Secretary of Labor v. Signal Peak Energy, LLC

Plain-English summary

A longwall roof cave produced an air blast that damaged 78 stoppings and propelled a miner 50 to 80 feet, causing serious and visible injuries. Signal Peak did not notify MSHA, resumed mining through the accident site, and MSHA learned of the incident from a reporter five days later. The Commission affirmed an S&S, reckless-disregard violation of the 15-minute injury-reporting rule because the accident mechanism and the miner's condition showed a reasonable potential for death, and it affirmed the accident-site preservation violation. It rejected the separate theory that the cave itself was reportable as a roof fall in active workings because the fall occurred in the longwall gob. The Commission reduced the reporting penalty from $74,250 to the $60,000 statutory maximum and left the $9,500 site-preservation penalty in place.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.10(b), 50.10(d), and 50.12
• Outcome: The injury-reporting and site-preservation violations were affirmed, the roof-fall reporting theory was rejected, and total penalties were modified to $69,500.
• Key point: Mine operators must resolve reasonable doubt in favor of immediate notification and cannot wait for a definitive medical diagnosis when the accident and visible injuries indicate a reasonable potential for death.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,                           
:

MINE SAFETY AND HEALTH                 
:        

ADMINISTRATION (MSHA)                    
:                                

:         Docket No. WEST 2010-1130                     

v.                                              
:                               

:                                

SIGNAL PEAK ENERGY, LLC                   
:                                

BEFORE: Nakamura, Acting
Chairman; Cohen and Althen, Commissioners

DECISION

BY: Nakamura, Acting
Chairman; Cohen, Commissioner

This case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), and
involves two citations issued to Signal Peak Energy

by the Secretary of Labor in
the wake of a roof fall (or “cave”) and a resulting injury.

Citation
No. 8463717 alleges that Signal Peak failed to immediately notify the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) of an
accident,     in violation of section 50.10 of the Secretary’s reporting
requirements. The Secretary alleges that the injury was reportable under
section 50.10(b), or alternatively, that the roof fall was reportable under
section 50.10(d).[1]
Citation No. 8463718 alleges that Signal Peak failed to preserve the accident
site in violation of section 50.12. [2]
The Secretary designated Citation   No. 8463717 as significant and substantial
(“S&S”),[3]
and attributed both cited conditions to reckless disregard.[4]

The
Administrative Law Judge upheld both citations in their entirety and assessed
penalties that were substantially higher than those proposed by the Secretary. 34
FMSHRC 1346 (June 2012) (ALJ). The Commission granted Signal Peak’s petition
for review with regard to all elements. For the reasons below, we affirm the
Judge’s findings with regard to Citation   No. 8463717 with the exceptions of
the finding of a violation of 30 C.F.R. § 50.10(d) and the assessed penalty. We
affirm the Judge’s findings with regard to Citation No. 8463718 in their entirety.

I.

Factual and Procedural Background

A.   
Factual Background

On
December 23, 2009, a roof fall or “cave” occurred in the longwall gob at Signal
Peak’s Bull Mountain Mine No. 1 in Roundup, Montana. This was the initial roof
cave on the first longwall panel at the mine. Caves in the gob are an expected
part of longwall mining, and the initial roof cave on a panel is often larger
than subsequent falls. Tr. 93-94. The cave caused a blast of air which damaged
approximately 78 stoppings, and propelled miner Mike Stewart  50-80 feet. 34
FMSHRC at 1352; Tr. 62, 123. When Stewart was found by other miners
shortly after the blast, he was in severe pain, had difficulty breathing and
moving, had a significant lump on his back, and stated that he was not okay. He
was loaded onto a backboard and slowly transported to the surface. 34 FMSHRC
at 1356, 1358; Tr. 158, 162, 165, 429-32.

Shift
foreman and EMT Ben Harcourt[5] performed an evaluation as Stewart was transported to
the surface. He determined that Stewart had a cut on his head, noticeably
broken ribs, pain in his chest and back, trouble breathing, and signs of shock.
He stated that he found no obvious signs of concussion, internal bleeding, or a
punctured lung, and found that Stewart had good respiration and circulation. Tr.
367-76. However, Harcourt was not able to take Stewart’s pulse, blood pressure
or oxygen level, and admitted that without these three critical components he
did not have an accurate assessment of Stewart’s vital signs. Tr. 391-92. He
nevertheless concluded that the injuries were not life-threatening. Tr. 380-82.
Although Harcourt’s authority included the ability to call MSHA in the event of
a reportable injury, he decided not to do so.  Tr. 389, 393.

Once
Stewart was transferred to an ambulance, EMT Kerry Halverson performed another
evaluation and observed largely the same injuries; however, he concluded that
there was a reasonable potential for death, because Stewart’s back pain and the
distance he was thrown raised the possibility of spinal damage and internal
injury. 34 FMSHRC at 1357; Tr. 247-50.

Signal
Peak’s Safety Director, Thomas Rice, was called at home and informed of the
accident while Stewart was being transported out of the mine. Rice began
driving to the mine, was called again and informed that Stewart was almost to
the surface, and pulled over to wait for the ambulance, which he then followed
to Roundup Memorial Hospital. Once at the hospital, Rice spoke with Harcourt,
the ambulance personnel, and the attending physician. Rice testified that they
all stated the injuries were not life-threatening, so he decided the injury was
not reportable at that time. 34 FMSHRC at 1362-64; Tr. 452-58. Stewart was then
transferred by life-flight to another hospital, in Billings, Montana, where it
was ultimately determined that he had a burst thoracic vertebra, and other
injuries including fractures of the left scapula, ribs, and sternum. 34 FMSHRC
at 1349.

MSHA
learned of the incident from a newspaper reporter who called five days later,
on December 28, 2009, to inquire about an accident which had occurred at Signal
Peak’s mine. Id. MSHA Temporary Field Office Supervisor David Hamilton
spoke with Rice on the phone that afternoon. The Judge credited Hamilton’s
testimony that Rice was not forthcoming with information regarding the roof
fall or Stewart’s injuries. Id. at 1354; Tr. 212-13.

The
next morning, MSHA Inspector Wayne Johnson visited the hospitals to view
Stewart’s medical records and speak with medical personnel. The Judge credited
Johnson’s recollection of his conversation with Stewart’s attending physician,
in which the physician told Johnson that he considered Stewart’s injuries to be
life-threatening due to the risk of internal injury caused by the miner “being
blasted 50 to 80 feet down an entry.” 34 FMSHRC at 1349-50; Tr. 49-50.

Johnson
traveled to the mine that afternoon. After speaking with Harcourt and other
mine personnel regarding Stewart’s initial condition and the extent of the
blast, Johnson concluded that Signal Peak failed to timely report an
immediately reportable accident. He then issued Citation No. 8463717. Specifically,
Johnson concluded that Stewart’s injuries were reportable because they were
obviously life-threatening, and that the roof fall was reportable because it
impaired ventilation throughout the mine. 34 FMSHRC at 1351-53, 1377; Tr.
66-67, 77-78, 88; Gov. Ex. 1. Johnson also discovered that Signal Peak had
mined past the accident site before MSHA had an opportunity to investigate, and
issued Citation No. 8463718, alleging that Signal Peak had failed to preserve
the accident site. 34 FMSHRC at 1351-52; Tr. 90-91; Gov. Ex. 2.[6]

Ultimately,
MSHA Roof Specialist Pete Del Duca determined that the mine had a massive 200
foot thick sandstone roof, which, because it was not well-jointed, had trouble
breaking up and caving in. By the time the initial cave occurred, mining had
progressed 220 feet along a 1250 foot face, 10 to 12 feet high. 34 FMSHRC at
1378; Tr. 282-283, 296. When the initial cave finally occurred, it caused “a
very big blast because all that air [had] to be displaced.” Tr. 279. Prior to
the MSHA investigation, Signal Peak had done nothing to prevent a similar blast
from the initial cave in the next longwall panel to be mined. 34 FMSHRC at
1378-79;   Tr. 300-04. Because of MSHA’s intervention, the mine’s roof control
plan was modified to encourage earlier and smaller falls on future longwall
panels. 34 FMSHRC at 1378; Tr. 298-99, 301, 309-13, 525.

B.    
 The Judge’s Decision

With
respect to Citation No. 8463717, the Judge found that Signal Peak failed to
notify MSHA within 15 minutes once it knew of “injuries . . . which have a
reasonable potential to cause death” in violation of section 50.10(b). He found
that any reasonable person should have known almost immediately that such a
reasonable potential for death existed upon finding Stewart, based on the
distance he was thrown, his difficulty moving, and his obvious back injury. 34
FMSHRC at 1368-69.

Alternatively,
the Judge also found that Signal Peak failed to timely notify MSHA once it knew
of “an unplanned roof [ ] fall in active workings that impairs ventilation,” in
violation  of section 50.2(h)(8), as incorporated through section 50.10(d). He
found that the roof fall clearly impaired ventilation by damaging 78 stoppings,
was unplanned because it exceeded expectations, and was in active workings
despite occurring in the gob because it affected ventilation in active
workings. Id. at 1376-77, 1380-82.

The
Judge affirmed the S&S designation for Citation No. 8463717. He found that
the failure to report delayed MSHA involvement, thereby exposing miners to
uncorrected conditions; that such exposure was likely to occur, noting that the
necessary changes to the roof control plan would not have happened without MSHA
intervention; and that a similar fall would likely result in similarly serious
injuries as those sustained by Stewart. Id. at 1371-74.

In
finding the violation attributable to reckless disregard, the Judge noted
aggravating factors: Rice’s unwillingness to provide details to Hamilton over
the phone, and Signal Peak’s general failure to take corrective action after
the roof fall. The Judge rejected Signal Peak’s
contention that its determination not to report Stewart’s injury was
reasonable. Id. at 1374-75.

Having
found that the roof fall and/or injury constituted a reportable accident, and
finding it undisputed that Signal Peak had mined past the site where the event
occurred, the Judge found that Signal Peak failed to preserve an accident site
in violation of section 50.12. Accordingly, he affirmed Citation No. 8463718. Id.
at 1375. The Judge also upheld the reckless disregard designation, noting
that Signal Peak took no steps to notify MSHA before resuming mining in the
area. Id. at 1376.

Based
primarily on his determination that both violations constituted egregious
failures and that the operator placed miners in danger by impairing MSHA’s
ability to investigate, the Judge increased the penalty for Citation No.
8463717 from $49,500 to $74,250, and increased the penalty for Citation No.
8463718 from $1,900 to $9,500. Id. at 1346 n.1, 1382-83.

II.

Disposition

A.   
Citation No. 8463717

1.     
Violation

a.     
 Section 50.10(b)

Section
50.10(b) requires an operator to “immediately contact MSHA at once without
delay and within 15 minutes . . . once the operator knows or should know that
an accident has occurred involving . . . an injury . . . which has a reasonable
potential to cause death.” 30 C.F.R. § 50.10(b). We affirm the Judge’s finding
that any reasonable person should have known immediately upon finding Stewart
that his injuries had a reasonable potential to cause death.[7] 
34 FMSHRC at 1368. The failure to notify MSHA of the injuries during the
following five days clearly violated section 50.10(b).

As a
preliminary matter, we note that the Judge defined a “reasonable potential” as
a “not far-fetched” possibility, id., while Signal Peak contends it is
synonymous with “life-threatening.” SP Br. at 11-12. As discussed below, we
conclude that Stewart’s injuries clearly fall within the realm of a “reasonable
potential to cause death,” without the need to further define the term
reasonable potential to cause death.[8]

Substantial
evidence amply supports the Judge’s finding that Stewart’s condition evinced a
reasonable potential to cause death.[9]
 Stewart had been thrown a great distance,[10]
and had a significant back protrusion. 34 FMSHRC at 1368-69. In addition, in
finding that these signs indicated a reasonable potential for death, the Judge relied
on Stewart’s own testimony that he told nearby miners he was not okay, was in
great pain, and had trouble moving. Id. at 1357-58.[11]
He also credited EMT Halverson’s testimony that the blast and impact could
easily have caused internal injury and raised concerns that Stewart had
suffered spinal damage. Id. at 1357. The Judge also based his findings
on miner Brandon Mobley’s testimony that, in view of Stewart’s
pain, back injury, difficulty moving and trouble breathing, Mobley believed
Stewart was “really hurt.” Id. at 1356; Tr. 156-63.

Notably,
the preamble to the final rule for section 50.10 includes major upper body
blunt force trauma in a list of types of injuries which pose a reasonable
potential for death. 71 Fed. Reg. 71,430, 71,434 (Dec. 8, 2006). In addition, Stewart’s
obvious back injury, pain, difficulty moving, and difficulty breathing
increased the possibility that his injuries could be fatal. Stewart’s initial
condition presented a sufficient possibility of internal injury and spinal
damage that a reasonable person should have recognized that an injury with a reasonable potential to cause death
had occurred.

Signal Peak argues that the Judge erred in
giving more weight to external indicators of injury than to Harcourt’s
evaluation of the actual injuries, which Signal Peak claims established that
Stewart’s life was not in danger. However, the evaluation did not establish
that Stewart’s injuries posed no reasonable potential for death. While Harcourt
did find that Stewart had some stable vital signs and no obvious signs of
concussion or internal injury, Tr. 370-74, the evaluation was neither
conclusive nor exhaustive. Harcourt testified that he did not take all of
Stewart’s vital signs and therefore could not get an accurate assessment, and
that he “absolutely” did not know what was wrong with Stewart. Tr. 391-92, 396.
Clearly, Stewart was severely injured and the fortunate fact that he did not
die from the injuries does not detract from a finding that the readily
observable nature of his injuries presented a reasonable potential to cause
death.

Section 50.10 requires operators to notify
MSHA “immediately . . . at once without delay and within 15 minutes.” 30 C.F.R.
§ 50.10. Prompt reporting is clearly essential to the standard, and requires a
prompt determination as to whether an accident has occurred. See
Consolidation Coal Co., 11 FMSHRC 1935, 1938 (Oct. 1989) (finding that
section 50.10 “accords operators a reasonable opportunity for investigation,”
but that the investigation “must be carried out . . . in good faith without
delay and in light of the regulation’s command of prompt, vigorous action”); see
also 71 Fed. Reg. 12,252, 12,260 (Mar. 9, 2006) (noting that “[t]aking too
much time to determine whether . . . an accident occurred” is a common reason
for violations of section 50.10).

Given the need for a prompt determination
inherent in section 50.10, the Commission has found that readily available
information such as the nature of the accident is highly relevant in
determining whether an injury is reportable, while permitting operators to wait
for a medical or clinical opinion would “frustrate the immediate
reporting of near fatal accidents.” Cougar Coal Co., 25 FMSHRC 513,
520-21 (Sept. 2003) (holding that an electric shock, 18-foot fall, and head
injury had a “per se” reasonable potential for death); see also Mainline Rock
& Ballast, Inc.,  693 F.3d 1181, 1188-89 (10th Cir. 2012) (holding that
an operator should have been alerted to the potential for death by the fact
that the miner was pulled through a roller). Here, the Judge properly
considered the nature of the accident, i.e., being propelled a great distance,
as well as readily observable indicators of trauma such as Stewart’s severely
injured back, difficulty moving, and great pain.

Although the testimony and the parties’
arguments primarily focused on Safety Manager Rice’s actions, Harcourt
testified that he had the authority to notify MSHA in the event of an accident
resulting in a reasonable potential to cause death, Tr. 389, and he failed to
do so. His failure to call, or to have a call made, was sufficient to constitute
a violation. In this respect, an operator may not designate one specific
person, such as a safety manager, to place the immediate call to MSHA. Once a
person with sufficient authority to call learns of an event injuring a miner,
the clock begins to run on the period for evaluation of whether the injury
presents a reasonable potential to cause death and a determination of whether a
call is required.

We emphasize that an operator, in
determining whether it is required to notify MSHA under 30 C.F.R. § 50.10, must
resolve any reasonable doubt in favor of notification. As stated in the
preamble to the final rule addressing 30 C.F.R. § 50.10 in 2006:

In
emergencies, where delay in responding can mean the difference between life and
death, immediate notification leads to 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. Although
notification of MSHA may result in delays in production, Congress declared in
section 2(a) of the Mine Act that “the first priority and concern of all in the
coal or other mining industry must be the health and safety of its most
precious resource – the miner.” 30 U.S.C. § 801(a).  

In
addition, as the Commission stated in Cougar Coal, “[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.” 25 FMSHRC at 521. Yet, before
speaking with Harcourt and deciding not to report the injury,  Rice spent 30
minutes in his car waiting for the ambulance. During that time, he called the
mine to find out whether the ambulance had left, but did not gather any
substantive information from on-site personnel regarding the roof fall or
Stewart’s injuries. Tr. 453, 501. Rice’s testimony indicates that he waited for
a medical opinion because he was hoping for a level of certainty with respect
to Stewart’s prognosis. Tr. 472-74, 479. By waiting for a medical opinion at
the hospital rather than spending that time gathering readily available
information, information which in this case would have been sufficient to
trigger the notification requirement, Rice failed to conduct a sufficiently
prompt investigation. See, e.g., Consolidation Coal, 11 FMSHRC at
1936-38 (finding that a supervisor’s 45-minute investigation was not
sufficiently prompt, because he could have ascertained the necessary facts to
determine that an accident occurred during the initial call informing him of
the incident).

Given
the mechanism of Stewart’s injuries – being propelled 50-80 feet – and the
apparent severity of his injuries, whether the incident was immediately
reportable was not a close call. The Judge properly found on the basis of
substantial evidence that a reasonable person would have concluded that Stewart’s
injuries posed a reasonable potential for death based on the available
information.

b.     
Section 50.10(d)

Section 50.10(d) states generally that “any other
accident” is also immediately reportable.  30 C.F.R. § 50.10(d). For the
purposes of the Part 50 reporting requirements, the definition of “accident”
includes “an unplanned roof or rib fall in active workings that impairs
ventilation or impedes passage.” 30 C.F.R. § 50.2(h)(8) (emphasis added). It is
undisputed that the roof fall  at issue occurred in the longwall gob, which is
not an active working.[12]
34 FMSHRC at 1377 n.54. The Judge nevertheless accepted the Secretary’s
alternate theory of liability, finding that the roof fall was an accident as
defined in section 50.2(h)(8) because it affected ventilation in active
workings. Id. at 1381-82. We find that the regulatory language plainly
requires that the fall occur in active workings; therefore the roof fall here
was not an accident as defined in section 50.2(h)(8), and the failure to report
it was not a violation of section 50.10(d).

Where the
language of a regulatory provision is clear, the terms of that provision must
be enforced as they are written unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would lead to absurd
results. Island Creek Coal Co., 20 FMSHRC 14, 18-19 (Jan. 1998)
(citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)
(citations omitted)). The language of section 50.2(h)(8) is clear. The
regulation addresses roof falls in active workings; use of the word “in”
precludes a finding of an accident where the fall occurred outside of active
workings.

We note that
the Secretary’s litigating position in this matter, i.e., that roof falls in
the gob are immediately reportable if they impair ventilation in nearby active
workings, is not reflected in MSHA’s Program Policy Letter regarding the
“Reporting of Unplanned Roof Falls in Accordance with 30 C.F.R. § 50.10.” PPL
No. P12-V-03 (May 11, 2012). The Letter repeatedly uses the phrase “in active
workings” when enumerating the types of falls that must be reported, and states
that “[a]n active working does not include worked out areas or areas adjacent
to active workings.” Id. This exclusion of nearby areas suggests that
MSHA has traditionally interpreted the “in active workings” requirement for
unplanned roof falls more narrowly.[13]

Only a fall
which occurs in active workings may be an “accident” as defined in section
50.2(h)(8), and the fall here occurred outside of active workings in the
longwall gob.[14]
Signal Peak’s failure to report the roof fall did not constitute a failure to
report an accident in violation of section 50.10(d).[15]
However, because Stewart’s injuries constituted an “accident” pursuant to
section 50.10(b), the Judge’s finding of a violation is affirmed.

2. S&S           

As a threshold matter, only violations of mandatory
standards may be designated as S&S. See supra n.3. We find that the
Judge properly rejected Signal Peak’s claim that section 50.10  is not a
mandatory standard. 34 FMSHRC at 1348. Section 50.10 was initially issued as a
regulation. Cyprus Emerald Res. Corp., 195 F.3d 42, 44 (D.C. Cir. 1999).
However, in 2006,  a revised section 50.10 was published as an Emergency
Temporary Standard (“ETS”), then adopted as a permanent standard in a Final
Rule, in accordance with section 101 of the Act.[16]
 71 Fed. Reg. 12,252 (Mar. 9, 2006); 71 Fed. Reg. 71,430 (Dec. 8, 2006); see
Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 651 n.4 (Aug. 2008).

Signal Peak claims that the final rule merely revised
a regulation and showed no intent  to create a mandatory standard. These
arguments were addressed in Pine Ridge Coal Co., 33 FMSHRC 987 (Apr.
2011) (ALJ). The Judge in that case held that section 50.10 was properly
promulgated according to procedures outlined in section 101, and that
publishing the ETS and Notice of Formal Rule Making in the Federal Register
provided notice to operators of the Secretary’s intent to enforce section 50.10
as a mandatory standard. Id. 1003-10. We agree.

Having determined that Citation No. 8463717 may be
designated as S&S, we also conclude that the Judge properly affirmed the
S&S designation. A violation is S&S if, based on 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. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission
set forth the following four-part test to evaluate whether a violation is
properly designated as S&S:

In order to establish that a
violation of a mandatory safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) a discrete safety hazard -- that is, a measure
of danger to safety -- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Accord
Buck Creek Coal, Inc. v. MSHA, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec'y of Labor, 861
F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation
of the reasonable likelihood of injury should be made assuming continued normal
mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).

Signal Peak contends that the failure to timely
report the accident to MSHA did not contribute to a hazard, because MSHA’s
involvement was not necessary to remedy Stewart’s injuries. This interpretation
unduly narrows the purpose of section 50.10. While immediate rescue efforts are
a significant concern, section 50.10 is also intended to facilitate MSHA’s
ability to investigate and remedy the cause of the accident. The preamble to
the final rule states:

Not only can [timely
reporting] be vital to the saving of lives, but it can be instrumental to
having expert Agency personnel at the scene with authority to assure that the
accident site remains undisturbed and preserved for investigation into causes.

. . . roof falls . . . for
example, may necessitate critical, pro-active corrective actions and the need
for emergency response assistance.

71
Fed. Reg. at 71,435. This is properly reflected in the Judge’s determination
that Signal Peak’s failure to immediately report the accident created a hazard
by interfering with MSHA’s ability to investigate the cause of the accident,
thereby exposing miners to the danger resulting from roof conditions resulting
in an unexpectedly massive initial roof fall.[17]
34 FMSHRC at 1371-73.

Signal Peak also contends that the hazard was unlikely
to result in a serious injury in the context of continuing mining operations. Specifically,
Signal Peak states that a similarly dangerous roof fall was unlikely to recur,
noting that subsequent falls on the cited panel would have been smaller than
the initial fall which injured Stewart, and that MSHA permitted mining to
resume on the cited panel without requiring modifications to the roof control
plan. However, these factors at most establish that a similar fall was unlikely
on the cited longwall panel.[18]

We conclude that substantial evidence supports the
Judge’s finding that the hazard contributed to the reasonable likelihood of a
similarly dangerous cave when Signal Peak began its subsequent longwall
panel. 34 FMSHRC at 1373. Signal Peak’s chief engineer agreed with the
inspector that MSHA’s recommended changes to the roof control plan were
necessary and effective in preventing a similarly large blast on the next
longwall panel. Tr. 298-99, 523-25. These changes did not originate with Signal
Peak. Following the roof fall and ensuing blast

of
air on December 23, the operator simply fixed the ventilation damage and
resumed mining.   34 FMSHRC at 1371. In light of Signal Peak’s failure to
initiate contact with MSHA or preserve the accident site, the investigation and
modification of the roof control plan prior to beginning the next panel would
not have occurred without MSHA’s intervention.

Signal Peak does not dispute that any injury that
occurred from a blast resulting from a roof fall in the gob of the size that
occurred on December 23, 2009, would be of a reasonably serious nature. Accordingly,
we affirm the Judge’s finding that the violation was significant and
substantial.

3.      Reckless Disregard

The Judge based his determination of reckless
disregard on findings regarding several elements of Signal Peak’s conduct, all of
which are supported by the record. First, the Judge found evidence, based on
Rice’s evasiveness during his phone conversation with MSHA Supervisor Hamilton,
that Signal Peak knew it had a duty to report immediately but failed to   do so.
34 FMSHRC at 1374. He relied on Hamilton’s testimony, which he deemed “highly
credible,” that he had to pry every bit of information from Rice. Id. at
1354; Tr. 212-15. A Judge’s credibility determination is entitled to great
weight and may not be overturned lightly. Farmer v. Island Creek Coal Co.,
14 FMSHRC 1537, 1541 (Sept. 1992).

Second, the Judge found that Signal Peak failed to
take any steps to ensure that the roof fall was investigated, thereby placing
miners at future risk. 34 FMSHRC at 1374. It is uncontested that Signal Peak
did not initiate contact with MSHA after the accident, and Signal Peak
presented no evidence of an independent investigation. As discussed above,
without an investigation, necessary changes to the roof control plan would not
have been made, and miners would have been at risk on subsequent panels. We
conclude that substantial evidence supports the Judge’s finding of reckless
disregard.

The Judge considered and rejected Signal Peak’s
argument that its determination that the injuries were not immediately
reportable was reasonable. Instead, he found that Signal Peak missed several
discrete points at which it was clear from Stewart’s condition that Signal Peak
had an obligation to report immediately. In short, the duty to report was
obvious at multiple points in time. 34 FMSHRC at 1374. As discussed above, see
supra p. 6, substantial evidence supports the Judge’s determination that
the operator should have known that Stewart’s injuries were immediately
reportable, i.e., that it was unreasonable to conclude that the injuries were
not immediately reportable.

To summarize the Judge’s findings, all of which are supported
by substantial evidence: (a) a roof fall in the longwall gob occurred with such
force that it damaged 78 stoppings; (b) the blast picked up miner Mike Stewart
and threw him 50 to 80 feet; (c) Stewart suffered severe and obvious injuries,
had trouble moving and trouble breathing, and was in “excruciating” pain; (d)
it took one-and-a-half hours to bring Stewart out of the mine, during which
time it was impossible to fully take his vital signs; (e) Stewart was taken by
ambulance to a hospital and then by life flight to another hospital; (f) the
doctor at the first hospital believed “absolutely” that Stewart’s injuries were
life-threatening; (g) Signal Peak never contacted MSHA about the accident;

(h) rather, as the Judge
noted, 34 FMSHRC at 1359, Signal Peak’s concern was to resume production, which
it did three days later, after fixing the ventilation damage; (i) in resuming
mining, Signal Peak changed conditions at the accident scene, thereby impeding any
investigation by MSHA; (j) Signal Peak did nothing to investigate causes of the
enormous roof fall and resulting blast or to prevent recurrences in future
longwall panels; (k) MSHA found out about the accident from a newspaper
reporter, five days after it occurred; (l) when contacted by MSHA, Signal
Peak’s Safety Director was “anything but forthcoming” in answering questions;
and (m) Signal Peak filed the Form 7000-1 accident report one-and-a-half hours
after the Safety Director first spoke with MSHA. This pattern of behavior fully
supports the Judge’s conclusion that Signal Peak acted with reckless disregard
in failing to report Stewart’s injury to MSHA.    

B.    
Citation No. 8463718

Section
50.12 prohibits operators from altering an “accident site” before
investigations are completed. 30 C.F.R. § 50.12. Signal Peak does not
deny that it resumed mining at the site of Stewart’s injury before MSHA was
able to investigate, but contends that it did not fail to preserve an accident
site in violation of section 50.12 “[f]or the same reasons” that it did not
fail to report an accident in violation section 50.10, i.e., the injury was not
an accident. SP Br. at 27. Having already found that the Judge properly
identified Stewart’s injury as a reportable accident, see supra pp. 6-8,
we affirm the Judge’s finding that Signal Peak failed to preserve the accident
site in violation of section 50.12.[19]

C.
Penalties

In
assessing penalties, the Judge raised the amount for Citation No. 8463717 from
$49,500 as proposed by the Secretary to $74,250, and similarly raised the
penalty for Citation No. 8463718 from $1,900 to $9,500. 34 FMSHRC at 1346 n.1.

First,
Signal Peak contends, and the Secretary agrees, that the Judge erred by
imposing a penalty for Citation No. 8463717 in excess of the $70,000 maximum
for general non-flagrant violations of mandatory standards provided by section
110(a)(1) of the Act.[20]
We find that the Judge did improperly exceed the relevant statutory maximum. However,
as provided in section 110(a)(2) of the Act, the relevant maximum assessable penalty
for failing to immediately report an injury with a reasonable potential to
cause death is $60,000.

Section
110(a)(2) states that an operator “who fails to provide timely notification to
the Secretary as required under section 103(j) of this [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.”[21]
30 U.S.C. § 820(a)(2). Section 103(j) requires an operator to notify the
Secretary “within 15 minutes of the time at which the operator realizes that
the death of an individual at the mine, or an injury or entrapment of an
individual at the mine which has a reasonable potential to cause death, has
occurred.” 30 U.S.C. § 813(j). This is the same conduct required by sections

50.10(a), (b), and (c) of the
Secretary’s regulations. Accordingly, the assessment of a penalty  for a
non-flagrant violation of section 50.10(b) is governed by section 110(a)(2) of
the Act.[22]
The Judge erred by assessing a penalty in excess of $60,000 for Citation No.
8463717.

Additionally,
Signal Peak alleges that the Judge did not provide adequate justification to
account for the difference between the Secretary’s proposed penalties and the
penalties which the Judge independently assessed. Although Commission Judges
are accorded broad discretion in assessing civil penalties, such discretion is
not unbounded, and must reflect proper consideration of the penalty criteria
set forth in section 110(i) of the Act.[23]
See, e.g., Cantera Green, 22 FMSHRC 616, 620 (May 2000). In this
regard, the Commission has recognized that substantial deviations from the
Secretary’s proposed assessment must be adequately explained. Id. at 621.
However, the Judge’s findings need not be exhaustive; rather, they must be
sufficient to provide the Commission with a basis for determining whether the
Judge complied with the requirement to consider the section 110(i) criteria. Id.

The
Judge addressed all six section 110(i) criteria, particularly noting the impact
of his gravity and negligence findings on the assessed penalties. 34 FMSHRC at
1382-83. With regard to gravity, the Judge emphasized that both violations
placed miners in danger by interfering with MSHA’s ability to investigate. Id.
at 1383. With regard to negligence, the Judge considered both violations
“egregious failures,” noting that the “decision not to call MSHA, in violation
of  . . . [section] 50.10, was in no way a borderline call for which reasonable
minds could differ,” and noted that the Secretary described Signal Peak’s
failure to inform MSHA of the accident before resuming mining as a “blatant
disregard of [section 50.12].”[24]
Id. at 1383, 1375. Given the broad discretion accorded to Commission
Judges within the confines of the section 110(i) framework, the Judge’s findings
of particularly high gravity and negligence adequately explain the deviation between
the proposed and assessed penalties.[25]

We
therefore conclude that, except to the extent that the penalty for Citation No.
8463717 exceeds the statutory maximum, the Judge did not abuse his discretion
in raising the penalty amounts.

III.

Conclusion

For
the foregoing reasons, we vacate the $74,250 penalty imposed by the Judge for
Order No. 8463717 and impose a penalty of $60,000. The Judge’s findings with
respect to Citation Nos. 8463717 and 8463718 are otherwise affirmed.

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Acting Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Commissioner
Althen, concurring in part, dissenting in part:

I
concur with the Majority on all issues except the decision to assess a maximum
penalty for Citation No. 8463717 and to affirm the $9,500 assessment for
Citation No. 8463178.[26]
I would find the Judge abused his discretion by increasing by fifty percent (50%)
and five hundred percent (500%), respectively, penalties already specially
assessed by the Secretary without acknowledging that the increases are substantial
or explaining the basis for such substantial increases and by erroneously applying
certain statutory penalty criteria.

Background

A. Penalty Assessments

The Commission has held that if
a Judge’s penalty assessment differs substantially from the Secretary’s
proposal, the Judge must explain the variance in the assessed penalty from the
proposed penalty. Sellersburg Stone Co., 5 FMSHRC 287, 293 (1983), aff’d,
736 F.2d 1147 (D.C. Cir. 1986); Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000). The Judge need
not make exhaustive findings and may assign different weights to different
criteria, but must provide an adequate explanation of why the penalty
assessment diverges from the penalty proposal. Cantera Green, 22 FMSHRC
at 622.

In
the recent decision in Hidden Splendor Resources, Inc., 36 FMSHRC __ (Dec. 2014), the Commission vacated and remanded a
reduction of a penalty from a proposed $6,459 to an assessed $5,000 – a
relatively paltry reduction of $1,459 and 23% respectively. Our basis was that,
even though the Judge considered and made findings on all six penalty criteria,
he “did not offer any explanation for the divergence.” Id., slip op. at

6. Having so recently found an explanation necessary
   for very small dollar and percentage changes, it seems clear that an
   explanation is even more important for changes in the tens of thousands of
   dollars and of 50% and 500% – decreases and increases from penalty proposals
   should be subject to the same standard. Only if a proper explanation is
   provided for the assessment and if the penalty criteria are properly applied is
   the final assessment not arbitrary. Id.; Unique Electric,
   20 FMSHRC 1119, 1123 n.4 (Oct. 1998) (quoting Sellersburg Stone, 5
   FMSHRC at 293); Cantera Green,   22 FMSHRC at 621-23; Virginia Slate,
   23 FMSHRC 482, 493 (May 2001); Rushford Trucking, 22 FMSHRC 598, 602 (May
   2000); Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986).[27]

B. Special
Assessments

The regular penalty point
schedule set out in 30 C.F.R. § 100.3 provides a
basis for dispassionate and uniform penalty proposals. In this case, however,
MSHA exercised its unbridled discretion to propose a penalty as a “special
assessment” summarily provided for at  30 C.F.R. § 100.5. Special assessments
are made on the basis of narrative findings rather than the uniform tables for
regular assessments. 30 C.F.R. § 100.5(b). Although the regulations do not
explain how specially assessed penalties are calculated, the Secretary has
posted information styled as “guidelines” on the MSHA website.[28]
Under the guidelines, except perhaps in very rare instances, specially assessed
penalty proposals are based upon finding a heightened degree of negligence
and/or gravity – that is, negligence or gravity apparently beyond the
contemplation of the regular point system. [29]

The
subjective nature of special assessments does not render MSHA’s role in the
assessment process irrelevant to a Judge’s assessment. However, it is important
that the Judge recognize the specially assessed nature of the proposed penalty
in explaining why his/her

findings warrant a
substantial increase or decrease from the penalty proposal. Otherwise,     the
Commission cannot know whether the Judge took into account, or even realized,
that MSHA made a special penalty proposal on the basis of heightened negligence
and/or gravity without the uniformity and predictability provided by the
regular point system.

C. The Judge’s
penalty decision

Regarding
Citation No. 8463717, the Secretary specially assessed the penalty at $49,500.

As in Hidden Splendor,
the Judge essentially agreed with the findings of MSHA with respect to the six
penalty criteria, except for a lesser degree of injury to the one affected
miner and incorrect application of the size of business criterion. He then
assessed a penalty of $74,250.  34 FMSHRC at 1384.

Regarding
Citation No. 8463718, MSHA proposed a specially assessed penalty of $1,900. The
Judge agreed with MSHA’s finding except he found the hazard to have occurred,
thereby warranting a five-fold increase from the penalty proposed by MSHA from
$1,900 to $9,500. Id.[30]

Errors Warranting Remand

The
Judge’s decision is a well-written expository opinion. However, the Judge made
a number of errors and/or oversights affecting his penalty assessment that
jeopardize the credibility of the penalty assessment process and fail to explain
sufficiently the very substantial modifications to the specially assessed
penalties proposed by the Secretary.

First,
with respect to Citation No. 8463717, the Judge assessed a penalty of $74,250, 
 an amount that is exactly 150% of the proposed penalty of $49,500 but that
clearly exceeded  the statutory maximum penalty. It is taken as a given that
every Judge knows the maximum penalties under the Mine Act. It is also a given
that a Judge would not intentionally violate the Mine Act by assessing a
penalty not permitted by law. We may only speculate on the reason for this
error – simple oversight, error by an assistant, commitment to a 150% penalty,
etc. The over-assessment standing alone might not warrant reassessment of the
penalty except to comply with the Mine Act’s maximum. However, here, it is a
template for a host of other errors casting doubt on whether the penalty
adjustment was a well-reasoned, properly-supported change from

the proposed penalty or an
arbitrary decision to punish the operator to the limit of the law and beyond.

Second,
MSHA’s penalty petition, which the Judge accepted, states mine and mine
controller production of 275,220 tons (Exhibit A). Nonetheless, the Judge’s
assessment refers only to speculative future production. In assessing the
penalty, the Judge does not refer to the actual production but instead opines: “[b]y
any measure Signal Peak is a large mine, presently employing about 240 people
and with a goal of shipping a million tons of coal per year.” Id.   at 1382 (emphasis added). While
the Judge does not state explicitly that he considered this goal in increasing
the penalty, such consideration is the only reasonable reason for the
discussion of the operator’s future production plans in the penalty assessment
portion of his opinion, especially as he does not there identify the actual,
relevant production. Thus, with
respect to the penalty criterion of size of the business of the operator, the
Judge identifies not the actual size of the mine and mine controller – the
penalty criterion – but instead long term plans for future years. The
Mine Act does not permit assessments based upon a Judge’s speculation about an
operator or controlling entity’s future size – an entirely speculative future
in the mining industries.

Third, in assessing the penalty, the Judge states: “[t]he Secretary seeks a minimum penalty of
$51,400.00 for the two violations.” Id. (emphasis in original). Thus, he
asserts MSHA’s proposed penalty was a “minimum” – even emphasizing the term
“minimum.” This  

is the only place in the
opinion where the Judge identifies MSHA’s penalty proposal. Even

then he aggregates the
penalties for two violations and describes the total proposed penalty as

a minimum. Indeed, he
repeatedly expressed a finding that MSHA’s proposed penalty was a minimum. Id.
at 1384 n.60.

The
Secretary did not propose a modified assessment during the hearing. The
proposed specially assessed penalty in this case was not a product of the point
system but instead resulted from an individualized review by MSHA’s special
assessment office – a higher than regular penalty assessment. It was a
deliberately arrived at penalty proposal. It was neither minimum nor maximum. An
assertion that the Secretary’s proposed penalty is a “minimum” does not
“explain” a substantial increase in the proposed penalty. Of course, it is most
unlikely the Secretary would ever state that his proposed penalty was a
“maximum” but certainly the Commission would not accept a substantial downward
adjustment based upon a claim that the Secretary’s proposal was a “maximum.”[31]

Fourth,
the Judge’s penalty discussion does not even acknowledge that increases of 50%
and 500% respectively constituted substantial variances from the proposed
penalty requiring explanation. The Judge makes no effort to explain the reasons
for his changes. He identifies the Commission’s authority to assess penalties
but fails to discuss the obligation to explain (meaning give good, substantial
reasons) for substantially changing a penalty proposal by the Secretary.

The
Judge does find negligence and gravity were “egregious.” However, just as he
does not discuss the Secretary’s assessment or reason for his changes, he does
not take into account that MSHA had already assessed maximum penalty points for
negligence and gravity and then gone further and substantially increased the
regular assessment proposal on the basis of a special assessment turning on
egregious negligence and gravity. It is impossible to reconcile acceptance of
such erroneous failure to explain his increase, especially when coupled with
other clear errors, with the Commission’s decision in Hidden Splendor, supra.

Fifth,
the Judge either did not understand or did not think it important to note that
the proposed assessment was a special assessment in which the penalty proposal
was already increased above the regular point system on the basis of heightened
negligence and/or gravity. Without that understanding, the increase is a
substantial increase on top of a substantial increase above the otherwise
predictable penalty without an explanation by MSHA for its increase or by the
Judge for his overlapping substantial increases.

By not explaining the very substantial modifications as compared
to the proposed penalties, the Judge creates the danger of the appearance of
arbitrariness against which Sellersburg Stone Co. and its progeny are
designed to protect. The Judge increased an already increased penalty to – in
fact beyond – the maximum without substantial explanation. The penalty
assessment appears, therefore, to be a reflexive rather than reflective action
apparently flowing from intent to inflict maximum financial pain.

Conclusion

Penalties should reflect as objective as
possible application of the penalty criteria. Based upon the decision in this
case, I find no assurance of such a process.

The Judge assessed a penalty above the
statutory maximum; he erred in his application of the appropriate size of
business factor; he erred by categorizing the specially assessed proposed
penalty as a minimum; he gave no consideration to findings by MSHA and other
Commission Judges that “reasonable potential to cause death” equates with “life
threatening;” he did not recognize his assessments were substantial changes
from the already specially assessed proposed penalties; he did not recognize he
had a duty to explain the change, and did not do so.

These errors constitute an abuse of
discretion. As in Hidden Splendor, I would remand the penalties associated
with the violations to the Judge for further explanation consistent with the
requirements for explanation of substantial divergences and for proper
application of the penalty criteria.

/s/
William I. Althen

William
I. Althen, Commissioner

[1]
Section 50.10 states in relevant part that an
“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:

. . .

(b) An
injury of an individual at the mine which has

a
reasonable potential to cause death;

. . .
or

(d) Any
other accident.

30 C.F.R. § 50.10. For
the purposes of subsection (d), the definition of “accident” includes “an
unplanned roof or rib fall in active workings that impairs ventilation.” 30
C.F.R. § 50.2(h)(8).

[2]
Section 50.12 states in relevant part: “no
operator may alter an accident site . . . until completion of all
investigations pertaining to the accident.” 30 C.F.R. § 50.12.

[3]
The “significant and substantial” language is
found in section 104(d)(1) of the Act, which refers to “a violation of any
mandatory health or safety standard . . . of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d)(1).

[4]
The Secretary’s regulations for proposing
penalties state that “reckless disregard” is “conduct which exhibits the
absence of the slightest degree of care.” 30 C.F.R. § 100.3, Table X.

[5]
Harcourt had become certified as a basic level
EMT only eight months earlier, and this was the first serious traumatic injury
he had attended to. Tr. 356-57, 385-86.

[6]
Johnson also issued an uncontested section
103(k) withdrawal order. 34 FMSHRC at 1351 n.11. Section 103(k) states in part
that “[i]n the event of any accident . . . an authorized representative of the
Secretary, when present, may issue such orders as he deems appropriate to
insure the safety of any person in the coal or other mine.” 30 U.S.C. § 813(k).

[7]
The Judge also delineated subsequent times at which
it was clear that Stewart’s injuries constituted a reportable accident. 34
FMSHRC at 1369. Although we agree that Signal Peak should have understood the
need to report the accident to MSHA at each of these later moments, we need not
discuss them in detail. The reporting period clearly commenced when Harcourt
reached Stewart after the blast which threw him 50 to 80 feet.

[8]
Commissioner Cohen disagrees with his colleagues
that the Commission should not take this opportunity to define the phrase “reasonable
potential to cause death” contained in 30 C.F.R.    § 50.10(b). The Judge
rejected Signal Peak’s argument that a miner must sustain an injury that
qualifies as “life-threatening” to trigger the reporting requirements of
section 50.10(b). 34 FMSHRC at 1369. The Judge concluded that Signal Peak’s
position was contradicted by the plain language of the standard which requires
only “a reasonable potential to cause death.”

The term “potential” is
commonly understood to mean “something [that is] ‘capable of being,’ or
something which presents a ‘possibility,’ albeit not yet in existence.” Id.
at 1368. 

Commissioner
Cohen agrees with the distinction identified by the Judge -- a “reasonable
potential to cause death” is not synonymous with “life threatening.” The Judge
correctly discerned that the reporting requirement in section 50.10(b)
contemplates a subjective immediate evaluation governed by the concern for the
“possible,” not an objective clinical examination as suggested by Signal Peak. See
SP Br. at 12-14. The Judge’s analysis is consistent with the Commission’s
decision in Cougar Coal Co., 25 FMSHRC 513, 521 (Sept. 2003), in which
we stated that “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.” See also 71 Fed. Reg. 71,430, 71,434 (Dec. 8,
2006). 

Commissioner
Cohen suggests that the Commission adopt the following definition of “reasonable
potential to cause death”: The reporting requirement of section 50.10(b) is
triggered when a miner is injured in a manner that would cause a reasonably
prudent mine operator to consider the possibility that the injured miner’s life
may be in jeopardy. Obviously, because the extent of an injury is not always
immediately apparent, the totality of the circumstances, including how the
injury occurred, should be considered by the mine operator.

[9]
When reviewing a Judge’s factual determinations,
the Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means
“such relevant evidence as a reasonable mind might accept as adequate to support
[the Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

[10]
The Judge credited Inspector Johnson’s testimony
that both mine and hospital personnel informed him that the blast had thrown
Stewart 50-80 feet. 34 FMSHRC at 1352. Even the   40 foot estimate provided by
Rice is a significant distance. Tr. 459.

[11]
According to Inspector Johnson, Harcourt told
him that Stewart “was in excruciating pain,  ten plus on a pain scale, pretty
critical.” Tr. 70.

[12]
“Active workings” are defined as “any place in a
coal mine where miners are normally required to work or travel.” 30 U.S.C. §
878(g)(4).

[13]
While the Secretary’s Program Policy Letters
cannot prescribe binding rules of law, see   The American Coal Co., 34
FMSHRC 1963, 1970-71 (Aug. 2012), they can be instructive. The Secretary’s
Program Policy Manual can clarify or explain a regulation’s language and
therefore provide instruction to mine operators. See Tilden Mining Co.,
36 FMSHRC 1965, 1969-70 (Aug. 2014). MSHA considers Program Policy Letters “an
integral part of the Program Policy Manual.” MSHA, Program Policy Manual,
www.msha.gov/REGS/COMPLIAN/PPM/PMMA
INTC.HTM (last visited Feb. 25,
2015). 

[14]
Although the roof fall caused an air blast which
damaged stoppings in active workings, and thus impaired ventilation, Del Duca
testified that the stoppings were not hit with anything from the roof fall
other than the air blast. Tr. 331; 34 FMSHRC at 1381 n.57. We do not address
the question of whether a roof fall outside of active workings which expels
physical debris or other material into active workings could be considered an
“accident” within the meaning of 30 C.F.R. § 50.2(h)(8).

[15]
We can understand that from a policy standpoint,
it might be useful to consider an unplanned roof fall in the gob which impairs
ventilation or impedes passage in active areas as a reportable accident under
30 C.F.R. § 50.10(d). If Mike Stewart had not been injured in this accident,
under our holding today the roof fall would not have been an occurrence which
needed to be reported to MSHA. If that had been the case, the resulting changes
to Signal Peak’s roof control plan, which encouraged earlier and smaller caves
on future longwall panels, 34 FMSHRC at 1378-79, would not have been made. However,
we are constrained by the language of the regulation to rule as we have.

[16]
Section 101(b) states that the Secretary shall
provide an Emergency Temporary Standard if he determines that miners are
exposed to a grave danger. The provision outlines the process for transforming
the temporary standard into a mandatory standard through notice-and-comment
rulemaking, as described in section 101(a). 30 U.S.C. § 811(b).

[17]
Although the accident at issue is Stewart’s
injury rather than the roof fall, an investigation into the cause of the
accident necessarily would, and ultimately did, lead MSHA to discover the roof
conditions that caused the unexpectedly massive initial fall and to suggest
means (hydrofracking) to prevent such an event on future panels. Tr. 310.

[18]
MSHA’s inspector and roof specialist conceded
that the initial fall on a longwall panel is generally the largest. Tr. 93-94,
282-83. However, the record does not indicate whether subsequent falls would
still have been large enough to cause serious injury. It is also true that MSHA
allowed mining to resume on the cited panel without requiring modifications to
the roof control plan. Tr. 302-03. But this happened only after additional
safety precautions were put in place at MSHA’s instigation. Tr. 304-06.

[19]
Signal Peak does not explicitly challenge the
Judge’s finding of reckless disregard for Citation No. 8463718. However, if
Signal Peak intended to also challenge the reckless disregard finding “for the
same reasons” as for Citation No. 8463717, i.e., that it reasonably believed
the injuries were not immediately reportable, that argument is again rejected. See
supra p. 12.

[20]
Section 110(a)(1) of the Act states that the “operator
of a coal or other mine in which a violation occurs of a mandatory health or
safety standard or who violates any other provision of this [Act], shall be
assessed a civil penalty by the Secretary which penalty shall not be more than
$50,000 for each such violation.” 30 U.S.C. § 820(a)(1). In 2008, the maximum
was adjusted to $70,000 through rulemaking to account for inflation, pursuant
to the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. No.
101-410, 104 Stat. 890 (28 U.S.C. § 2461 note)), as amended by the Debt
Collection Improvement Act of 1996 (Pub. L. No. 104-134, Title III, Apr. 26,
1996, 110 Stat. 1321) and the Federal Reports Elimination Act of 1998 (Pub. L.
No. 105-362, Title XIII, Nov. 10, 1998, 112 Stat 3280). See 30 C.F.R. §
100.3(a); 73 Fed. Reg. 7206, 7207-08 (Feb. 7, 2008).

[21]
In 2012, the $60,000 maximum was raised to
$65,000 to account for inflation. See supra n.20; 30 C.F.R. § 100.4(c);
77 Fed. Reg. 76,406, 76,406-07 (Dec. 28, 2012). However, adjustments for
inflation “shall apply only to violations which occur after the date the
increase takes effect.” Sec. 6, Federal Civil Penalties Inflation Adjustment
Act of 1990 (Pub. L. No. 101-410, 104 Stat. 890 (28 U.S.C. § 2461 note)), as
amended by the Debt Collection Improvement Act of 1996 (Pub. L. No. 104-134,
Title III, § 31001(s)(2), Apr. 26, 1996, 110 Stat. 1321) and the Federal
Reports Elimination Act of 1998 (Pub. L. No. 105-362, Title XIII, §§
1301(a)(1), 1301(a)(2), Nov. 10, 1998, 112 Stat 3280). These violations
occurred in 2009; therefore the pre-adjustment maximum of $60,000 applies.

[22]
Penalties for non-flagrant violations of section
50.10(d) (for failure to report “any other accident”) are governed by section
110(a)(1) of the Act rather than section 110(a)(2), as these violations have no
counterpart in section 103(j). Here, however, there was no violation of section
50.10(d) because the roof fall was not, in and of itself, a reportable
accident. See supra p. 9. Citation No. 8463717 involves a non-flagrant
violation of section 50.10(b) only. Therefore the maximum assessable penalty is
governed by section 110(a)(2) of the Act. The lower penalty for an accident
involving death or a reasonable potential to cause death is an anomalous result
given Congress’ concern in enacting section 103(j). Nevertheless, it is
compelled by a fair reading of the various Acts and regulations involved.

[23]
Section 110(i) states in relevant part:

The
Commission shall have authority to assess all civil penalties provided in this
Act. In assessing civil monetary penalties, the Commission 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
in attempting to achieve rapid compliance after notification of a violation.

30
U.S.C. § 820(i).

[24]
The Judge also found that Signal Peak did not
show good faith, as that term is employed under 30 U.S.C. § 820(i). 34 FMSHRC
at 1383.

[25]
Relying on our decision in Hidden Splendor
Resources, Inc., 36 FMSHRC ___ (Dec. 2014), Commissioner Althen would
vacate and remand this decision, instructing the Judge to explain why he
substantially diverged from the Secretary’s penalty proposal. Slip op. at 17. However,
the two cases are readily distinguishable. In Hidden Splendor, the Judge
explained why the penalty would not affect the operator’s ability to pay, but
as for the other factors, simply stated: “I have reviewed the Assessed
Violation History Report, which is not disputed. At all pertinent times, Hidden
Splendor Resources, Inc. was medium in size. The violations were abated in good
faith. The gravity and negligence findings are set forth above.” 34 FMSHRC
3310, 3380-81 (Dec. 2012) (ALJ). In other words, the Judge did not specify how
his findings on gravity, negligence, or any other factor (apart from the
operator’s ability to pay) impacted his penalty assessment. In contrast, in
this case the Judge’s penalty analysis details the gravity and negligence
associated with the citations. In addition to the negligence findings cited
above, the Judge specified that “regarding the violation of 30 CFR § 50.12, the
failure of Signal Peak to preserve the evidence, that can be viewed as more
serious because it eliminated MSHA’s ability to assess the accident site.” 34
FMSHRC at 1383-84. In other words, unlike in Hidden Splendor, the Judge
here specified which factors he weighed more heavily and why. We note that the
Commission has held that Judges have not abused their discretion by more
heavily weighing gravity and negligence than the other penalty criteria. Lopke
Quarries, Inc., 23 FMSHRC 705, 713 (July 2001); Musser Engineering, Inc.,
32 FMSHRC 1257, 1289 (Oct. 2010).

Commissioner
Althen also states that the Judge erred in assessing the size of the operation,
by rejecting the tonnage in Exhibit A in favor of testimony regarding shipping

goals. However, it is only 30
C.F.R. Part 100, governing the Secretary’s proposed penalties,

that refers to tonnage. See
30 C.F.R. § 100.3(b). Section 110(i), governing a Judge’s assessment of penalties,
only requires that a Judge consider whether the penalty is appropriate to the
size of the business. Considering testimony regarding numbers of employees and
shipping goals seems to fit within that description.

[26]
The Secretary proposed penalties of $49,500 and
$1,900 for Citation No. 8463717 and Citation No. 8463178, respectively. The
Judge increased the penalties to $74,250 and $9,500, respectively. 34 FMSHRC at
1346 n.1. The Commission’s reduction of the penalty for Citation No. 8463717 to
the maximum allowed by law does not obviate the abuse of discretion in failing
to explain the substantial change from the penalty assessed by MSHA. Further,
the maximum penalty of $60,000 and the unchanged penalty of $9,500 continue to
constitute substantial changes from the assessed penalties. Although the
Commission has not defined the term “substantial” or reduced the term to a
percentage variance, all must agree that changes of 50% from $49,500 to $74,250
($24,750) and of 500% from $1,900 to $9,500 ($7,600) are substantial.

[27]
I do “rely[ ] on” Hidden Splendor for the
accepted proposition that Judges must explain substantial divergences from the
Secretary’s penalty proposal. See slip op. at 15-16 n.25. Hidden
Splendor is most notable here, however, as a case in which the Judge’s
findings on each of the penalty criteria were essentially parallel to the
Secretary. We remanded the case for an explanation of a penalty reduction of
less than $1,500 as compared to the nearly $25,000 increase in this case. The
sauce for the goose must be the sauce for the gander. In that vein,  one may
wonder if the majority would accept a fifty percent penalty reduction partially
based upon a finding that the operator apparently planned to reduce production
in coming years. See infra p. 20.

[28]
Available at www.msha.gov/PROGRAMS/ASSESS1.htm (follow “Special
Assessment Guidelines” hyperlink) (last visited February 26, 2015). As it
behooves Commission Judges to explain substantial divergence from the proposed
penalty, it would seem to behoove the Secretary to explain substantial
divergence from the regular penalty criteria. However, the Mine Act permits the
Secretary to propose penalties on the basis of narrative findings. It is up to
the Commission to guard against overly lenient or punitive penalty proposals by
the Secretary.

[29] The primacy of negligence and gravity is shown by
MSHA’s explanation that the assessments are made on the basis of five of the
six criteria (omitting the effect on the operator’s ability to continue in
business) and the description of special assessment penalty point assignments
for the other three penalty criteria:

(1) For size of business, the
guidelines state “[f]or most special assessments, MSHA assigns the regular
assessment penalty points for size derived from § 100.3(b), Tables I through
V;”

(2) For violation history, “MSHA
assigns the regular assessment penalty points for Violation History from
Tables VI and VII [of § 100.3(c)]. For special assessments MSHA assigns the
regular assessment penalty points for Repeat Violation History from
Tables VIII and IX [of

§ 100.3(c)], except for
flagrant violations;” and,

(3) For abatement and good
faith, the guidelines state “[i]n general, if an operator abates a citation
within a reasonable period of time, as prescribed by the citation, the total
number of special assessment penalty points is reduced by 2 points.” The
guidelines also permit special assessment penalty points for an unwarrantable
failure, imminent danger order, and for defiance of a withdrawal order.

[30]
Although explanations are best made explicitly,
an explanation sometimes may be implicit. For example, the Judge’s finding that
the hazard occurred might explain implicitly a substantial increase in the
penalty for violation of 30 C.F.R. § 50.12. We note that, while the violation
occurred, MSHA was able to examine the site and make suggestions to prevent
recurrence.

Slip op. at 3. The Judge’s
finding that the hazard occurred, therefore, most likely reflects a finding
that the hazard would have occurred if a reporter had not made an inquiry
regarding the incident. Even that finding might have constituted an implicit
explanation had the Judge not committed other errors indicating more may have
been at work in the increased penalty than a different gravity finding.

[31] It is also noteworthy that the Judge created out of
whole cloth a heretofore unknown interpretation of “reasonable potential to
cause death” by defining this phrase to mean that     the possibility of death
is “not far-fetched.” 34 FMSHRC at 1368. In creating his far-fetched
definition, the Judge summarily rejects: (1) the inspector equated “reasonable
potential to cause death” with “life threatening,” Tr. 189; (2) the preamble to
the Emergency Mine Evacuation regulation equates “reasonable potential to cause
death” with “life threatening,” 71 Fed. Reg. 71,430, 71,433-34 (Dec. 8, 2006);
(3) numerous Commission Judges have used “life threatening” in construing
“reasonable potential to cause death,” Vulcan Construction Materials, L.P.,
35 FMSHRC 2868, 2879 (Aug. 2013) (Judge Gill); Cemex, Inc. 35 FMSHRC
1355, 1365 (May 2013) (Judge Miller); Walker Stone Co., 23 FMSHRC 180,
183 (Feb. 2001) (Judge Feldman);

Consolidation Coal Co., 9 FMSHRC 1950 (Nov. 1987) (Judge Broderick); Climax Molybdenum Co.,
2 FMSHRC 1967, 1970-1971 (July 1980) (Judge Morris); and (4) the
Secretary’s reliance in his post-hearing brief upon the interpretation of the
standard as meaning a “life threatening” condition. S. Post-Hearing Brief, p.

10. An interpretation as abstruse as “not far-fetched” sheds no light on the
    nature of an event having a “reasonable potential to cause death.” The Mine Act
    is a mature statute. There is no reason to invent new and even more ambiguous
    interpretations of its terms.