Bailey Mine. On July 2, 2014, Respondent
filed an answer contesting Citation No. 7076747 and the negligence findings. This
case was assigned to the undersigned on April 28, 2016. On December 13, 2016, a
hearing was scheduled to take place on March 8, 2017, in Pittsburgh, PA. The
parties presented testimony and documentary evidence, filed post-hearing briefs,
and reply briefs.

II.        Joint
Stipulations [1]

The parties have stipulated to the following facts:

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) and 803, at the mine at which the
Citation(s)/Order(s) at issue in this proceeding were issued.

2.
Operations of the Respondent at the mine at which the Citation(s)/Order(s) were
issued are subject to the jurisdiction of the Mine Act.

3.
Bailey Mine is operated by the Respondent.

4.
Payment of the total proposed penalty of $5,000.00 in this matter will not
affect the Respondent’s ability to continue in business.

5.
The individual whose name appears in Block 22 of the Citation(s)/Order(s) in
contest was acting in an official capacity and as an authorized representative
of the Secretary of Labor when the Citation(s)/Order(s) were issued.

6.
The Citation contained in Docket No. PENN 2014-816 was issued and served by a
duly authorized representative of the Secretary of Labor upon an agent of
Respondent at the date, time, and place stated in the Citations, as required by
the Act.

7.
Exhibit “A” attached to the Secretary’s Petition in Docket No. PENN 2014-816
contains true and authentic copies of Citation No. 7076747 with all
modifications or abatements, if any.

8.
The R-17 Certified Assessed Violation History Report is an authentic copy and
may be admitted as a certified business record of the Mine Safety and Health
Administration.

(JX-1).

III.       Summary
of Testimony

Thomas
Bochna

Thomas Bochna investigated the accident at issue on
August 12, 2013. [2]
(Tr. 38). [3]
Bochna had first learned of the Bailey Mine accident at issue here on August
12, 2013, shortly after he arrived for work at 5:30 a.m. (Tr. 38). He had
inspected Respondent’s mine “many times” in the past. (Tr. 43).

On August 12, 2013, Bochna had reduced to writing
the initial 103(j) order to a 103(k) order which was terminated that day. (Tr.
45-48; GX-2). Bochna had initially interviewed witnesses at Bailey Mine on the
day of the accident, later interviewing the victim, Robert Stern, at Health
South Rehab facility. (Tr. 49). As a result of his investigation, Bochna
eventually issued his 104(a) citation, Citation No. 7076747, on September 23,
2013. (GX-1).

According to the MSHA Escalation Report , GX-3,
Respondent’s safety supervisor at Bailey Mine, Michael Tennant, first notified
MSHA of the accident at 5:09 a.m. (and 55 seconds). (Tr. 51). Bochna’s
investigation had established that the accident had taken place at around 3:15
a.m. (Tr. 52). Bochna did not know why the escalation report had given 4:45
a.m. as the accident time. (Tr. 52).

Respondent had indicated according to the report
that the “types of injuries” sustained were “unknown.” (Tr. 53; GX-3).

In his preliminary report of the accident, GX-1,
Bochna described the accident as a GMS Repair Employee being injured when he
became caught between the bucket of a battery scoop and a supply car. (Tr. 56).
Referring to his Accident Investigation-Data Report, Bochna found the “root
cause” of the accident to be the employee positioning himself in a “pinch point
red zone area” between the scoop bucket and the rail car. (Tr. 57; GX-1).

After conducting both individual and ground interviews
at Bailey Mine, Bochna ended his questioning at 10:25 a.m. (Tr. 62-63).  He
learned that the accident had come about because Mr. Stern had entered the area
between the scoop and the end of the rail car to determine why the scoop was
stuck. (Tr. 66-67). Due to some slack in a safety chain and drifting forward of
a rail car, Stern became crushed between the scoop and the end of the rail car.
(Tr. 68-71). Both the scoop and rail car were large objects weighing 5-10 tons.
(Tr. 69).

Bochna reviewed his inspection notes at hearing. He
had interviewed Daniel Greathouse, who operated the scoop when the accident had
taken place and who had participated in a re-creation of the accident. (Tr. 77,
82). Greathouse reported that Stern stated that it felt like his “guts were
coming out of his penis.” (Tr. 83).

Bochna also interviewed two GMS “red hats,” Travis Barber
and Garret Scales, who were working with Stern at the time of the accident.
(Tr. 78-80). Although neither Barber nor Scales had actually witnessed the
accident take place, they heard and saw Stern immediately thereafter. (Tr. 79).
Both Barber and Scales recalled Stern stating that he was hurt “real bad,” was
in some pain, and felt like something was coming out of his penis. (Tr. 81).

Travis Stillwell was also interviewed. (Tr. 84). Stillwell
was at the scene at the time of the accident and heard Greathouse say, “scoop
stuck” and then Stern say, “help me.” (Tr. 85). When Stillwell approached
Stern—the victim was laying on the ground, complaining that his stomach hurt
and that he could not feel his legs. (Tr. 85).

Bochna also reviewed his interview of John McDonald,
section foreman at Bailey Mine. (Tr. 85). McDonald had been notified about the
accident at approximately 3:25 a.m. (Tr. 86). He issued instructions to Colby
Watson to bring a gurney and EMT kits to the accident site. (Tr. 85). McDonald
had called the bunker, stating that a Life Flight would be needed. (Tr. 86). Life
Flight was a helicopter brought in when there was a serious injury and speedy
transportation to a hospital was necessary. (Tr. 86). McDonald noticed that
Stern was experiencing stomach swelling and was in extreme pain. (Tr. 86).

Bochna had also interviewed Shannon Smith, an EMT,
who gave treatment to Stern at the scene. (Tr. 86). Smith found Watson,
Greathouse, and McDonald attempting to put Stern on a backboard. (Tr. 87). Stern’s
head was being held up because no neck brace was available. (Tr. 87). His
visible injuries included abrasions on the right side around the waist area, a little
(amount of) blood on the right hip area, and bruising around the hip area. (Tr.
87). Stern could not move his left leg and had no feeling in his right leg.
(Tr. 87). No oxygen was available at the scene and was only given by EMS when
Stern was transported to the surface on a mantrip. (Tr. 87, 88).

Smith related that Stern had never lost
consciousness. (Tr. 88). Smith spoke with Stern on the mantrip all the way to
the surface. (Tr. 88). Haulage had been cleared all the way out. [4] (Tr. 88).

Bochna interviewed Stern at a rehab facility on
September 4, 2013. (Tr. 89). Stern had a plate inserted into his hip area. (Tr.
89). Bochna’s review of hospital records disclosed that after Stern’s internal
bleeding had stopped, surgery on the pelvis was performed on August 12, 2013.
(Tr. 90). Stern was reported to have a crushing injury to his spine/pelvis.
(Tr. 90).

Bochna had also spoken with Roy Cumberledge,
coordinator for GMS at Enlow and Bailey Mines, who had been at the hospital
when Stern had been admitted. (Tr. 91). Cumberledge had been unable to view the
injuries well, except for an abrasion on Stern’s right hip. (Tr. 91). The
doctor at the hospital predicted Stern’s bleeding would stop in one to one and
a half hours, which it did, without the necessity for surgery to prevent
further bleeding. (Tr. 91). Surgery on the pelvis was performed at around 1:00
p.m. (Tr. 91).

Documentary
Evidence Regarding the Nature of the Accident

At hearing, the Secretary offered into evidence
GX-12A, MSHA’s Accident Prevention Program Safety Idea, Proper Blocking ,
in order to establish that failing to block against hazardous motion was one of
the most frequently cited regulations when investigating serious accidents and
fatalities. [5]
(Tr. 95).

The Secretary also introduced into evidence, MSHA’s
Accident Prevention Program Safety Idea: Blocking against Motion . (GX-12B).
This document disclosed that “in the past years, seven miners died…[because]
safety props [were] not available and block was either not used or
ineffective.” (Tr. 102). This exhibit also reported the case of a miner who was
crushed between the bucket lift arms and front-end loading frame because the
loader was not effectively secured from movement. (Tr. 102-03) [6] .

Another MSHA Accident Prevention Program Safety Idea,
Stay Seen - Stay Alive was offered by the Secretary. (GX-12C). In this
report, MSHA announced that during the period spanning January 2000-July 2011,
there had been 76 fatalities due to miners being struck by surface and
underground equipment. [7]
(Tr. 103).

The Secretary also offered an MSHA Accident
Prevention Program/Miner’s Tip —work experience around machinery. (GX-12E). This
Bulletin, dated April 30, 2002, included the specific advice: “Do not get
between two pieces of mobile equipment. They could crush you.” (Tr. 105).

Also admitted into evidence, over objection of
Respondent [8] ,
were a series of fatalgrams, all of which involved miners being killed when
pinned or crushed between heavy machinery and a coal rib. (GX-13B, 13C).

Based inter alia upon Bochna’s interviews
with Bailey Mine, Consol Corporate, and GMS personnel, his personal investigation
of the accident, Stern’s complaints voiced at the scene, the observations of
Stern by on-the-scene witnesses, the calls to clear haulage and for a Life Flight,
and the treatment rendered, Bochna concluded that Respondent had violated
§50.10(b). (Tr. 111-12).

Cross
Examination of Bochna

On cross examination, Bochna was asked to explain
why it had taken 43 days for him to conclude that Respondent had failed to call
MSHA within 15 minutes of learning of the accident. (Tr. 114). Bochna explained
that it had taken this period to fully complete his investigation. (Tr. 115). He
had conducted ten or more accident investigations in the past. (Tr. 115).

As far as Stern’s injuries were concerned, Bochna
did not know what was actually told to John McDonald by the “red hats.” (Tr.
118). Neither did Bochna know what Greathouse, Stillwell, or Tennant had
actually relayed to McDonald. (Tr. 119).

Bochna had not spoken to EMS personnel regarding
Stern’s injuries. (Tr. 120). He had been informed that a doctor at the hospital
had opined that Stern’s bleeding would “stop on its own.” (Tr. 121). Bochna did
not know the circumstances under which Respondent might call for Life Flight.
(Tr. 122).

During his interview of John McDonald, Bochna was
informed that subsequent to the accident Stern had not lost consciousness, was
speaking, and was answering questions. (Tr. 123-24). Bochna had been further
informed that no CPR was given. (Tr. 124). Bochna had never asked McDonald if
McDonald thought Stern’s injuries had a reasonable potential to cause death.
(Tr. 125). Nor did he pose this question to anyone else. (Tr. 125). Bochna had
not called any medical professional at the hospital to determine whether there
was any surgery for internal bleeding. (Tr. 128).

Bochna acknowledged that he had commended Respondent
for its speedy treatment of Stern. (Tr. 131).

Given that the accident involved two very heavy
pieces of equipment crushing an individual, the victim’s stomach distention and
inability to move his legs, Bochna reiterated that Respondent should have been
“pretty quickly” aware that Stern’s injuries required immediate MSHA
notification. (Tr. 133).

Shannon
Smith

At hearing, Shannon Smith, the fire boss mine
examiner at Bailey Mine, testified that he had worked in such position since
2009. [9]
(Tr. 163-64). Smith had first learned via a radio call at Bailey Mine that
“there was a man crushed.” (Tr. 165). Together with a fellow fire boss, Donald
Wolf, Smith arrived at the accident site within 12 minutes of the call. (Tr.
166). When he first arrived upon the scene, Smith found John McDonald, Danny
Greathouse, and some contractors. (Tr. 167). Stern was lying on his side. (Tr.
169). He had a bend to his knee—“like his leg’s broken.” (Tr. 170). Stern
complained of being in pain. (Tr. 171). He was unable to move one of his legs.
(Tr. 171). Don Wolf applied a “C spine,” which holds the neck straight. (Tr.
171). Stern’s stomach “felt like it was getting hard,” and it was distended.
(Tr. 172). Smith acknowledged that this could be a sign of internal bleeding.
(Tr. 172). There was a “little dab” of blood on his leg. (Tr. 173).

Stern further complained that he felt like something
was coming out of his penis. (Tr. 173). Upon examining Stern, Smith, however,
did not see “anything coming out.” (Tr. 173).

Stern further asked Smith that if something happened
to him, to tell Stern’s wife and family that he loved them. (Tr. 174).

Smith characterized Stern’s injury as “pretty bad”
and traumatic, Stern’s accident being the worst he had ever been involved with.
(Tr. 174).

Smith himself had never called for Life Flight, nor
has Life Flight been called since the accident at issue. (Tr. 175). However,
Smith had heard that it had been called in the past. (Tr. 175).

Smith had not administered oxygen—because none was
available at the scene, and Smith did not want to stop as he wanted to get
Stern outside as quickly as possible. (Tr. 176-77). Smith did not take Stern’s
blood pressure because he did not have a cuff with him. (Tr. 177).

Smith called the bunker in order to have Life Flight
contacted. (Tr. 179). In calling for Life Flight, Smith “wanted to err on the
side of caution” because Stern might have possible internal bleeding that could
lead to death. (Tr. 180).

Cross
Examination of Smith

On Cross Examination, Smith said he had utilized an
assessment phase called DCABPTLS [10]
in examining Stern. (Tr. 183). Once he had gone through the assessment, Smith
knew he “had to get him (Stern) out of the mine…fairly quickly.” (Tr. 183).

Stern did not lose consciousness at the scene and
was able to understand questions. (Tr. 184). He did not have any problems with
his pulse. (Tr. 184). There was a “bruising-type thing” across Stern’s belly [11] . (Tr.185).
There was no evidence of head injury. (Tr. 186). Stern was able to answer
“sample questions.” (Tr. 187). Smith noted no change in Stern’s condition when
he was handed-off to the paramedics. (Tr. 188).

John
Henry McDonald, Jr.

John McDonald, Jr., a section supervisor at Bailey
Mine since 2007 appeared and testified at hearing. [12] (Tr. 192-93).
McDonald first learned of Stern’s accident from Stern’s fellow GMS worker,
Garret Scales. (Tr. 194). It was approximately quarter after 3:00 a.m. when
McDonald was first contacted. (Tr. 195). He was approximately 900 feet from
Stern’s accident site. (Tr. 195). Three to four minutes elapsed before McDonald
arrived at the scene. (Tr. 195). McDonald found Stern lying on his side, saying
he had gotten “pinched” and was in a lot of pain. (Tr. 196). McDonald called
the bunker to contact 9-1-1 to get an ambulance. (Tr. 196). McDonald called
MSHA with the same bell phone [13]
that he had used to call the bunker. (Tr. 196).

McDonald had called Shannon Smith on the radio to
come to the scene. (Tr. 198). All McDonald understood as to the nature of the
accident was that Stern “got pinched between the scoop and the [rail] car.”
(Tr. 200). Initially, McDonald thought Stern had sustained a femur injury; but after
talking to Stern, Smith thought it was higher up in the hip area. (Tr. 201).

McDonald had noticed “a lump” in Stern’s stomach and
felt “hardness” on his stomach. (Tr. 201). Colby Watson had accompanied
McDonald to the scene and had been instructed by McDonald to get a gurney and
EMT kits. (Tr. 202).

Daniel Greathouse had informed McDonald that he had
backed the scoop up in order to let Stern free. (Tr. 202). Stern was unable to
move his legs and could only feel a pinch in one of his legs. (Tr. 203). When
Stern’s legs were moved, he screamed in extreme pain. (Tr. 203). McDonald had
requested haulage be cleared for Stern’s exit. [14]
(Tr. 204). It took approximately 40 minutes for Stern to be taken out. (Tr.
204). Once Stern was placed in the ambulance, McDonald did not know where Stern
was headed. (Tr. 204).

McDonald testified he was familiar with a document
entitled Immediately Reportable Accident as contained in GX-8. (Tr. 206-07).
This document was posted on the bulletin board in the shift foreman’s office
and on bulletin boards around Bailey Mine. (Tr. 207). This document had at one
time also been in McDonald’s locker. (Tr. 206).

McDonald testified that during his years at Consol,
he had never been given specific instruction as to how to interpret the
reportable event: “an injury to an individual at a mine which has a reasonable
potential to cause death.” (Tr. 208; GX-8). McDonald was acquainted with GX-7—a
Bailey Mine document entitled Reportable Incident Guidelines . (Tr. 209).
McDonald also acknowledged that GX-10 was a Consol Energy safety presentation
regarding “Pinch Points/Red Zones” that described the Bailey Mine Incident at
issue as being one which “had a high potential for a fatal accident.” (Tr.
213).

GX-9 contained another Consol Energy safety talk
entitled “proper blocking,” dated June 20, 2011. (Tr. 2014-15). McDonald agreed
with the first sentence of the presentation, which read: “one of the most
frequently cited regulations when serious accidents and fatalities are
investigated is the failure to block equipment against motion.” (Tr. 215).

McDonald was an unlicensed EMT at the time of the
instant accident. (Tr. 217). McDonald had called the bunker to contact an
ambulance. (Tr. 219). It had taken Shannon Smith 8 to 10 minutes to arrive at the
accident site. (Tr. 218). Stern was on the ground, was in pain, and could not
move his leg. (Tr. 218). He could speak and answer questions intelligibly. (Tr.
219). He did not exhibit any breathing problems. (Tr. 219). He did not appear
to a have head injury or to be in shock. (Tr. 220). McDonald could not detect
any deterioration in Stern’s condition from when he first observed Stern until
Stern was handed off to the EMTs. (Tr. 220).

Based upon his observations of Stern, McDonald had
concluded that his injuries did not have a reasonable potential to cause death.
(Tr. 222). McDonald did not have specific responsible person training as to
immediate reportable accidents. (Tr. 224; See also GX-8). But he had
participated in a group presentation when he had received his foreman papers.
(Tr. 224). Red zone training was given because of all the tight areas and
mobile equipment at Bailey Mine, red zone violations being particularly
dangerous. (Tr. 224).

On redirect examination [15] McDonald
stated that Life Flight had been called for on the ride out “for precaution”
because “when we felt his stomach, we got nervous.” (Tr. 225). Testifying that
he and Shannon Smith tried to hide their conversation about Stern’s stomach
hardening from Stern, McDonald explained that stomach swelling could indicate
internal bleeding and internal bleeding had a reasonable potential to cause
death. (Tr. 225).

Michael
Tennant

Michael Tennant had been safety supervisor at Bailey
Mine since September 2008. [16]
(Tr. 231). Tennant had first learned of Stern’s accident when he had been
called by Eric Cecil from the bunker at approximately 3:30-3:45 a.m. (Tr. 233).
Tennant had been advised that Stern “was pinched between two cars and EMTs were
on their way.” (Tr. 233). Tennant was at his home at the time, and during his
drive to the mine, he received a second call in which he was informed that Life
Flight had been called. (Tr. 234). Stern’s injuries were described as involving
“a broken leg, dislocated hip or some lower-type pelvis-type incident…” (Tr.
234). Stern was reported to be conscious and alert. (Tr. 234). Tennant did not
make any calls from his car regarding the accident but did initially call from his
home, notifying his supervisor, Eric Shuble, who was the general
superintendent. (Tr. 235).

Tennant reported initially to Steve Apperson,
manager of safety. (Tr. 235-36). Apperson would report to Chuck Shaynak, who
was vice president of Consol’s Pennsylvania operations. (Tr. 236).

Tennant arrived at the mine at about 4:50 a.m.,
approximately one hour after the bunker person’s original call. (Tr. 237). Stern
was already gone. (Tr. 245). Tennant did not call Steve Apperson or anybody
from GMS. (Tr. 238). He eventually called MSHA at around 5:09 a.m. (Tr. 239). Tennant
had received a call from Randy Cumberledge, a GMS coordinator, to update
Tennant on Stern’s condition. (Tr. 219). Stern was reported to have a broken
pelvis and internal bleeding. (Tr. 239).

Tennant did not go to Bailey Mine every time that
there was an accident but had chosen to go to Bailey Mine because Stern had
been pinched between two large pieces of equipment. (Tr. 243). Tennant did not
know why the MSHA Escalation Report gave 4:45 a.m. as the time of the accident.
(Tr. 243; GX-3).

Tennant testified that, subsequent to mine accidents,
safety talks as contained in GX-10 were generally given as soon as possible.
(Tr. 246). Tennant agreed with the final sentence under Pinch Points/ Red Zones,
which read: “This had a high potential for a fatal accident.” (Tr. 247). Tennant
further agreed that, as outlined in Bailey Mines/ Reportable Incident
Guidelines bulletin, he was to be immediately notified following any agency
notification of an injury, which had the reasonable potential to cause death.
(Tr. 251; GX-7). Tennant also confirmed that a Consol Energy safety talk on
“proper blocking,” dated June 20, 2011, indicated that the failure to block
equipment against motion was one of the most frequently cited regulations when
serious accidents and fatalities are investigated. (Tr. 253; GX-9).

According to Consol documents, the Bailey Mine
incident [17]
at issue was reported to have fatal potential of “5” and the “high probability
to cause death.” (Tr. 262-67; See also GX-14).

Based upon the information given to him by Cecil
over the phone—that there was something wrong about Stern’s leg or pelvis, that
Stern might have a dislocated hip or broken leg, but that he was conscious and
alert—Tennant did not believe that any of Stern’s injuries posed a reasonable
potential to cause death. (Tr. 269-70). Tennant received basically the same
information from EMT Smith that he received from Shift Foreman Tomlin at the
mine site. (Tr. 270-71). He did not receive any information from the hospital
to alter his opinion. (Tr. 271). Given that Life Flight had been called and there
was a serious accident, Tennant decided to call MSHA so that inspectors coming
in would know something “about the event.” (Tr. 272).

In addition to Tennant, Danny Tomlin was the
“responsible person” to make the call to MSHA. (Tr. 272). In the past, Tennant
had made approximately 15-25 (or less) calls to MSHA to report injuries which
had the reasonable potential to cause death. (Tr. 274). Tennant “typically
use[d] common sense” in deciding to make such calls; he considered such factors
as amputations, CPR, attempts to stop bleeding, lack of alertness,
unconsciousness, blunt force trauma to the head or upper extremities to be
triggers to call MSHA. (Tr. 274). Tennant never took into account the nature of
the event in determining “reportability” under § 50.10(b), but only the
seriousness of the injuries. (Tr. 275).

During his initial phone conversation with Cecil,
Tennant had not asked questions about whether Stern had upper body or lower
body injuries, whether CPR had been performed, whether there were any
amputations, any kind of profuse bleeding or internal bleeding, whether there
were any blood pressure issues, or why EMT had thought it necessary to call
Life Flight. (Tr. 282-83). After learning of the accident, Tennant was
initially concerned about Stern receiving proper care—not calling MSHA. (Tr.
284-85).

Susan
Bealko

Susan Bealko, corporate safety director for GMS,
testified at hearing. [18]
(Tr. 288). Bealko had first learned of Stern’s accident on August 12, 2013, at
approximately 3:45-4:00 a.m. from Mike Fleece, GMS’s PA ops coordinator. (Tr.
289-90). After getting dressed and dropping off grain for her horse, she left
for the hospital at approximately 4:15-4:20 a.m. (Tr. 291). She met Fleece at
the hospital; Fleece advised her that Randy Cumberledge, the site coordinator,
was speaking with Stern. (Tr. 290-91). At some point, a doctor came out,
announcing that Stern was stable and was being prepped for surgery. (Tr. 293). There
had been a “small bleed” that had since
ceased. (Tr. 293). Surgery was performed at around 1:00 p.m. (Tr. 293).

Bealko had heard nothing that led her to believe
that Stern’s injuries had a reasonable potential to cause death. (Tr. 293). She
did not contact MSHA regarding such because as GMS’s safety director she felt
Stern’s injuries were not life threatening. (Tr. 294).

Bealko had not gone to Bailey Mine before going to
the hospital and had therefore not observed Stern at the accident site. (Tr.
300).

Richard
Marlowe

At hearing, Richard Marlowe testified on behalf of
Respondent. [19]
(Tr. 301-02). Marlowe testified that in August 2013, Marlowe was “probably” the
director of safety awareness. (Tr. 302). Referring to RX-5, “RPI’s August
2013,” Marlowe stated that reports of personal injury were put together and distributed
to various business units in mines. (Tr. 303). He had circulated the August
2013 RPI in question. (Tr. 304). Based upon his review of the (Stern) incident,
Marlowe had determined the situation had a potential for fatality. (Tr. 305). The
form was not meant to indicate the likely outcome of injuries. (Tr. 310). In a
situation involving an individual getting pinched between two pieces of
equipment, Marlowe testified that, if such a condition was allowed to continue,
a fatality could reasonably be expected to take place. (Tr. 310-11). There
could be a situation with a high fatal potential but with no actual injuries
involved. (Tr. 311).

Marlow had not been present at the Bailey Mine when
Stern was injured, had not directly observed any of Stern’s injuries, and had
not specifically participated in the accident investigation. (Tr. 315).

IV.       Contentions
of the Parties

Respondent argues that the Secretary failed to meet its
burden of proof in proving a §50.10(b) violation for Citation No. 7076747. Resp’t
Post-Hearing Br. at 11-26. Respondent contends that Stern’s injuries were
not life-threatening and did not have the reasonable potential to cause death. Resp’t
Post-Hearing Br. at 12-21. Respondent also contends that the surrounding
circumstances of the accident are not relevant and that the accident did not
involve an injury with the reasonable potential to cause death. Resp’t
Post-Hearing Br. at 21-22, 26-27. Respondent further contends that the statutory
provision in 30 U.S.C. § 813(j) is in conflict with the regulation in 30 C.F.R.
§ 50.10(b), and in such instances the statute prevails. Furthermore, it argues
that the reporting requirement is subjective and should be subjectively applied.
Resp’t Post-Hearing Br. at 22-26. Additionally, Respondent argues the
negligence should be assessed at low, there was no fair notice of the
violation’s interpretation, and the penalty should be decreased from $5,000.00.
Resp’t Post-Hearing Br. at 31-33. Respondent also essentially argued
that neither a totality of the circumstances test nor a reasonable person test
are not appropriate for §50.10(b). Resp’t Reply Br. at 12-17.

The
Secretary argues that Respondent violated 30 C.F.R. § 50.10(b), that the
Respondent was moderately negligent, and that the penalty should be assessed at
$5,000.00. Sec’y Post-Hearing Br. at 12-30. The Secretary contends that
the Respondent knew or should have known within 15 minutes of its occurrence
that Stern’s accident involved injuries with a reasonable potential to cause
death. Sec’y Post-Hearing Br. at 14-28. The Secretary further contends
that the Respondent had adequate notice of the standard. Sec’y Reply Br.
at 9-12.

V.        Issue
Presented

In determining whether 50.50(b) has been violated,
should a “totality of the circumstances” test be utilized, including such
factors as a “nature of the accident” and signs and symptoms of injury at the
time of accident and immediately thereafter?

VI.       Law
and Regulations

30 C.F.R. § 50.10(b) Immediate notification in
pertinent part provides as follows:

The
operator shall immediately contact MSHA at once and without delay and within 15
minutes…once the operator knows or should know that an accident has occurred
involving: …(b) an injury of an individual at the mine which has a reasonable
potential to cause death.

VII.     Findings
of Fact and Conclusions of Law

In arriving at its within decision that Stern’s
injuries evinced a reasonable potential to cause death and that Respondent had
correspondingly failed in its notification duty under § 50.10(b), this Court
recognizes that operators are not expected to be experts in diagnosis or
prognosis at the scene of a mine accident. This Court also recognizes that
there is not a statutory or a regulatory definition of “reasonable potential to
cause death” and further notes the Commission’s declining to define such in Signal
Peak Energy, LLC , 37 FMSHRC 470 (Mar. 2015). [20]

Moreover, there is undoubtedly a gray area in
determining whether an injury is potentially fatal and actually
fatal. [21]

However, operators are not left at sea—without
direction—as to when to notify MSHA of an accident. There are numerous
navigational instruments to guide them to a proper determination.

A.        Any Reasonable Doubt Must Be Resolved
in Favor of Notification

As the Commission has made abundantly clear in Signal
Peak Energy, LLC, any “reasonable doubt” in determining whether MSHA should
immediately be notified must be resolved in favor of notification. 37
FMSHRC 470, 477 (Mar. 2015).

This should be the North Star directing all mine operators
in their search for a proper determination under §50.10(b).

The Respondent had advanced various arguments (of
varying merit) explaining its failure to immediately notify MSHA. However, the
circumstances surrounding Stern’s injuries should have raised multiple red
flags of doubt to any prudent operator—doubt that should have been resolved in
favor of notification.

B.        Operators Must Be Guided by the
Protective Purpose of the Act and the Standard

As held by the Commission in Signal , in
determining whether or not to call MSHA, an operator should be guided by the
protective purpose of the Act and § 50.10(b) mandatory standard. Signal at

477. The preamble to the final rule addressing 30 C.F.R. § 50.10 in 2006 stated:

In
emergencies, where delay in responding can mean the difference between life and
death, immediate notification leads the mobilization of an effective mine
emergency response. Immediate notification activates MSHA emergency response
efforts, which can be critical in saving lives, stabilizing the situation, and
preserving the accident scene. Immediate notification also promotes Agency
assistance of the mine’s first responder efforts. In other situations, it
allows for a range of appropriate Agency responses depending on the
circumstances. It alerts MSHA to trends or warning signals that can trigger a
special inspection, an investigation, or targeted enforcement. This
communication also encourages operators and miners to work with MSHA to develop
procedures that prevent incidents from resulting in more hazardous situations,
ultimately leading to disasters.

71
Fed. Reg. at 71, 431.

Thus, in addition to Signal’s directive that
all reasonable doubts be resolved in favor of notification, operators have two
other bright beacons directing their § 50.10(b) considerations: the protective
purpose of the Act and mandatory safety standard.

It is clear that the circumstances surrounding the
accident and injury must be considered. For example, under the definition of
accident provided in §50.2, several examples are given as to what constitutes
an accident, including an injury at a mine with the reasonable potential to
cause death, entrapment for more than 30 minutes, unplanned inundation, and an
unplanned fire. See 30 C.F.R § 50.2. Most of the enumerated examples
describe circumstances, rather than injuries. Thus it is clear that §50.10(b)
does not exclude and in fact encourages an analysis of the circumstances
surrounding the event causing a mine injury. See id.

Similar to most controversies arising out of the
Mine Act, determinations regarding § 50.10(b) notifications are necessarily
fact specific and must be evaluated on a case-by-case basis with due
consideration for the totality of the circumstances. See e.g. , Black
Beauty Coal Co ., 36 FMSHRC 1821 (March 10, 2014) (ALJ) (holding safeguard
notice requirements for a water accumulation violation are analyzed on a
case-by-case basis).

This Court rejects the Respondent’s arguments that a
totality of the circumstances approach, including consideration of the nature
of the accident, should not be employed in determining whether a miner’s injury
is reportable under § 50.10(b).

In Signal Peak Energy, the Commission
unequivocally held that all “readily available information”—“including the
nature of the accident” should be considered in determining whether an injury
was reportable. Signal Peak Energy, LLC , 37 FMSHRC at 476. The
Commission noted that such evidence was “highly relevant.” Id. Because
the extent of an injury is not always immediately apparent, the Commission
reasoned that the specific circumstances, including how the injury occurred,
should be considered by the mine operator. [22]
Id. As discussed intra , the Secretary has presented persuasive
documentary and testimonial evidence that the type of accident in which Stern
was involved—being crushed [23]
in a red zone between two large pieces of machinery—often leads to fatal
injury.

In arguing that the nature of Stern’s accident
should not be taken into account, Respondent ignores Signal’s holding
that “the nature of the accident” is highly relevant information in determining
whether an injury should be reported. This Court cannot accept Respondent’s
suggested analytical approach. Any prudent operator, familiar with the
industry, knew or should have known that the type of accident that Stern
suffered often leads to death. [24]
To ignore this elephant in the room is a sophistic misadventure that no mine
operator, including Respondent, should engage in when determining to alert
MSHA.

C.        Reasonable Potential to Cause Death
Interpretation

Respondent argued that §50.10(b) is not clear, and
does not include an analysis of the nature of the accident. [25] When the
plain language of a standard is clear and unambiguous, the Commission has held
that the standard provides operators with fair notice.  Dynamic Energy,
Inc.,  32 FMSHRC 1168, 1172 (Sept. 2010);  Bluestone Coal Corp.,  19
FMSHRC 1025, 1031 (June 1997). The Commission has held that the “reasonable
potential to cause death” uses a reasonable person standard. Signal Peak, LLC ,
37 FMSHRC at 477. The Commission has specifically stated that the reasonable
potential to cause death is case specific and requires consideration of the
accident causing the injury. Wolf Run Mining Co ., 35 FMSHRC 3512, 3517
(December 2013). It is this Court’s view that a reasonable potential to cause
death is a clear standard.

If the meaning of a standard is ambiguous, the
Secretary’s interpretation of its own regulation may be given deference.
See Auer v. Robbins,  519 U.S. 452 (1997);  Udall  v.  Tallman,  380
U.S. 1, 16-17 (1965);  Dynamic Energy, Inc.,  32 FMSHRC 1168,
1171-72 (2010). Deference is not appropriate when an agency’s interpretation is
unreasonable or inconsistent with the regulation. Christopher v. SmithKline
Beecham Corp. , 567 U.S. 142, 155 (2012) (citing  Auer,  519
U.S at 462). An agency’s interpretation may also not be given deference when it
conflicts with a prior interpretation. See, Christopher v. SmithKline
Beecham Corp. , 567 U.S. at 155 (2012)(citing  Thomas Jefferson Univ.
v, Shalala,  512 U.S. 504, 515 (1994)). While
this Court does find §50.10 to be clear and unambiguous, the Secretary’s
interpretation that a totality of the circumstances test should be used is also
reasonable and should be given deference. The Mine Act was written in order to
protect miners’ health and safety. When analyzing MSHA’s reporting requirement
under §50.10(b), it is reasonable that the Secretary should consider the
circumstances that resulted in an injury. Thus, a totality of the circumstances
test is appropriate under the regulations.

D.        Preamble to Final Rule for Section
50.10

Contrary to Respondent’s suggestions otherwise, the
preamble to section 50.10 does not contain an exhaustive all-inclusive list of
injuries requiring immediate MSHA notification. Rather it is a practical guide
to operators citing “some” types of injuries that, based upon MSHA’s past
experience and based upon common medical knowledge, have the reasonable
potential to cause death. [26]

E.         Signs and Symptoms of Injury

When considering the totality of the circumstances,
the Respondent argues correctly that signs and symptoms of injury are important
factors in considering a § 50.10(b) MSHA notification.

However, in considering Stern’s mental and physical
signs and symptoms, this Court has given much more probative weight to the
evidence of injury available at the scene of the accident and at the time of
the accident and immediately thereafter . Medical information gathered from
treatment sources at the hospital and thereafter—for example, reports that
Stern’s condition was improving and that, with or without surgical
intervention, Stern’s intestinal bleeding had ceased—has been accorded much
less substantive weight in assessing the propriety of operator’s § 50.10(b)
determination than the signs and symptoms witnessed at the accident scene and
time.

In proceeding thusly, this Court has been guided by
the Commission’s holdings in Signal and Cougar Coal that the need
for a prompt determination is inherent in § 50.10 and that permitting
operators to wait for a medical or clinical opinion would frustrate the
immediate reporting of accidents. [27]

1.         Consciousness
and Alertness

This Court further agrees with Respondent that
consciousness and alertness are factors which may indicate a non-fatal injury. However,
standing alone, they are not necessarily contra indicative of a potentially
fatal injury. Bartlett’s Familiar Quotations is full of memorable dying
declarations which—though quite lucid and profound—were uttered by individuals
close to death. [28]

Likewise, the Commission and its judges have
recognized that the maintenance of consciousness at the scene does not by
itself preclude a finding of a § 50.10(b) violation. Webster County Coal,
LLC , 2017 WL 2306333 (May 23, 2017)(ALJ).

In Red River Coal , a miner had been struck in
the head by a pressurized end cap. Red River Coal , 39 FMSHRC 368, 389
(Feb. 21, 2017)(ALJ). The maintenance shop foreman, a certified EMT, found the
miner conscious at the scene with stable vital signs and minimal blood loss —as
in the case sub judice . Id . at 389-90. After considering
however, the totality of the evidence, including the nature of the accident
which involved blunt force trauma to the head and the fact that Life Flight had
been called, Judge Feldman concluded § 50.10(b) had been violated. Id. at
391-92.

In Cougar Coal Co ., 25 FMSHRC 513 (Sept.
2003) the Commission on its own motion reviewed an ALJ’s dismissal of a
citation under 30 C.F.R. § 50.10. In Cougar Coal the victim had received
an electric shock of exposure to 7,200 volts of electricity and had fallen a
distance of 18 feet. Cougar , 25 FMSHRC at 514. Rejecting the ALJ’s
reliance upon the operator’s assertion that the victim was conscious and alert
when management personnel arrived at the scene, the Commission specifically
found that the judge “incorrectly discounted testimony related to ‘the nature
of the accident’ as irrelevant to the question of whether the injuries had a
reasonable potential to cause death.” Id. at 520

2.         Complaints
of Pain

At hearing, there was consistent testimony that
Stern had voiced complaints of being in severe pain to Bailey Mine and GMS
personnel. A prudent miner might reasonably consider such a symptom as being
indicative of potentially fatal injury.

At hearing, it was reported that Stern had also
described a sensation that his “guts were coming out of his penis.” (Tr. 83). This
symptom was so severe in nature that Shannon Smith was compelled to check
Stern’s genitals. (Tr. 173). Such a bizarre and extreme sensation might also be
reasonably interpreted as indicative of a potentially fatal injury.

3.         Bent
Leg and Lower Extremity Paralysis

At hearing it was also reported that Stern also had
an odd bend to one of his legs and had complained of being unable to move a
leg. (Tr. 270-71). Signs of fracture and complaints of lower extremity
paralysis would be additional symptoms alerting a prudent miner of his duty to
immediately notify MSHA.

4.         Abrasions
and Blood Loss

Visible signs of abrasions and some blood loss were
also witnessed at the accident scene. (Tr. 87). Considered alone, these signs
may not have been indicative of injuries with the reasonable potential to cause
death. However, when viewed in combination with Stern’s other signs and
symptoms, a reasonably prudent miner would be motivated to immediately notify
MSHA.

At hearing, Respondent argued that bruising could be
associated with relatively minor injuries. (Tr. 180-81). The ALJ took
Respondent’s point that there are different degrees of bruising and associated
internal bleeding dependent upon the type of trauma and body part affected. However,
in the instant matter, there was obvious major trauma to Stern’s torso.

5.         Stomach
Swelling and Internal Bleeding

One of the most ominous signs of potentially fatal
injury testified to at hearing was that of Stern’s reported stomach
swelling/distention. ( See Tr. 83).

At hearing, Smith acknowledged that Life Flight had
been called due to fear that Stern might be experiencing internal bleeding
which could lead to death. (Tr. 179-80).

The fact that Stern’s internal bleeding had
eventually receded, does not diminish the point that such a sign at the mine
accident site immediately after the accident would have alerted a prudent
operator to notify MSHA under § 50.10(b).

6.         Stern’s
Farewell to Family

In addition to Stern’s physical symptoms and signs
which supported a determination that his injuries might be fatal in nature,
Stern exhibited mental symptoms in support of such.

At the accident scene Stern requested that, if
anything happened to him, Shannon Smith tell Stern’s wife and family that he
loved them. (Tr. 174). Individuals do not normally make such a request unless
they themselves fear that their injuries are life threatening.

A prudent operator would reasonably find such a
fear-filled family farewell to have been further evidence of a potentially
fatal injury.

7.         Call
for Life Flight

Regardless of Respondent’s various explanations
minimizing its call for Life Flight—a reasonable inference to be drawn was that
Respondent was justifiably concerned that Stern’s injuries might be
life-threatening. Smith’s essential admission that Stern’s injuries may be
life-threatening pulled the lynch pin out from under Respondent’s arguments
otherwise. (Tr. 180).

F.         Given the Totality of the Circumstances
a § 50.10(b) Notification was Mandated

Respondent has raised various points of arguable
merit justifying its failure to notify MSHA under § 50.10(b). Further, this
Court grants that Respondent may have been acting in good faith in its
violative actions. However, considering the totality of the circumstances in
light of the protective purpose of the Act and mandatory safety standard, a
prudent operator, knowledgeable of the industry would have or should have known
that Stern’s injuries had the reasonable potential to cause death, and
therefore, had a duty to immediately notify MSHA.

G.        Negligence

Respondent has argued that the Secretary’s
assessment of moderate negligence should be modified to low negligence. ( Resp’t
Post-Hearing Br. at 31-33). An operator is moderately negligent when “the
operator knew or should have known of the violative condition or practice but
there are mitigating circumstances.” 30 C.F.R. § 100.3 Table X. Low negligence
conversely requires “considerable mitigating circumstances.” Id.

As stated above, this Court finds that Respondent
knew or should have known that an accident occurred with the reasonable
potential to cause death. The nature of the accident, Stern being crushed
between two several ton machines, Stern’s belief that he might die, Stern’s
description of his injury including the feeling of something coming out of his
genitals, Stern’s stomach swelling indicating internal bleeding, and his
inability to move his legs properly—all indicated that the Respondent knew or
should have known that an accident occurred that had the reasonable potential
to cause death.

Respondent did not call MSHA within the 15-minute
time limit as §50.10(b) required when an accident with the reasonable potential
to cause death has occurred. Although Respondent called Life Flight and seemed
to react quickly and efficiently to help Stern after his injury, and although Respondent
eventually called MSHA approximately two hours after Stern’s injury occurred,
nonetheless this Court does not find considerable mitigating circumstances, and
affirms the Secretary’s moderate negligence assessment.

H.        Fair Notice

Respondent also argues that it did not have fair
notice of the meaning and interpretation of the phrase “Operator realizes
that…an injury…which has a reasonable potential to cause death.” Resp’t
Post-Hearing Br. at 27-31.

To satisfy constitutional due process requirements,
regulations must be sufficiently specific to give adequate notice of the
conduct they prohibit or require.  See Grayned v. Rockford , 408 U.S.
104,108 (1972). The Commission has stated that notice for an ambiguous
regulation asks “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.” DQ Fire &
Explosion Consultants , 36 FMSHRC 3083, 3087 (Dec. 2014) (internal
quotations omitted)( quoting Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990)). Thus, a reasonably prudent miner has adequate notice of a regulation
when he knows—after considering the purpose of the provision—that said
provision applies to a particular situation. See e.g. Grayned , 408 U.S.
at 112; Freeman United Coal Mining Co. v. FMSHRC , 108 F.3d 358, 362
(D.C. Cir. 1997).

In this case, Stern was crushed between a scoop and
railcar, both of which weighed between 5 and 10 tons. Stern complained of
extreme pain, could not move his legs properly, believed something was coming
from his genitals. Futher, he had stomach swelling, which indicated internal
bleeding. Respondent’s witness Smith, a fire boss examiner, believed that
Stern’s internal bleeding had the potential to cause death. See (Tr.180).
All of these circumstances demand that a reasonably prudent miner would believe
that Stern’s condition had the potential to cause death.

VIII.    Penalty

The Act requires that in assessing civil monetary
penalties, the Commission ALJ shall consider the six statutory penalty
criteria:

…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 in
attempting to achieve rapid compliance after notification of a violation.

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

30 C.F.R. §100.4(c) states that the penalty for
failure to provide timely notification to MSHA “will not be less than $5,000
and not more than $65,000 for the following accidents:...2) An injury…of an
individual at the mine, which has a reasonable potential to cause death.” Section
110(a)(2) of the Act similarly states that an operator “who fails to provide
timely notification to the Secretary as required under 103(j) of [the Act]
(relating to the 15 minute requirement) shall be assessed a civil penalty by
the Secretary of not less than $5,000 and not more than $60,000.” [29] 30 U.S.C.
§820(a)(2).

The Secretary assessed a penalty of $5,000.00, and
for the following reasons, this Court affirms the assessment of $5,000.00.

The Secretary has brought forward no evidence of
previous §50.10(b) violations. Additionally, Bailey Mine is a large mine with
an annual production capacity of 10.2 million tons in 2015 and 12.3 million
tons in 2014. (GX-15). Respondent was moderately negligent as set forth above. The
parties have stipulated that an assessment of $5,000.00 would not affect the operator’s
ability to continue in business. J.S.-4.

The gravity of the violation is “No Likelihood” of a
“No Lost Workdays” injury. Based on the foregoing, this Court finds that a
penalty of $5,000.00 is appropriate.

ORDER

The Respondent, Consol Pennsylvania Coal Company,
LLC, is ORDERED to pay the Secretary of Labor the sum of $5,000.00
within 30 days of this order. [30]

/s/
John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Jennifer
Gold, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis
Center, 170 S. Independence Mall West, Philadelphia, PA 19106

James
P. McHugh, Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329

[1] The Joint
Stipulations were submitted at hearing as Joint Exhibit 1 (JX-1). Each
stipulation will hereinafter be cited to as J.S. followed by the stipulation number.
The Secretary’s exhibits will be cited to as GX followed by its number and
Respondent’s exhibits will be cited to as RX followed by its number.

[2] He had
worked as a supervisory coal health and safety inspector for three years, first
beginning work as a regular coal health inspector in 2008. (Tr. 36). His coal
mine inspector duties involved conducting E01 and spot inspections, issuing
citations, and performing accident investigations. (Tr. 37). Prior to joining
MSHA, Bochna had worked for 30 years as a coal miner. (Tr. 37). His positions
included continuous miner operator and fire boss. (Tr. 37). Possessing a 2-year
degree from Penn State in mine engineering, Bochna had a total of 39 years of
experience in coal mining. (Tr. 36-37).

[3] References
to the hearing transcript will be cited as Tr. followed by the page number.

[4] There was a
call on the mine radio to signal that all equipment traffic should be stopped
so as to make way for Stern’s mantrip transport to the surface. (Tr. 88).

[5] Over
objections of Respondent, this Court allowed the admission of said document and
similar documents as being relevant evidence regarding the “nature of the
accident.” As discussed intra this Court holds that the proper test for
determining a violation of §50.10(b) is whether, considering the totality of
the circumstances, including the nature of the accident , an operator
knew or should have known that the injury/injuries sustained by the miner had a
reasonable potential to cause death. This Court specifically rejects any argument
advanced by Respondent that this test is limited to assessing signs and
symptoms associated with the miner’s injury. ( See also Parties’
arguments regarding such at Tr. 94-100).

[6] For the
same reasons above referenced, this Court also allowed admission of such, over
objection, into the record.

[7] Given that
Stern also had been struck/crushed between large pieces of equipment, this
Court once again, over objections of Respondent, allowed this exhibit’s
admission. This Court, as noted intra , found such evidence relevant in
considering the “nature of the accident” vis-à-vis the reasonable potential for
fatal injury and Respondent’s at least constructive knowledge of its duty to
immediately notify MSHA under such circumstances.

[8] As in the
foregoing instances, this Court allowed the admission of the fatalgrams to
establish that Respondent had been put on notice of the potentially fatal
nature of crush injuries.

[9] Smith was
also a licensed and certified EMT. (Tr. 164). He had previously worked in
mining as a bolter operator and bolter helper. (Tr. 165).

[10] This
acronym stands for: deformities, contusions, abrasions, punctures,
bruising/burns, tenderness, lacerations, and swelling.

[11] In
pointing to where the bruising was located on Stern’s body, Smith placed his
hand a little above his belt. ( See also Tr. 185-86).

[12] McDonald
had also worked at Bailey Mine as a foreman trainee. (Tr. 193). He had received
an associate degree in mining technology at Penn State University. (Tr. 193). McDonald
had at least 15 years of total mining experience. (Tr. 194).

[13] Bell
phones can be used to call outside lines. (Tr. 196).

[14] Haulage
was cleared anytime someone became sick or needed to leave the mine. (Tr. 222).

[15] As
discussed infra McDonald’s statements on redirect examination essentially
contradict Respondent’s argument that Stern’s injuries did not appear to have a
reasonable potential for death.

[16] From 2001
to 2008, he had been a safety inspector at the mine. (Tr. 231). Tennant
possessed a bachelor’s degree in safety engineering and had an assistant mine
foreman certification. (Tr. 232).

[17] As argued
at hearing and indeed throughout these proceedings, both parties contested
whether this and similar phrases referred to the type of injury or the type of
accident. ( See also Tr. 266).

[18] She had
been corporate safety director for 5 years and had been in the mining industry
for 27 years. (Tr. 288). Bealko had a mining engineer degree from Penn State.
(Tr. 288). She had also worked for NIOSH, the mining research branch of MSHA.
(Tr. 288).

[19] Marlowe
had an undergraduate degree in mining engineering technology and a master’s in
safety management. (Tr. 302).

[20] See
also Commissioner Cohen’s dissent calling for a definition in Signal
Peak Energy, LLC , 37 FMSHRC at 477 n. 8.

[21] T.S. Eliot’s
lines in The Hollow Men are called to mind “between the potency and the
existence…falls the shadow.”

[22] In Red
River Coal Co ., 39 FMSHRC 368, 391 (Feb. 2017)(ALJ) Judge Feldman
considered the nature of the miner’s accident in concluding that the operator
had violated § 50.10(b).

[23] Although
the word “pinched” is used in the technical sense to describe the type of Red
Zone incident in which Stern was involved, the word “crushed” more accurately
describes the injury process actually suffered by Stern.

[24] Additionally,
it should be noted that many injuries, such as inhalation, internal bleeding,
and the like are not visible. Therefore, the circumstances surrounding the
injury are highly relevant in determining the extent of the possible injury.

[25] Respondent
also argues that 30 U.S.C. § 813(j) conflicts with 30 C.F.R. § 50.10(b) in that
§813(j) states that an operator must call MSHA when he realizes an
injury has occurred with the reasonable potential to cause death. Whereas
§50.10(b) states that an operator must call MSHA when an operator knows or
should have known of an accident involving an injury with the reasonable
potential to cause death. ( Resp’t Post-Hearing Br. at 22-27). This Court
finds there to be no conflict in this case as the facts and testimony provide the
same result. Due to the circumstances surrounding the accident and injury, it
is clear that MSHA should have been called within 15 minutes of the accident.

[26] The ALJ
notes a back and forth between counsel questioning Shannon Smith as to whether
Stern’s blunt force trauma was in the upper or lower body. Any doubt regarding such
at the accident scene should again have been resolved in favor of MSHA
notification.

[27] If an
operator is permitted to wait for and consider information beyond the narrow
confines of time and space addressed herein, all types of speculation and delay
may enter his determination. For instance, in this case, Stern had to undergo
hospitalization and surgery. Given that medical error is now the 3 rd
leading cause of death in the U.S. and given that thousands of our citizens die
annually due to hospital borne infection—should an operator be required to deem
any injury requiring later surgery and/or hospitalization to have a reasonable
potential to cause death?

[28] Witness
Moliere’s reported last words: “Draw the curtain, the farce is over.”

[29] In 2012,
the $60,000 maximum was raised to $65,000 to account for inflation. Signal ,
at 484, n. 21.

[30] 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