Secretary of Labor v. Canyon Fuel Company, LLC, et al.

Read the official release (fmshrc.gov)

Plain-English summary

A rib burst at Canyon Fuel's Skyline Mine #3 knocked a miner into equipment, buried him in coal, fractured his skull, and caused other serious injuries. The Judge affirmed an S&S rib-control violation but reduced negligence to moderate, removed the unwarrantable-failure designation, and assessed $25,000. He also affirmed an S&S, high-negligence, unwarrantable failure to notify MSHA within 15 minutes and assessed $50,000, finding that a miner buried by a rib burst with a bleeding head wound had a reasonable potential to die even before a definitive medical assessment. Shift foreman Shane Allred and safety manager Michael Cooper were held personally liable for $1,000 and $1,500, while the proposed liabilities of Jed Gordon, Jake Wilson, and Dewey Tanner were vacated. The Commission later reinstated high negligence and unwarrantable failure for the rib order, affirmed the reporting and individual-liability rulings, and remanded the rib penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a) and 50.10(b); 30 U.S.C. § 820(c)
• Outcome: Both company orders were affirmed with $75,000 in penalties; Allred and Cooper were held personally liable, while three other individual assessments were vacated.
• Subsequent review: The Commission reinstated high negligence and unwarrantable failure for the rib order and remanded its penalty in west-2021-0229-commission.
• Key point: A burial and bleeding head injury triggered immediate reporting, and responsible managers could not wait for a later medical diagnosis before notifying MSHA.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner,
v.
CANYON FUEL COMPANY, LLC, Respondent,
&
DEWEY TANNER, employed by CANYON FUEL COMPANY, LLC, Respondent,
SHANE ALLRED, employed by CANYON FUEL COMPANY, LLC, Respondent,
JAKE WILSON, employed by CANYON FUEL COMPANY, LLC, Respondent,
JED GORDON, employed by CANYON FUEL COMPANY, LLC, Respondent,
MICHAEL COOPER, employed by CANYON FUEL COMPANY, LLC, Respondent. |
|
|
CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2021-0188 A.C. No. 42-01566-532508
Docket No. WEST 2021-0229 A.C. No. 42-01566-535306
Docket No. WEST 2021-0254 A.C. No. 42-01566-536066
Docket No. WEST 2021-0314 A.C. No. 42-01566-540906 A
Docket No. WEST 2021-0315 A.C. No. 42-01566-540910 A
Docket No. WEST 2021-0317 A.C. No. 42-01566-540907 A
Docket No. WEST 2021-0318 A.C. No. 42-01566-540908 A
Docket No. WEST 2021-0319 A.C. No. 42-01566-540909 A
Mine: Skyline Mine #3 |

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Appearances: Jason S. Grover, Office of the Solicitor, U.S. Department of Labor,

Arlington, Virginia, for the Petitioner

Rebecca Mullins, Office of the Solicitor, U.S. Department of Labor,

Arlington, Virginia, for the Petitioner

R. Henry Moore, Esq., Fisher & Phillips LLP, Pittsburgh,

Pennsylvania, for the Respondent

Before: Judge Young

SUMMARY

Order No. 8541891, 30 C.F.R. §
75.202(a): Failure to protect from falls of roof, face, and ribs. A rib burst occurred, covering a
miner in coal and resulting in injuries.

Fact of violation Yes p. 13

S&S Yes p. 14

Negligence Moderate p. 16

Unwarrantable Failure No p. 18

Penalty $25,000.00 p. 19

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Order No. 8541892, 30 C.F.R. §
50.10(b): Failure to immediately notify MSHA following injury of an individual
which has a reasonable potential to cause death.[1] Operator did not immediately
report a rib burst that buried a miner in coal and caused significant injuries.

Fact of violation Yes p. 20

S&S Yes p. 33

Negligence High p. 35

Unwarrantable Failure Yes p. 37

Penalty $50,000.00 p. 42

Individual Liability
under Order No. 8541892, 30 U.S.C. § 820(c): Aggravated failure to immediately report
an accident with a reasonable potential to cause death.

Shane Allred $1,000.00 p. 47

Michael Cooper $1,500.00 p. 49

Jed Gordon No Liability p. 49

Jake Wilson No Liability p. 49

Dewey Tanner No Liability p. 49

I.
INTRODUCTION

This
case is before me upon petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended (“Mine Act” or “Act”), 30 U.S.C. §
815(d) (2023). At issue are two orders under section 104(d)(1), issued to
Respondent, Canyon Fuel Company, LLC (“Canyon Fuel” or “Respondent”).[2] The parties presented testimony
and documentary evidence at a hearing on May 17–19, 2022, and filed
post-hearing briefs.

Canyon
Fuel owns and operates Skyline Mine #3, located near Scofield, Utah. Joint
Stipulations ¶ 1, 2 (May 6, 2022) (“Stips.”). Skyline is a large, underground
coal mine, subject to the jurisdiction of the Mine Act. Id. ¶ 3, 16. Order
No. 8541891 alleged a failure to protect miners from mine roof, face, and rib
falls. Order No. 8541892 alleged a failure to report an immediately reportable injury
that had a reasonable potential to cause death. For reasons set forth below, I AFFIRM
both violations, but MODIFY Order No. 8541891 to “Moderate” negligence
and remove the “Unwarrantable Failure” designation. I also find Shane Allred
and Michael Cooper personally liable for the violation of Order No. 8541892.

II. STANDARDS

A. Violation

The
Secretary must prove the elements of an alleged violation by a preponderance of
the evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006);
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Mine
operators are generally strictly liable for mandatory safety standard
violations. See Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358,
361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc., 33 FMSHRC
1759, 1764 (Aug. 2011).

B. Significant
and Substantial (“S&S”)

A
violation is properly designated as S&S if, “based upon the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (citing Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)). The four
elements required for an S&S finding are expressed as follows:

(1) [T]he underlying violation of a mandatory safety standard; (2) the violation was reasonably likely to cause the occurrence of the discrete safety hazard against which the standard is directed; (3) the occurrence of the hazard would be reasonably likely to cause an injury; and (4) there would be a reasonable likelihood that the injury in question would be of a reasonably serious nature.

Peabody
Midwest Mining, LLC,
42 FMSHRC 379, 383 (June 2020) (integrating the refinement of the second Mathies
step in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016)).

An
S&S determination must be based on the assumed continuation of normal
mining operations. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr.
2021) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984))
(“A determination of ‘significant and substantial’ must be based on the facts
existing at the time of issuance and assuming continued normal mining
operations, absent any assumption of abatement or inference that the violative
condition will cease.”).

C. Negligence

Judges
may use a traditional negligence analysis, rather than relying upon Part 100
definitions. Brody Mining, LLC, 37 FMSHRC 1687, 1701–02 (Aug. 2015)
(citing Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100
regulations apply only to the proposal of penalties by MSHA and the Secretary
of Labor; under both Commission and court precedent, the regulations do not
extend to the independent Commission, and thus the MSHA regulations are not
binding in any way on Commission proceedings.”). The reasonably prudent person
standard should be that of one “familiar with the mining industry, the relevant
facts, and the protective purposes of the regulation.” Brody Mining, LLC,
37 FMSHRC at 1702.

D.
Unwarrantable
Failure

Unwarrantable
failure is “aggravated conduct constituting more than ordinary negligence,” Manalapan
Mining Co., 35 FMSHRC 289, 293 (Feb. 2013) (citing Emery Mining Corp.,
9 FMSHRC 1997, 2001 (Dec. 1987)), and characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. (citing Emery Mining Corp., 9
FMSHRC at 2003–04); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133,
136 (7th Cir. 1995).

Whether conduct is “aggravated” is based on the following factors:

[1] [T]he operator’s knowledge of the existence of the violation, [2] whether the violation was obvious, [3] whether the violation posed a high degree of danger, [4] the extent of the violative condition, [5] the length of time that the violative condition has existed, [6] the operator’s efforts in abating the violative condition, and [7] whether the operator has been placed on notice that greater efforts are necessary for compliance.

Peabody
Midwest Mining, LLC,
44 FMSHRC 515, 522 (Aug. 2022) (citing Manalapan Mining Co., 35 FMSHRC
at 293; IO Coal Co., 31 FMSHRC 1346, 1350–51 (Dec. 2009)). A judge must
examine “all relevant factors, rather than relying on one to the exclusion of
others.” IO Coal Co., 31 FMSHRC at 1351 (citing Windsor Coal Co.,
21 FMSHRC 997, 1001 (Sept. 1999)) (acknowledging that a judge may determine
that some factors are less important or not relevant but must consider them all).

A high degree of danger posed by a violation alone may support an
unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug.
1992) (finding unwarrantable failure where unsaddled beams “presented a danger”
to miners entering the area); Warren Steen Constr., Inc., 14 FMSHRC
1125, 1129 (July 1992) (finding a violation to be aggravated based upon “common
knowledge that power lines are hazardous, and . . . that precautions are
required when working near power lines with heavy equipment”); Quinland Coals, 10 FMSHRC 705,
709 (June 1998) (finding unwarrantable failure where roof conditions were
“highly dangerous”). The absence of significant danger, however, does not
necessarily preclude a finding of unwarrantable failure. Manalapan Mining,
35 FMSHRC at 294.

An
objectively reasonable, good faith belief in a violative practice’s compliance
is a defense against unwarrantable failure. IO Coal Co., 31 FMSHRC at
1357.[3] A respondent must therefore
present facts demonstrating both a good faith belief, and the reasonableness of
that belief.

E. Penalty

The Commission considers the following factors, from Section 110(i) of the Act, in assessing penalties under the Act:

[T]he operator’s [1] history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i) (2006).

F. Individual Liability

Section 110(c) liability for an agent is stated as follows:

Whenever a corporate operator violates a mandatory health or safety standard or knowingly violates or fails or refuses to comply with any order issued under this Act . . . any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d).

30 U.S.C.
§ 820(c) (2023). “Knowingly” requires a finding that the agent knew or had
reason to know of the violative condition. Kenny Richardson, 3 FMSHRC 8,
16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert.
denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v.
FMSHRC, 108 F.3d 358, 362–64 (D.C. Cir. 1997).

To
establish section 110(c) liability, the Secretary must prove only that an
individual knew or had reason to know of the violative condition, not that the
individual knowingly violated the regulation. Warren Steen Constr., Inc.,
14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int’l Miners &
Chem. Corp., 402 U.S. 558, 563 (1971)); see also Ernest Matney, 34
FMSHRC 777, 784 (Apr. 2012) (“[S]ection 110(c) liability does not hinge on
whether an agent engaged in ‘willful’ conduct.”). A knowing violation occurs
when an individual “in a position to protect employee safety and health fails
to act on the basis of information that gives him knowledge or reason to know
of the existence of a violative condition.” Kenny Richardson, 3 FMSHRC
at 16.

The
Commission recently affirmed a liability finding where a judge used a
three-part test for individual liability: (1) that the agent knew or had reason
to know about the violative condition; (2) that the agent was in a position to
remedy the condition; and (3) that the agent failed to act to correct the condition.
Peabody Midwest Mining, LLC, 44 FMSHRC at 526–27, 259. The agent’s
conduct—or failure to act—must be “aggravated.” Id. at 527.

Section
110(c) liability is predicated on aggravated conduct more than ordinary
negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).[4] A judge may use the factors for
aggravated conduct that the Commission expressed for an unwarrantable failure
analysis.

A
finding of unwarrantable failure for the underlying violation alone is
insufficient to hold a prosecuted agent individually liable. The elements of
such a finding, however, can be imputed to an agent where he or she is reasonably
responsible for the violative area or action and fails to exercise reasonable
care to protect miners. See Matney, 34 FMSHRC at 785, 786. In Matney,
the Commission found that the “readily apparent” nature demonstrated that a
shift foreman should have known that the condition existed. Id. at 785. It
was his failure to be sufficiently thorough in his duties that led the
Commission to find him liable. See id. at 786 (“The evidence compels the
conclusion that a preshift examiner, exercising reasonable care, would have
identified the hazardous roof conditions and taken action to remedy the
hazards.”).

Like
unwarrantable failure, an agent’s reasonable, good faith belief is a defense to
individual liability under section 110(c). LaFarge Constr. Materials, 20
FMSHRC 1140, 1150 (Oct. 1998) (citing Wyoming Fuel Co., 16 FMSHRC 1618,
1630 (Aug. 1994)). In line with the requirement that the belief be reasonable,
an agent cannot defend against individual liability by relying on the existence
of “usual procedures” found to be “wholly inadequate.” See LaFarge, Constr.
Materials, 20 FMSHRC at 1150; see also Matney, 34 FMSHRC at 786
(quoting Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984)) (“[A] supervisor’s
blind acquiescence in unsafe working conditions would not be tolerated.”).

III.
Factual
Findings

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On
August 25, 2020, just before 5:08 p.m.,[7] Complainant Bryce Adams was
working in the 8 Right Longwall when a rib burst occurred. Tr. 15, 33–35.[8] It was strong enough to send rib
material 3 feet deep and 5 feet wide from the rib to the 8 Bay, a large piece
of equipment that Mr. Adams was maintaining.[9] Id. at 33, 449. The
material struck him in the back and forced him into the 8 Bay, slamming his
forehead on a bolt head on the machine and covering him in coal up to the top
of his torso. Id. at 16, 35, 232–34. He had blood running down his face,
id. at 36, 233, and he believed his legs might be broken because of
their positioning, though he could not move his extremities, see id. at
36–37 (“I was packed in there so tight that I couldn’t even -- I couldn’t
wiggle my fingers; I couldn’t wiggle my toes.”).[10]

Steve
Childs first reacted, yelling for assistance and informing Charlie Wilson—who
immediately called to inform Shane Allred, the shift foreman and responsible
person on duty. Tr. 36; see id. at 263 (testimony of Shane Allred that
Mr. Wilson had communicated with Mr. Childs). Mr. Allred was informed that Mr.
Adams was “covered up with coal along the 8 Bay of the longwall.” Id. at
262–63.

Dayna
Anderson, a trained emergency medical technician (“EMT”) miner, was also
immediately called to respond. Tr. 90 (testimony of Dayna Anderson that he
heard someone was buried over the mine phone); id. at 264–65 (testimony
of Shane Allred that he called Conspec[11] from his truck to find Mr.
Anderson and have a county ambulance called). Mr. Allred immediately began to
drive to the incident site.

Michael
Cooper, the mine safety manager, was informed of the incident by Conspec
shortly thereafter. Tr. 301–02.[12] He reported the incident to Jed
Gordon, the operations manager, between 5:20 and 5:25.

During
the 30 minutes these calls were being made, five-or-six miners, Tr. 38,
including John Bonnanci, the longwall foreman, and Mr. Childs, were working
“feverishly” to dig out Mr. Adams. Id. at 235. Mr. Bonnanci noticed the
laceration, and he and Mr. Childs wrapped Mr. Adams’ head with gauze. Id.
at 19, 233–34. Mr. Adams also complained of “bad” neck pain, id. at 38,
so the other miners brought him a cushion on which to rest his head while they
continued uncovering him, id. at 38–39, 234.

It
took approximately 30 minutes to uncover Mr. Adams. Tr. 235.[13] During this time, Mr. Allred spoke
with Mr. Wilson again while en route to the site, but he did not ask any
questions or receive any further information about Mr. Adams’ injuries during
the trip.

When Mr. Allred arrived at the scene, Mr. Adams was wearing a cervical collar. He was conscious and coherent and mentioned pain in his right knee, upper back, neck, and forehead; and the gauze on his head was soaked through with blood. Tr. 92–93, 98.

Mr.
Adams joked with Mr. Allred that he could walk out if they needed. Tr. 60, 269.
Mr. Allred checked with Mr. Anderson whether Mr. Adams’ leg was fractured,
whether he might die, and whether he had movement in his extremities. Id.
at 268–69.

Mr.
Anderson did not tell anybody that he thought Mr. Adams’ injuries were “life
threatening,” though he testified that he would have reported the incident
based on the injury. Tr. 101–02. Mr. Allred did not assess the injuries as “life
threatening.” Id. at 274; see also id. at 291 (“[O]nce I was able
to speak with him and talk to him and see what his condition was, yeah, he
seemed actually really normal to me.”).

Mr.
Adams was loaded onto the mine ambulance to be evacuated to the surface. Mr.
Anderson and Mike Allred, Mr. Adams’ work group supervisor, Tr. 84, rode with
him. Id. at 270.[14] Mr. [Shane] Allred told miners to
stay out of the area until they could evaluate; he knew Messrs. Gordon and
Wilson were on the surface and would come inspect.

Mr.
Cooper reported that Mr. Adams’ head had been bandaged, the bleeding was under
control, and that he had neck and back pain and a possible broken leg. Tr. 274,
303–04. Mr. Cooper relayed this information to Mr. Gordon, id. at 326,
361–62, and Mr. Tanner, id. at 437. Mr. Allred called Mr. Wilson and
gave him the same assessment. Id. at 375. All respondent-witnesses
stated that they observed, or were informed, that Mr. Adams was conscious and
coherent during the time between the incident and when he was transported to
the hospital. Id. at 267, 325, 339, 376, 439.

While
these calls occurred, Mr. Adams was being further tended to on his way out of
the mine. Mr. Anderson rewrapped his head wound, noting that “[he] could see
his skull,” and “it was dented in.” Tr. 93.[15] Mr. Adams continued to experience
significant pain in his neck, head, and right leg and knee.

The
Carbon County ambulance crew and a flight medic were waiting on the surface
when Mr. Adams arrived. Tr. 20, 95. He was transferred from the mine ambulance
to be evaluated by the ambulance paramedics. Id. at 20, 42, 56–57, 463.

---

Marty
Wilson, a responding county paramedic, testified that Mr. Adams did not seem to
be in danger of death at the time. Tr. 471–72. In explaining her conclusion,
she said that Mr. Adams was talking and coherent and could move all
extremities; his pupils reacted normally; he had good blood pressure; his pulse
showed no signs of shock; his respiration and oxygen were acceptable; he had a
good Glasgow coma score;[16] he had a perfect revised trauma
score; and he had favorable scores regarding a head injury.

Messrs.
Gordon and Wilson observed and spoke with Mr. Adams during this evaluation. Tr.
42, 56–57, 338–41, 377–78. Mr. Gordon felt the injuries were “not life
threatening” based on observation and Mr. Adams’ responses to questions. Id.
at 339, 342–43. Mr. Adams responded to Mr. Wilson’s queries, noting that he was
cold and wet. Id. at 377. He then joked with Mr. Wilson, requesting that
someone take the chew can out of his pocket so his wife would not find it. Id.
at 378. Mr. Wilson similarly did not feel the injuries were “life threatening”
based on the interaction. Id.

Mr.
Wilson spoke with Messrs. Anderson and Allred to review the injuries. Tr. 342. Mr.
Anderson described the length and depth of the laceration, but he did not
mention the possible shock and again did not say that he thought the injuries
were “life threatening.” Id. at 342, 379, 388. Messrs. Wilson and Gordon
decided the incident was not reportable based on what they were told. Id.
at 362. Mr. Wilson then called Mr. Tanner to inform him that Mr. Adams seemed
to be in good shape, and that it had been determined that the injury was not
reportable. Id. at 439–40. Mr. Adams had been transported to the Life
Flight helicopter, which took him to the hospital. Id. at 17, 43. Messrs.
Gordon and Wilson then went underground to investigate the incident site. Id.
at 345, 380.

Messrs.
Gordon and Wilson testified that one of the props that had been set prior to the
incident that injured Mr. Adams had been dislodged, and that similarly placed
rib mesh was still attached to the roof where coal had fallen from beneath. Tr.
345–46, 381–82. These had been installed after a similar incident, at a rib
inby the same section, five days earlier [August 20, 2020] that buried an 8 Bay
controller. See id. at 46, 241, 280, 357, 418; Ex. GX-2, DOL 0037. Though
production did not continue that shift,[17] Mr. Gordon testified that he and
others continued on to inspect the longwall.

Mr.
Cooper arrived at the hospital before Mr. Adams’ wife, Aubrey, but he was
unable to enter to observe Mr. Adams because of COVID restrictions. Tr. 74–75,

308. Ms. Adams testified that her impression was that her husband’s injuries
     were very serious, that multiple doctors were involved in his treatment, and
     that he was in pain. Id. at 77–78.

Mr.
Adams was taken to surgery about an hour after she arrived. Tr. 77. Ms. Adams
texted Mr. Cooper to update him about her husband’s condition. Id. at
79, 310 (informing him that Mr. Adams had a skull fracture, was in surgery, and
had a C5 vertebra injury). Mr. Cooper forwarded that update to Messrs. Allred,
Gordon, Wilson, and Tanner. Id. at 275, 311, 344, 390, 440.[18]

Mr.
Adams stayed in the hospital for four days. Tr. 77–78. Ultimately, he learned
he broke his C1 vertebra, fractured his skull, and tore “a bunch of stuff” in
his knee. Id. at 43, 79, 292, 310, 362, 390, 440. He had a plate inserted
in his head, wore a cervical collar for six weeks, and had surgery on his knee.
Id. He was not able to return to work until March 2021. Id. at
43–44. He testified that several of his coworkers expressed they did not know
how he survived the incident. Id. at 44–45.

Mr.
Madrigal, an MSHA inspector, visited the mine the next morning, August 26,
2020, after hearing about the incident from miners at a different mine. Tr.
114–15. He questioned Mr. Cooper about the incident upon seeing the stretcher
outside of his office. Id. at 118, 312. Mr. Madrigal then went
underground with Darrell Burr and Jason Layton, the engineering manager. Id.
at 313, 401. He did not issue a Section 103(k) order (“K-Order”), but he
informed Daniel Lyons, the citation-issuing inspector, that the rib rolled on a
person and caused an injury. Id. at 127, 130. Mr. Cooper submitted a
7000-1 [non-“Immediately Reportable”] form to report the incident following Mr.
Madrigal’s visit. Id. at 315, 330; Ex. JX-5.

Mr.
Lyons visited the mine on August 27, 2020, with Kendell Whitman, the MSHA
assistant district manager for District 9. Tr. 115. They did not go underground
to inspect the area—choosing only to interview miners—but noted Respondent had
mined past the area where the rib had collapsed. Id. at 116, 127, 131. Mr.
Lyons issued the citations after the interviews. Id. at 116.[19]

John
Lewis, an MSHA electrical, roof control and ground control supervisor, visited
the mine with Mr. Whitman on August 27 and traveled underground to inspect. Tr.
166–67. He testified that the pillars were “not yielding like they should,”
claiming they were too big. Id. at 167–70.[20] Neither Mr. Lyons nor Mr. Lewis
issued a K-Order.

IV. ORDER NO. 8541891

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This
order was issued by Inspector Lyons on September 10, 2020. Ex. GX-2, DOL 0037. He
assessed gravity as “occurred,” “permanently disabling,” “S&S,” and one person
affected. Id. He assessed negligence as “high,” and found that the
violation was a result of unwarrantable failure. Id. The description
reads:

A serious injury accident occurred August 25th 2020, on the 8 Right Longwall located at the head gate along the stage loader when a violent bounce caused the rib to blow out, striking and covering up a miner, with the coal that was blown off the rib of the yield pillar. No standing support was installed in the area prior to the bounce. He received serious injuries to his head and neck, including a concussion by the blunt force trauma received to his head. Also receiving [sic] an injury to his lower extremity. The roof, face, and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to fall of ribs and coal or rock out bursts.

During the accident investigation it was determined that an additional geological event or a bounce occurred on the 20th of August. This event was recorded on the USGS as a 1.6 on the rector [sic] scale as an earthquake. The resulting event buried the 8 bay controller with coal, on the 8 Right Longwall section. Production on the 8 Right MMU was interrupted for approximately 1 and 1/2 shifts, to clean up the blown out material.

The operator engaged in aggravated conduct constituting more than ordinary negligence, by not protecting the persons by controlling the ribs in the areas where persons work or travel. This violation is an unwarrantable failure to comply with a mandatory standard.

Id. DOL 0037–38.

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A.
Violation

The
cited provision states, “The roof, face and ribs of areas where persons work or
travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.” 30
C.F.R. § 75.202(a) (2023). The Secretary must demonstrate “(1) that the roof
fall occurred in an area where persons work or travel and (2) that the roof was
not supported to protect persons from hazards related to falls.” Jim Walter
Res., Inc. (JWR), 37 FMSHRC 493, 495 (Mar. 2015); see also S.
Post-Hr’g Br. 4 (Aug. 5, 2022) (“S. Br.”).

Respondent
asserts that section 75.202(a) is an objective, performance-based standard. See
Resp’t Posthr’g Br. 39–40 (Aug. 5, 2022) (“Resp’t Br.”) (citing Harlan
Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998); Canon Coal Co., 9
FMSHRC 667 (Apr. 1987); JWR, 30 FMSHRC 872, 879 (Aug. 2008) (ALJ)). But
while the reasonably prudent person standard for evaluating alleged violations
of this provision may still be in place, it only applies now to situations in
which there has not been a roof fall resulting in an injury to a miner. See
JWR, 37 FMSHRC at 496 (“The roof fall that pinned [miner] under a piece of
rock, resulting in his death, amply demonstrates that the roof was not
supported in a manner to protect him from hazards relate to falls.”).

The
Commission in JWR declined to follow Canon Coal Co. Id. at
496 n7; see also id. at 498 (Comm’r Cohen, concurring) (stating that the
decision effectively overruled Canon Coal Co., but that it does not
affect all subsequent Commission decisions relying on it where, like Harlan
Cumberland Coal Co., a roof fall had not actually occurred). The ALJ decisions
cited by Respondent were all published before JWR.

Here, a rib
burst in fact occurred and a miner was injured. Tr. 35, 326; S. Br. 3; Resp’t
Br. 1. I therefore find JWR controlling and hold that such occurrence
demonstrated that the roof was not supported in a manner to protect miners from
associated hazards. Mr. Adams was working in the area at the time of the burst
and his resulting injury. Under JWR, and the strict liability approach
governing Mine Act violations, the Secretary successfully demonstrated a
violation.

B. Gravity

** 1. Likelihood**

The hazard—inadequately supported rib material falling and contacting a miner—in fact occurred. I therefore affirm the likelihood determination.

** 2. Severity**

The likelihood
contemplated is that of the expected resulting injury. The severity evaluation
assumes the occurrence of the hazard. See Consolidation Coal Co., 18
FMSHRC 1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on
“the reasonable likelihood of serious injury,” with gravity inquiry, which
focuses on “the effect of the hazard if it occurs”) (emphasis added).

The Secretary
asserts the severity of the contemplated injury is permanently disabling. There
is sufficient evidence, acknowledged by Respondent, that Mr. Adams suffered a
fractured skull, broken vertebra, and damage to his knee. Tr. 43, 79, 292, 310,
362, 390, 440; S. Br. 6–7; Resp’t Br. 6. I find that such injuries are
reasonably likely to result in total or partial loss of use of any member or
function of the body and therefore affirm the severity as characterized by the
inspector.[21]

** 3. Number
of Persons Affected**

The inspector assessed that one miner would be affected by the hazard. I agree that one miner was likely to be, and in fact was, injured by a roof fall. I thus affirm the inspector’s enumeration of persons who would likely be affected.

4. S&S

---

I affirm the S&S designation for the following reasons.

a. Step 1: The violation
has been established.

The
occurrence of an injury-causing rib burst demonstrates a failure to adequately
protect miners working in the area from hazards related to rib bursts. This is
sufficient to constitute an underlying violation of a mandatory safety standard
for the purposes of Mathies Step 1.

b. Step 2: The violation
was reasonably likely to result in the discrete safety hazard against which the
regulation is directed—falling material striking a miner.

Mathies Step 2 is a two-part process: (1)
determine the specific hazard the standard is aimed at preventing; and (2)
determine whether a reasonable likelihood exists that the hazard against which
the mandatory standard is directed will occur. Newtown Energy, Inc., 38
FMSHRC at 1868. This finding must be based on “the particular facts surrounding
the violation.” Northshore Mining Co., 38 FMSHRC 753, 757 (Apr. 2016).

The standard requires that ribs be supported or controlled to protect miners working there from hazards related to bursts. The hazard the standard aims to prevent is falling material striking a miner. The issue is therefore whether a reasonable likelihood exists that rib material would strike a miner.

Here, a rib burst occurred, and Mr. Adams was driven into the 8 Bay and covered in coal, requiring approximately 30 minutes to uncover him. The fact of occurrence is sufficient to find that the violation was reasonably likely to cause the occurrence of the contemplated hazard.

c. Step 3: The falling
material striking a miner was reasonably likely to cause an injury—e.g., fractured
skull and vertebra, and knee injury.

---

Mathies Step 3 asks whether the hazard,
not the violation itself, is reasonably likely to cause an injury. Musser
Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the
likelihood of injury, judges must assume the occurrence of the hazard. See
Newtown Energy, Inc., 38 FMSHRC at 2037.

---

Both
parties acknowledged that Mr. Adams sustained a skull fracture, vertebral
fracture, and knee damage. See Section IV.B.2., supra. That the
occurrence of the contemplated hazard resulted in these injuries is sufficient
to find the hazard was reasonably likely to cause an injury.

d. Step 4: It is reasonably
likely that such an injury would be of a reasonably serious nature.

An
inspector’s conclusion that a possible injury is of a reasonably serious nature
has been held sufficient for Mathies Step 4. See Consol Pa. Coal Co.,
43 FMSHRC at 149 (finding it sufficient that the inspector characterized the
potential injury as “serious” and noted potential injuries). The Commission
also does not require a specific type of injury for it to be considered
serious. See S&S Dredging Co., 35 FMSHRC 1979, 1981–82 (July 2013).

Here,
Inspector Lyons testified that he thought the injury was reportable—i.e., it
had a reasonable potential to cause death. Tr. 150–51. There was also, however,
particularly compelling testimony from Mr. Anderson that he “could see [Mr.
Adams’] skull,” id. at 93, and that he told another miner “[i]t didn’t
look good,” id. at 99. I also credit Mr. Adams’ own testimony about the
seriousness of his injuries. Id. at 43.

Taken together with the circumstances of the accident, the care and treatment required, and the description of the resulting injuries, I find that the injury resulting from the hazard was reasonably likely to be of a reasonably serious nature.

C. Negligence

---

I find that the negligence was improperly characterized by the inspector as “high.” Those charged with ensuring the rib is properly supported are familiar with the mining industry, the relevant facts, and the protective purpose of the provision. While a reasonably prudent person in the position of the mine’s management should have recognized that more effort was needed to protect miners from a rib burst in this area, there was mitigation. I therefore assess negligence as “moderate.”

The
Commission has declined to disturb a moderate negligence finding where a judge
found that roof problems were obvious at the time of citation, and credible
testimony demonstrated that an exam was completed without noticing the
existence of the problem. See Hubb Corp., 22 FMSHRC 606, 614 (May 2000)
(vacating the penalty assessments only for judge’s failure to adequately
address all section 110(i) criteria); 20 FMSHRC 615, 621–22 (June 1998). The
Commission has similarly declined to disturb a high negligence finding where
the judge found: (1) the conditions were obvious, extensive, and had existed
for “quite some time;” the roof fall had potentially fatal consequences to
miners; and the operator had made no effort to correct the conditions. Hidden
Splendor Res., Inc., 36 FMSHRC 3099, 3103, 3104 (Dec. 2014).

The
Secretary asserts that Respondent’s actions after the August 20 incident
suggested an “aggravated lack of care.” S. Br. 7 (citing Ky. Fuel Corp.,
40 FMSHRC 28, 31 (Feb. 2018) (quoting Brody Mining, LLC, 37 FMSHRC 1687,
1703 (Aug. 2015))). I disagree. Kentucky Fuel Corp. involved a failure
to block machinery. 40 FMSHRC at 28. The following findings were found to be
substantial evidence in support of high negligence: “materials needed to
properly block the vehicle against motion were not available at the mine site,
mine personnel had not been adequately trained in blocking techniques, and the
truck’s brake system was not adequately maintained.” Id. at 32.

In
Brody Mining, LLC, the Commission reversed a judge’s negligence
reduction to moderate because it relied on a single mitigating circumstance,
but that circumstance—lack of methane at the time—was not relevant to
negligence. 37 FMSHRC at 1703. Here, mitigating circumstances relevant to rib
bursts were present, and materials and action were not entirely lacking, in
contrast to Kentucky Fuel Corp.

Respondent
did not address negligence directly, but it noted in its unwarrantable failure
analysis that a similar [vacated] citation for a roof control plan violation
was designated “moderate.” Resp’t Br. 44.[22] Respondent argued that it planned
and maintained adequate pillar design, conducted rib bolting and meshed the
ribs, and installed additional supports between August 20 and the present
incident.

Inspector
Lyons testified that he assessed the violation as high negligence because there
was a known geological event five days earlier in a nearby location, and
Respondent “did nothing to control the rib.” Tr. 120.[23] I disagree that Respondent did
nothing, but the Secretary demonstrated a lack of adequate mitigation.

Mr.
Lewis testified that he noticed that the pillars in the area were not yielding as
they should. Tr. 167–70. Respondent produced Jason Layton, the operator’s
engineering manager, to testify that the same-sized pillars were approved by
MSHA for a new district. Id. at 405.[24] He claimed there was no indication
that a pillar would fail on August 25,

Mr.
Layton responded, “I guess I don’t recall that that came to my attention. It
could have.” Id. I credit Mr. Lewis’ evaluation and find that Mr. Layton
did know, or should have known, about the burst five days earlier on the nearby
rib, and that should have been an indication of the area’s inadequacy.

Regarding mesh and rock props in the violative area, there is evidence that such mitigation existed, but there is also evidence that Respondent knew it was insufficient. Mr. Adams, and the Secretary in her brief, claimed that Respondent failed to take additional measures after August 20. Tr. 46; S. Br. 7.

This,
however, is not supported even by Mr. Adams’ testimony. Though he claimed
Respondent could have done more, he hedged and stated he did “not think any or
it [rib mesh and timbers or rib jacks] was done.” Tr. 47. He then stated on
cross-examination that there was mesh, but only on the top part, and that some
was hanging. Id. at 54.

Mr.
Allred testified that there was mesh, though some had come down, and two out of
three props remained in place. Tr. 271–72.[25] This was confirmed by Mr. Gordon,
who testified that he went underground to check out the area and found one of
the props had been dislodged by the rib burst.

I do not find the violation here to be the result of the operator’s high negligence because, though the condition had potentially fatal consequences, it was not necessarily obvious, the operator was only on notice of possible hazard for five days, and the operator had made efforts to mitigate hazardous conditions in the area. This was nevertheless a significant breach of the duty of care, given the extreme danger posed by the hazard.

D. Unwarrantable Failure

I find that this violation was not the result of the operator’s unwarrantable failure to comply with a mandatory standard. I have already found that the cited negligence was overestimated, so Respondent did not display more than ordinary negligence in its violation here. The violation posed a high degree of danger, as demonstrated by the incident and Mr. Adams’ injuries, but the Secretary has not sufficiently shown that Respondent’s abatement efforts were lacking to an aggravated degree—a factor that I consider paramount here.

Respondent
had knowledge of a possible hazard because of the rib burst that occurred
nearby five days earlier. This, however, is not necessarily knowledge of the
violative condition of the area at issue. The Secretary asserts the violative
condition was obvious, specifically citing Mr. Lewis’ testimony that the
pillars were noticeably too big to yield and the third-party engineering
reports. S. Br. 9. The reports, however, were sought after the incident at
issue, and are a matter of some dispute. See supra notes 20 & 24.

I credit Mr. Lewis’ testimony and conclude that there was mitigation, though inadequate. This does not necessarily mean that the condition was obvious to Respondent; Mr. Lewis did not testify that he told Respondent about this inadequacy prior to the incident.

The
violative condition likely existed for the duration of mining in the area, but
knowledge of the violation cannot be attributed to Respondent until the August
20 incident. The Secretary made no argument specifically to the duration other
than to state that Respondent had been aware of the condition since that time. See
S. Br. 8–9. The extent of the violative condition is unknown. However, there
are sufficient facts to support an inference that it extends to the rib at
issue, the nearby rib that burst on August 20, and any surrounding areas where
Respondent found it necessary to install additional mitigation.

The
operator had been placed on notice by the August 20 incident that greater
efforts were necessary for compliance.[26] The Secretary, however, did not
demonstrate that the operator’s efforts, while inadequate, were the result of
an aggravated lack of care.

I
agree with Respondent that the Secretary and her witnesses erroneously claim
that the operator did nothing. Resp’t Br. 45. While inadequate to prevent a rib
burst and sufficient for a finding of violation, Respondent installed
additional mitigation to prevent a rib burst, or at least limit the possible
severity. See Section IV.C., supra.

E. Penalty

Respondent
has been cited seven times in the last two years at this mine for violation of
this regulation. Ex. GX-2, DOL 0038; Ex. GX-3 [MSHA Assessed Violation History
Report]. I find that the Secretary has properly considered Respondent’s
violation history in the calculation. I accept that the Secretary has properly
evaluated the size of the mine. The parties have stipulated that payment of
this penalty will not affect the Respondent’s ability to continue in business,
and my penalty assessment would not support such a conclusion. See
Stips. ¶ 7.

I have affirmed the reasoning underlying the Secretary’s gravity assessment, but the proposed penalty of $74,700.00 was based, in part, on the negligence and unwarrantable failure determinations. I have found that negligence was overestimated, and an unwarrantable failure determination is not supported. Further, Respondent made efforts before the incident at issue, and following the incident [engineering reports] to achieve compliance and better safety.

On the other hand, the history of seven previous violations within the relevant reporting period, including a previous incident in a nearby pillar only five days earlier, and the high degree of danger posed by the hazard, should have prompted a more thoughtful consideration of the circumstances and the potential for the cited area to collapse. I therefore assess a penalty of $25,000.00.

V. ORDER NO. 8541892

This order was issued by Inspector Lyons on September
10, 2020. Ex. GX-1. He assessed gravity as “occurred,” “permanently disabling,”
“S&S,” and one person affected. Id. He assessed negligence as
“high,” and found that the violation was a result of unwarrantable failure. Id.
The description reads:

The mine operator failed to report an Immediately Reportable Accident which occurred at approximately 17:00 hours on August 25, 2020. The mine conditions present on the Longwall headgate in the 8 Right section created such an unsafe condition that a miner suffered multiple, severe injuries that have a reasonable potential to cause death. The blunt force trauma that created these injuries "concussion, upper body blunt force trauma", [sic] was caused by a violent bounce which blew a rib out onto the miner while he was trouble shooting the face conveyor. Immediate reporting is necessary to address unsafe or potentially life threatening conditions and practices at a mine. The mine operator has had two injuries on the Longwall face in the last 6 months, six in the last two years. This violation is an unwarrantable failure to comply with a mandatory standard. The operator engaged in aggravated conducted constituting more than ordinary negligence by not reporting the accident that occurred on August 25, 2020 that resulted in life threating injuries to a Miner.

Id.

A.
Violation

The
cited provision states, “The 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.” 30 C.F.R. §
50.10(b). The Secretary asserts this incident caused at least reasonable doubt
which should have favored notification, and that Respondent myopically focuses
on assessment of whether Mr. Adams’ injuries were life threatening. See
S. Br. 12 (citing Signal Peak Energy, LLC, 37 FMSHRC 470, 474 (Mar.
2015)).

Respondent
cites Signal Peak to assert that the inquiry is whether a reasonable
person, based on readily available information, thought the injury was life
threatening. Resp’t Br. 11–13 (citing 37 FMSHRC at 474; Ideal Cement Co.,
12 FMSHRC 2409, 2415 (Nov. 1990)). It relies heavily on its witnesses’
testimony that nobody at the mine thought Mr. Adams’ injuries were life
threatening or told those to whom they reported that they were. I find that
“life-threatening injury” is not the standard, and that this incident should
have been reported to MSHA. For the following reasons, I affirm the violation.

1. Standards

a. Whether the injury is “life
threatening” is not the standard for evaluating whether an incident is
reportable.

Respondent
states that “‘life threatening’ is commonly used as a synonym for an injury
that has a ‘reasonable potential to cause death,’” claiming that the case turns
on whether the injury was life threatening. Resp’t Br. 12. This is not
supported by the cited authority. Signal Peak stressed evaluation of the
readily available nature of the accident rather than relying merely on the
injury itself:

[R]eadily 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.”

37 FMSHRC
at 476 (quoting Cougar Coal Co., 25 FMSHRC 513, 520–21 (Sept. 2003)).

The
page cited by Respondent only refers to the language in stating the parties’
contentions regarding the proper evaluation of “reasonable potential to
cause death”: (1) the judge’s statement that it means a “not far-fetched”
possibility [of death],” and (2) respondent’s statement that it is “synonymous
with ‘life-threatening.’” Id. at 474. Following this description, the
Commission concluded that the injuries there had a reasonable potential to
cause death and declined to further define the term. Id.

Further
discussion was provided, however. The Commission noted that the judge rejected
the operator’s argument that the injury must qualify as life threatening. Id.
at 474 n.8.

The
Commission neither agreed nor disagreed with this finding; it simply
acknowledged that Commissioner Cohen agreed with that distinction. Id. The
Commission then made two statements demonstrating it agreed with the judge that
reasonable potential to cause death is not synonymous with life threatening.

First,
it stated, “The Judge correctly discerned that the reporting requirement . . .
contemplates a subjective immediate evaluation governed by the concern for the
‘possible,’ not an objective clinical examination . . . .” Id. Next, it
continued, “The Judge’s analysis is consistent with the Commission’s decision
in Cougar Coal Co. (citation omitted), in which we stated that ‘the
decision to call MSHA cannot be made upon the basis of clinical or
hypertechnical opinions as to the miner’s chance of survival.’” Id. These
demonstrate that the judge’s analysis based on a “not far-fetched”
possibility—not respondent’s contention that the requirement is synonymous with
“life-threatening”—is consistent with Commission precedent.

The
other references to “life-threatening” are in its discussion of reckless
disregard and in Commissioner Althen’s dissent regarding penalty assessment. The
majority summarized the judge’s findings, noting that “the doctor . . .
believed ‘absolutely’ that Stewart’s injuries were life-threatening.” Id.
at 482. This was one of twelve considerations in support of the judge’s finding
of reckless disregard.

But
a doctor’s assessment of something as “life-threatening” is irrelevant to the initial
determination. See id. at 477 (citing Consolidation Coal Co., 11
FMSHRC 1935, 1936–38 (Oct. 1989)) (“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.”).

Commissioner
Althen asserted that the judge created a new interpretation of reasonable
potential to cause death, arguing that MSHA and other Commission Judges have
equated “reasonable potential to cause death” with “life threatening,” and that
such interpretation was supported by the final rule’s preamble. Id. at
491 n.6, 492 (Althen, Comm’r, dissenting). “Life threatening” appears, relevantly,
twice in the “Section 50.10 Immediate Notification” portion of the final rule.

First,
the rule states, “Timely reporting can be crucial in emergency, life-threatening
situations to activate effective emergency response and rescue.” Emergency
Mine Evacuation, 71 Fed. Reg. 71,430, 71,435 (Dec. 8, 2006) (emphasis
added). Next, it states:

Based on MSHA’s experience under
the ETS, “within 15 minutes” provides adequate time for operators to notify
MSHA with sufficient information. For example, the mine operator often knows
the general character of an event, such as an explosion or inundation, and can
report it under the 15-minute requirement before knowing whether a person
has been injured or killed or whether the event is life threatening.

Id. (emphasis added).

Prior
to this, the language is only used regarding SCSRs, “enabling miners to breathe
in the presence of hazardous or life-threatening contaminants,” id. at
71,431, and regarding emergency training and response to “assure that
underground coal miners can respond quickly and appropriate to life threatening
mine emergencies.” id. These two references to “life-threatening” are not
directly relevant to what is required for reporting, and to the extent they are
relevant, they clearly support reporting in the circumstances presented by this
case.

The Commission majority’s refusal to adopt a “life threatening” standard where a reasonable potential to cause death is at issue is consistent with the language and structure of the entire standard. Section 50.2(h) identifies twelve circumstances which must be immediately reported in accordance with Section 50.10. Only the first two, involving the death of an individual at the mine, or an injury to a miner with a reasonable potential to cause death, and the last, which is the death or bodily injury of a person not at the mine from an event at the mine, are based on physical injuries to persons. 30 C.F.R. §50.2(h)(1)–(12).

All
the other defined “accidents” are based on the event itself: an
inundation, roof fall, rock burst, instability, damage to a hoist, etc. The
inclusion of all these conditions highlights the common element for all twelve,
i.e., the agency’s need to determine what happened, and why, in order to
protect miners from being exposed to similar hazards.

The
rule therefore first requires immediate reporting to ensure an effective MSHA
response, including inspection to ensure other miners are not exposed to the same
hazard, see Section V.B.4.b., infra. Next, the rule demonstrates
that an operator can (and should) report an event—meaning it has a reasonable
potential to cause death—based on the general character of the event, without
being able to fully evaluate a resulting injury during the reporting window.

This
is wholly consonant with the Commission’s holding in Cougar Coal, supra,
against waiting on medical confirmation that an injury is life threatening
before reporting. Therefore, even if the support provided for Respondent’s
contention was not in the dissenting opinion, that argument would yet be unpersuasive.

The
ALJ cases cited by Commissioner Althen are similarly unsupportive of his explicit
contention that the two phrases should be equated. The judge in Vulcan
Construction Materials, L.P. did not require a “life-threatening” injury. The
decision cited the same page of the final rule quoted above, regarding SCSRs
and emergency training to claim that the notification requirement “allows MSHA
to address unsafe or potentially life-threatening conditions . . . when a quick
response could make a difference.” 35 FMSHRC 2868, 2879 (Aug. 2013) (ALJ). The
case involved a miner found after having a heart attack.

The
next mention of “life threatening” in Vulcan addressed the Commission’s Cougar
Coal Co. decision, but the judge acknowledged the Cougar Coal
judge’s error in requiring proof of life-threatening injuries from medical
records. Id. at 2884.

Finally,
in response to the operator’s argument that it would have called an ambulance
if it thought the injury was life threatening, the judge in Vulcan again
turned to Cougar Coal to state:

This Court recognizes that the
ultimate cause of an incident does not control whether it must be immediately
reported as an accident. But the apparent cause, or lack thereof, bears heavily
on whether a mine operator knew or should have known that an injury with a
reasonable potential to cause death has occurred. See Cougar Coal Co.,
25 FMSHRC at 520 (noting that the nature of the events surrounding the injury,
as well as the actual injury sustained, must be considered when determining
whether the accident had a reasonable potential to cause death).

Id. at 2887.

The
judge in Vulcan therefore held that the nature of the accident is highly
relevant, and his decision is consistent with Commission precedent. See
Cougar Coal; see also Signal Peak, 37 FMSHRC at 476 (noting that the nature
of the events surrounding an injury, as well as the injury sustained, must be
considered when determining whether the accident had a reasonable potential to
cause death.).

The
judge in Cemex, Inc. did find that the Secretary failed to establish the
violation because the injuries—burns to hands—were not life threatening. 35
FMSHRC 1355, 1365 (May 2013) (ALJ). But the context and the underlying
authority are crucial. The judge properly distinguished the minor injuries at
issue from those in Cougar Coal, where after suffering a severe electrical
shock, the miner fell from a significant height and suffered a head injury.

However,
Cougar Coal did not rely on the injury being “life threatening”—the
term was not even used. The judge therefore incorrectly injected the term
“life threatening” from Cougar Coal’s description of significant causes
and injuries sufficient for notification, depriving Respondent of any relevant
support for its position here.

Respondent
also cites Walker Stone Co., 23 FMSHRC 180 (Feb. 2011) (ALJ), Consolidation
Coal Co., 9 FMSHRC 1950, (Nov. 1987) (ALJ), and Climax Molybdenum, 2
FMSHRC 1967, (July 1980), but the ALJ holdings in these cases, in
addition to being non-binding, all occurred before the Commission’s decisions
rejecting a “life-threatening” standard in Signal Peak and Cougar
Coal.

Respondent
thus disregards the actual, and inconvenient, state of the law, which requires
the decision to report to be based on information available in the immediate
aftermath of the event. See Signal Peak, 37 FMSHRC at 476 (quoting Cougar
Coal, 25 FMSHRC at 520–21) (“[P]ermitting operators to wait for a medical
or clinical opinion would ‘frustrate the immediate reporting of near fatal
accidents.’”); Consol Pa. Coal Co., LLC, v. FMSHRC, 941 F.3d 95, 111 (3d
Cir. 2019) (“The focus of the notification requirement must be on the
information available at the time of injury, so post-hoc medical evidence is
less probative.”).

While
Respondent’s reliance on the Third Circuit’s approximation of the standard’s
language with “life threatening” in Consol Coal, 941 F.3d at 106 n.13, is
not facially defective in the same way as the inapt ALJ decisions, it is
nonetheless deficient, because it misconstrues the Commission’s holding in Signal
Peak, and glosses over the jurisprudential reasoning and record facts in
that case.

The
Third Circuit’s decision, in noting the Commission’s use of the term “life
threatening,” first observed (correctly) that the Commission “‘has not found it
necessary to’” define “reasonable potential to cause death.” Id. (citing
Signal Peak, 37 FMSHRC at 474). The Court then characterized the
Commission as having found “that it was enough to say the accident was ‘life-threatening[,]’
because, in that case, the miner’s ‘injuries clearly [fell] within the realm
of a reasonable potential to cause death[.]’” Id. (quoting 37 FMSHRC
at 474 (citation and internal quotation marks omitted)) (emphasis added).

The Court’s analysis improperly implies a relationship that does not exist between the Commission’s clear reliance on the actual text of the standard and the term “life threatening:”

Therefore, the Commission both here
and in Signal Peak concluded that the injuries at issue had a
reasonable potential to cause death under a “life threatening” standard. We
follow the Commission’s lead in that regard and use “life threatening” as a
working interpretation of “reasonable potential to cause death.

Id. (emphasis added).[27]

While
the term “life threatening” was noted frequently in the factual background of Signal
Peak, the Commission there, as explained above, did not use it as the basis
for its conclusion that respondent failed to notify. In the Commission decision
reviewed by the Third Circuit, the phrase “life threatening” was only used
once, in the description of judge’s findings. See Consol Pa. Coal Co.,
40 FMSHRC 998, 1001, 1010 (Aug. 2018) (affirming the judge’s decision wherein
he concluded there was justifiable concern about possible internal bleeding,
“which could be life threatening”).

The
Commission, therefore, did not require the injury to be life threatening
in either case. It did not adopt the respondent’s asserted interpretation in Signal
Peak, and it did not specifically analyze the violation under that standard
in Consol. As noted by the Third Circuit, it was simply “enough to say
the accident was ‘life-threatening.’” This is because, while the injuries need
not be life threatening to require reporting, life-threatening injuries are
certainly within the ambit of those that do require it.

b. An operator must err on
the side of reporting where the known circumstances of the incident suggest a
reasonable potential to cause the death of a miner involved—though the extent
of injury may evade immediate determination.

To
be held accountable for failing to report an accident under the cited standard,
Respondent must have had knowledge, or have had reason to know, of event and
injury circumstances that had a reasonable potential to cause death. This
knowledge, and Respondent’s determination of the severity and requirement to
notify MSHA, must be made based on the totality of the circumstances and focus
on the information available during the reporting window, rather than on actual
medical evidence. See Consol, 40 FMSHRC at 109, 111, aff’d, 941
F.3d 95 (3d Cir. 2019).

Further,
the duty to notify must be interpreted from the perspective of a reasonable
person in the circumstances, familiar with the mining industry and the
protective purpose of the standard. Id. at 107; Ideal Cement Co.,
12 FMSHRC 2409, 2415 (Nov. 1990). Finally, and most critically here, any
reasonable doubt must be resolved in favor of notification. Consol, 40
FMSHRC at 107. Reasonable doubt is based on the facts available during the
reporting window. If the operator is unable to conclusively determine, within
15 minutes, that the accident does not involve an injury that has a reasonable
potential to cause death, then even if the operator reasonably doubts the
potential for fatal injury, it must notify MSHA.

It is possible to learn something—but not everything—from incidents where the Commission has found injuries to have reasonable potential to cause death based on the totality of the circumstances:

·
A miner blasted
50 to 80 feet through the air with a back protrusion, severe pain, and
difficulty breathing or moving. Signal Peak, 37 FMSHRC at 471.

·
A miner crusted
between multi-ton pieces of equipment, unable to move his legs [or feel one of
them], and a distended stomach. Consol, 40 FMSHRC at 999.

·
A miner suffering
electric shock before falling 18 feet and hitting his head, requiring CPR. Cougar
Coal Co., 25 FMSHRC at 515.

·
A miner pulled
through a roller—7-inch space—with a “misshaped” head, that required months of
surgeries. Mainline Rock & Ballast, Inc., 693 F.3d 1181, 1183, 1189
(10th Cir. 2012).

·
And finally, a
miner suffering an obvious hip injury [noting the likely attendant
complications] from a roof fall. Webster Cty. Coal, LLC, 39 FMSHRC 1131,
1136, 1137 (May 2017) (ALJ).

In
each case, the Commission, court, or ALJ held that readily available
information regarding the mechanisms of injury did not allow for any reasonable
doubt as to whether the incident had a reasonable potential to cause death. But
the severity of the injuries cited has been misinterpreted by Respondent as requiring
that injuries be at least this severe, and that reporting is not
required if the operator believes a miner’s injuries are somehow
distinguishable from the particular examples found in Commission case law.

There
are several problems with this approach. First, the language of the standard is
clearer than Respondent suggests. The primary term governing the requirement to
“immediately contact MSHA at once without delay.” The standard then goes
on to reinforce this by imposing a duty to report “within 15 minutes . . . once
the operator knows or should know that an accident has occurred.” 30 C.F.R. §
50.10(b).

The
reporting policy is not susceptible to a case-by-case approach at the scene of
a serious incident, where a decision must be made “immediately,” or within 15
minutes. Recognizing this, the Commission has not endorsed this approach. Rather,
the Commission has determined that operators “must resolve any reasonable doubt
in favor of notification.” Consol, 40 FMSHRC at 1002 (quoting Signal
Peak, 37 FMSHRC at 477). The Commission, and the Third Circuit in Consol,
noted the impropriety of waiting for a more definitive medical analysis of a
miner’s condition. See 941 F.3d at 111; 40 FMSHRC at 1004 (holding that
“[t]he notification requirement does not, and cannot, rest upon a post-medical
treatment analysis,” and that “[t]he decision whether to call must be made immediately
and often by persons with little medical expertise”).

This determination, which controls my decision, is consistent with the purpose of the standard. That purpose is not to enable care for the injured miner in circumstances such as this—it is to ensure that the agency is aware of the incident so that it may conduct its own investigation and ensure that other miners are not in danger or will not be threatened in the future by the practices or conditions that led to the reportable incident.

I
emphasize that 15 minutes is the absolute limit of the time available for an
operator to make a reporting determination. MSHA used three different terms, or
phrases, to stress the requirement to speedily investigate and make the
determination before the 15 minutes runs: “immediately,” “at once,” and
“without delay.” I would first note that regulations should be read with the
understanding that MSHA intended each term to have a particular, nonsuperfluous
meaning.[28] Next, even if it was not
reasonable to read these other terms as having a separate and distinct meaning
from 15 minutes, I find that MSHA at least emphasized—three times in one
sentence—the limited inquiry a miner can make before reporting.

“Immediately”
means “[o]ccurring without delay; instant.” Immediate, Black’s Law Dictionary (11th ed. 2019).
By adding “at once,” the regulations underscore the need for immediate
reporting and suggest that the requirement to report arises and must be carried
out instantaneously with the recognition of the duty.

---

By adding “without delay,” the regulation utterly refutes the notion that the duty to report may extend beyond the absolute limit imposed by the final requirement of the rule. Thus, an operator may not continue to investigate, examine, or otherwise look for reasons not to report beyond the final limit imposed by Congress—15 minutes.

There may be circumstances where reporting within 15 minutes is not possible or may be inadvisable. A situation where a manager is the only miner available to provide first aid, away from any means of calling MSHA or directing others to do so, would obviously better serve the intent of the Act by taking measures to care for an injured miner. In such circumstances, the Secretary should use her prosecutorial discretion not to cite the operator.

Even
if the operator is cited because of the Act’s strict liability provision, a de
minimis penalty should be assessed. But the Commission may not substitute
its judgment for that of Congress, which spoke clearly in drafting this
provision.

I
find the failure to notify here especially troubling because the Commission has
held that reporting an accident is non-prejudicial. Any actions that the
operator takes that are inconsistent with the appropriate response to an
accident may not be cited if there was not, in fact, an accident. Black
Beauty Coal Co., 37 FMSHRC 687, 690 (April 2015). While there is
certain to be inconvenience and cost involved with notifying MSHA, this is a
policy decision that has been made by Congress to protect miners from dangerous
practices and conditions. See 30 U.S.C. § 813(j).

Finally,
it is worth noting that the final rule provided examples for when the
operator’s knowledge of the general character of an event should prompt
notification, including “an explosion or inundation.” See Section
IV.A.1.a., supra. MSHA also provided examples of reportable injuries:
“concussions, cases requiring cardio-pulmonary resuscitation (CPR), limb
amputations, major upper body blunt force trauma, and cases of intermittent or
extended unconsciousness.” 71 Fed. Reg. at 71,434.[29] The rule further says, “These
injuries can result from various

The agency has thus provided the public with notice of its expectations. As with the exemplars provided by Commission cases, one can learn something from the examples provided. But the list is not exhaustive. Even so, most concussions are not “life threatening,” and major upper-body blunt force trauma may or may not be. The problem is not merely the nature of the injuries, but the “indicative events” that produced them. As the Commission has held, these circumstances are crucial to the need to report an incident to MSHA as an accident, and they were not fully considered here.

2. Respondent was required
to notify MSHA about the incident because the known character of the injury-causing
event at the time it was first reported sufficiently demonstrated a reasonable
potential to cause death.

** a. Totality
of the Circumstances**

The
notification from which the 15-minute MSHA notification window began to run was
made to Mr. Allred at 5:08 p.m. See Signal Peak, 37 FMSHRC at 476 (“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.”).[30]

Though Respondent claims the event was not violent—a “rib roll,” rather than a “rib burst”—the record demonstrates that at least two, and possibly three, management personnel knew within 15 minutes that material fell from the rib and covered Mr. Adams. And though neither Mr. Allred nor Mr. Cooper knew at the time, the record demonstrates that it took approximately 30 minutes to remove Mr. Adams from the coal.

The
Secretary pointed to the severity of the injuries Mr. Adams suffered, as well
as the fact that the burst threw him into the 8 Bay, causing a serious head
wound. S. Br. 10; see also id. at 14 (emphasizing that Mr. Bonnanci knew
of a “pretty good gouge in his forehead”). She claimed what was known was that
a rib burst blew coal 3 feet deep into the 8 Bay, Mr. Adams was buried under
coal, had a 1.5-inch cut on his head from striking the 8 Bay, and was
complaining about back, neck, and leg pain. Id. at 15–16. She
acknowledged, however, that at the time of notification, Mr. Allred knew
that Mr. Adams was buried under coal to his neck, and he called Conspec to send
an EMT and get an ambulance as soon as he learned about the accident. Id.
(citing Tr. 262).

Regarding
Mr. Cooper, the Secretary stated that he was aware of the burst, that miners
had to dig Mr. Adams out, and that Mr. Adams was complaining about leg and neck
pain. Id. at 16 (citing Tr. 303–04, 323, 326). The record demonstrates
that knowledge of the head wound and neck and leg pain was not obtained until
Mr. Allred was at the incident site approximately 40 minutes later. Tr. 266–67.

Respondent similarly mostly focuses on the severity of injuries, based on information available after the 15-minute reporting window had lapsed—i.e., known by Messrs. Allred and Cooper, and reported to other individual liability respondents, after Mr. Allred arrived at the incident site and observed Mr. Adams. These included a knee injury, possible back and neck injuries, and head laceration. Resp’t Br. 14.

Respondent
relies heavily on the arguments that Mr. Adams was conscious and coherent,[31] and that nobody thought or stated
that his injuries were life threatening.

The
Commission has repeatedly rejected the assertion that because a miner is alert
after an accident, a reasonable person could conclude there was no potential
for death. Cougar Coal, 25 FMSHRC at 520; Signal Peak, 37 FMSHRC
at 476 (noting that while the miner presented some stable vital signs, all
vitals were not taken, thus evaluation was not exhaustive or conclusive and did
not establish that the miner's injuries posed no reasonable potential for
death); see also Consol 40 FMSHRC at 998-1010. Further,
“life-threatening” injury is not the standard, see Section IV.1.a., supra,
and knowledge of the injuries was not obtained until after the reporting window
had expired.

Respondent
correctly conceded that assessment of reasonable potential to cause death does
not require a medical determination. Resp’t Br. 13 (citing Signal Peak,
37 FMSHRC at 470). It then attempts, however, to use medical findings to argue
that the rib burst was not violent, and that Mr. Adams’ vitals upon evacuation
from the mine did not show that he had suffered injuries that in fact placed
him in grave peril. See id. at 17–19 (noting that hospital tests did not
show a violent impact because the head wound was a “surface fracture without
significant trauma to the brain,” and that the ambulance crew reported maximum
cognitive scores and fine vitals).

Respondent
cannot have it both ways, though. I agree with its original contention that it
cannot rely on, and should not have waited for, a medical determination to
decide whether the incident was reportable. My conclusion rests on the standard
under the law as it has in fact been developed. See Consol, 40 FMSHRC at
111; Signal Peak, 37 FMSHRC at 476 (quoting Cougar Coal, 25
FMSHRC at 520–21).

Based
on testimony from Messrs. Adams, Anderson, Allred, and Cooper, the only
information available to Respondent during the reporting window was that
material had fallen from the rib and covered Mr. Adams, and that he was
bleeding from a head wound.[32] This is sufficient for a
determination that the incident had the reasonable potential to cause death, based
on the totality of the circumstances then known, and Respondent should have
notified MSHA.[33]

I
find that a rib burst or roll that buries a miner and results in a head wound
is an event that has a reasonable potential to cause death. Immediately after
this incident, the mine focused appropriately on uncovering Mr. Adams. Doing so
took longer than the time afforded for reporting an accident. See 30 C.F.R.
§ 50.10 (requiring notification “immediately . . . at once without delay and
within 15 minutes” when it knows or should know that an accident has
occurred).[34]

Additionally,
the operator may have no information, even if the miner is conscious, about the
extent of the injuries, and whether they have a reasonable potential to cause
death. Respondent therefore should have erred on the side of reporting, see
Consol, 40 FMSHRC at 107, because there was, at best, reasonable doubt as
to whether Mr. Adams’ [unknown] injuries had a reasonable potential to cause
death.

Mr.
Adams’ head wound, while unnecessary to determine this incident was in fact
reportable, further demonstrated a reasonable potential to cause death.[35] Mr. Adams had a skull fracture diagnosed
at the hospital. Reacting miners at least knew he had a head laceration through
which they could “see his skull.”

That
information was not initially known to Messrs. Allred or Cooper (or Mr. Gordon,
though the record does not definitively demonstrate that he was notified within
the 15-minute window). But importantly, neither inquired into any of Mr.
Adam’s injuries.[36] An operator cannot escape its duty
to report by remaining uninformed of possible injuries.

I
also note that the extent of injury posed by closed-head trauma cannot be known
without expert medical diagnosis, but such injuries must be assumed to be extremely
serious until a medical evaluation may be obtained. See Solvay Chems., Inc.,
43 FMSHRC at 489–90. If the standard requires reporting if there is any reasonable
doubt—and it does—the potential and unknown health risks posed by a closed head
injury must compel reporting.

b. A reasonably prudent,
experienced miner would have known that such an incident had reasonable
potential to cause death, or would have at least had reasonable doubt as to
whether it did not.

As discussed above, such an incident—even with unknown injuries—has a reasonable potential to cause death. Respondent’s witnesses relied heavily on personal observation, or the lack of verbal reporting, that Mr. Adams’ injuries were “life threatening.” Some may have relied on personal experience, such as the manager who claimed, “I’ve been buried under coal myself.” Tr. 387 (testimony of Jake Wilson). This was incorrect. With full appreciation for Mr. Wilson’s grit, and the toughness and resiliency displayed on the job routinely by other miners, the Commission’s precedents require a more sober reflection about miner safety and the possible injuries attendant to the entrapment of miners by falling material and other such incidents.

It doesn’t matter whether Respondent inappropriately relied upon a “life-threatening injury” standard honestly or to minimize its required incident reporting. I need not make such a determination, as it is sufficient that a reasonably prudent, experienced miner should have known that a rib burst burying a miner has a reasonable potential to cause death, because such movements regularly have been the cause of fatal injuries to miners. Even if it relied on what it learned later, though, Respondent also would have been on such notice had it made proper inquiry into known or possible injuries.

At best, the operator would have had reasonable doubt as to whether the Mr. Adams’ injuries had a reasonable potential to cause death, as it could not conclusively determine they did not. First, there was insufficient inquiry into whether there was a reasonable potential to cause death until Mr. Allred observed Mr. Adams, spoke with Mr. Anderson, and reported to Mr. Cooper that he did not think Mr. Adams’ injuries were life threatening. All other reports of such potential were relayed to higher management or personally observed once Mr. Adams was evacuated from the mine—more than an hour after the incident.

Next,
there are “known unknowns” associated with rib bursts, burials, and head
injuries.[37] Miners worked to uncover Mr. Adams
for approximately 30 minutes. Mr. Bonnanci was aware of Mr. Adams’ head
laceration from contact with the 8 Bay during that time. The miners working to
uncover Mr. Adams, and those to whom the incident was reported, did not, and
could not, know about possible further injuries during the reporting period.

The facts available to Messrs. Allred and Cooper in the 15 minutes after notification would not enable a reasonable miner to conclusively determine that the accident that injured Mr. Adams, and his unknown injuries, did not have the reasonable potential to cause death. This is demonstrated by the fact that such conversations about whether the accident was reportable continued throughout the efforts to uncover Mr. Adams, his evacuation from the mine, his departure to the hospital, and even after hearing about the extent of his injuries assessed at the hospital.

Though
I have already found that the operator’s agents should have been more
inquisitive about the extent of the accident and Mr. Adams’ injuries, one might
argue that anybody who could have informed Mr. Allred further was
working—“feverishly,” no less—to uncover Mr. Adams. Such a defense is
inadequate for two reasons. First, the record demonstrates that Mr. Allred in
fact spoke to Charlie Wilson during his drive to the site. Second, this
reinforces the existence of reasonable doubt. It is doubtful that the
responsible person with authority to call MSHA will be at, or even near, an
accident site when it occurs. If every available person is engaged in trying to
save an injured miner, causing inability to obtain further information from
them, that is sufficient to demonstrate reasonable doubt that the injuries do
not have a reasonable potential to cause death. Respondent was therefore
required to err on the side of reporting—enabling MSHA response and inspection
to prevent others from being similarly hurt. See Signal Peak, 37 FMSHRC
at 477 (citing 71 Fed. Reg. at 71,431).

B. Gravity

** 1. Likelihood**

The hazard—inability of MSHA to respond or investigate—in fact occurred. MSHA was not informed until the next day, and the incident area had been mined past before an accident investigation was ordered. I therefore affirm the likelihood determination.

** 2. Severity**

The Secretary asserts the severity of the contemplated injury is permanently disabling. The severity here is that of an injury resulting from the contemplated hazard, i.e., a similar incident caused by MSHA’s inability to investigate and validate the safety of the violative area. I have already found that Mr. Adams’ injuries were appropriately designated as permanently disabling and had the reasonable potential to cause death. Any other miner affected by a similar incident would therefore be exposed to similar injuries. I therefore affirm the severity as characterized by the inspector.

** 3. Number
of Persons Affected**

The inspector assessed that one miner would be affected by the hazard. I find it reasonable that at least one miner was vulnerable to a similar hazard during continued mining before MSHA inspection. I thus affirm the assessment of persons likely to be affected.

4. S&S

---

I affirm the S&S designation for the following reasons.

a. Step 1: The violation
has been established.

I
have found that a failure to notify MSHA about an incident with a reasonable
potential to cause death occurred. See Section V.A.2., supra. This
is sufficient to constitute an underlying violation of a mandatory safety
standard for the purposes of Mathies Step 1.

b. Step 2: The violation
was reasonably likely to result in the discrete safety hazard against which the
regulation is directed—another similar occurrence due to MSHA’s inability to
promptly investigate.

The standard requires that operators notify MSHA within 15 minutes of an accident with the reasonable potential to cause death. An ambulance and life flight were on site when Mr. Adams was evacuated to the surface, so there is no contention that the failure to notify MSHA would have resulted in impairment of otherwise mobilized MSHA rescue efforts. But another purpose of reporting is to enable MSHA to investigate immediately. The Commission has held:

[The operator] 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 [the] 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.

Signal
Peak, 37 FMSHRC at
480 (emphasis added). The contemplated hazard here then is a similar rib fall
incident caused by lack of MSHA investigation and remedy.

The
Secretary correctly asserts the failure to report interfered with MSHA’s
ability to investigate. S. Br. 16. Respondent counters that the standard is not
what “could” occur, Resp’t Br. 26 (citing Wolf Run Mining Co., 32 FMSHRC
1669, 1677 (Dec. 2010)), thereby arguing that another similar accident is not
reasonably likely, id. at 27. Respondent incorrectly asserts that the
Secretary’s analysis is directed at the rib roll, rather than the failure to
report. Id. at 27–28.

The
analysis is focused on another rib incident at a nearby or similarly
inadequately supported area, during continued mining operations, due to lack of
MSHA investigation of the violative incident. There is sufficient evidence in
the record demonstrating that this hazard is reasonably likely. There was a
similar incident nearby five days prior. This incident occurred with additional
mitigation apparently added following the first incident.

Miners
worked in the area—even if only to inspect, clear the accident site, and
conduct further mitigation—between the accident and Mr. Madrigal’s visit. See
Tr. 347. It is therefore reasonably likely that the violation would cause
another similarly hazardous occurrence prior to an MSHA inspection. See
Signal Peak, 37 FMSHRC at 473, 481 (affirming a judge’s S&S finding
where a failure to report delayed MSHA involvement and exposed miners to
uncorrected conditions, a similar fall, and similar resulting injuries).

Respondent
claims MSHA had ample opportunity to inspect after being informed the next
morning, and that Messrs. Gordon, Wilson, and Roberts inspected and remedied
the conditions the previous night. Resp’t Br. 28. Neither contention allays the
hazard because MSHA was unable to inspect and propose a remedy, which is the
point of the provision, and the same operator installed mitigation after the
first incident that was clearly ineffective.[38]

c. Step 3: Lack of MSHA
investigation was reasonably likely to result in similar injury from falling rib
material.

The Secretary asserts that miners working in the area following the incident were exposed to dangers from an uncontrolled rib. S. Br. 16. Respondent, without specifically referencing Step 3, relies on the same contentions regarding its own inspection and mitigation to argue that further miners would not likely suffer similar injury from a similar event. Resp’t Br. 28.

Assuming
the hazard—a similar incident due to MSHA’s inability to promptly
investigate—occurs, a miner is reasonably likely to be injured by falling rib
material. I have already found that a fractured skull or vertebra are
reasonably likely to occur from a rib burst. See Section IV.B.4.c., supra.
Given that such injury did in fact occur, it is reasonably likely that the
failure to notify MSHA would result in a similar occurrence during continued
mining, and that another miner would suffer similar injuries to those of Mr.
Adams.[39]

---

d. Step 4: It is reasonably
likely that such an injury would be of a reasonably serious nature.

I
have found that the same injuries from falling rib material are reasonably
likely. I have already found such injuries to be of a reasonably serious
nature. See Section IV.B.4.d., supra. The resulting injuries from
this violation are therefore reasonably likely to be of a reasonably serious
nature.

C. Negligence

I find the negligence was properly characterized by the inspector as “high.” Management personnel in the position to stop work and notify MSHA are familiar with the mining industry, the relevant facts, and the protective purpose of the provision. This was evidenced by their consistent questioning and reporting regarding whether Mr. Adams’ injuries were life threatening. A reasonably prudent person in their position should have recognized that the incident had a reasonable potential to cause death and required MSHA notification.

The
Commission has affirmed a moderate negligence finding where an operator should
have known a reportable accident occurred, but the judge acknowledged that it
acted quickly and efficiently to help the miner and did eventually alert MSHA. Consol
Pa. Coal Co., 40 FMSHRC at 1001, 1010. The Commission has also found high
negligence, however, where an operator purportedly delayed notification because
of its focus on evacuating survivors. Wolf Run Mining Co., 35 FMSHRC
3512, 3518 (Dec. 2013). The record there demonstrated that the operator was
concerned about a shut-down, and it was also sufficient for high negligence
that nobody tried to contact MSHA at all, nor was there any real effort to
investigate the incident for more than an hour, after Respondent knew there had
been a rib burst that had buried a miner in coal. Id. at 3516, 3518.

In
the oft-cited Signal Peak decision, the Commission found reckless
disregard where the operator failed to take any steps to ensure the roof fall
was investigated, thereby placing miners at future risk. 37 FMSHRC at 481–82. It
held that the duty to report was obvious at multiple points in time. Id.
at 482. The Commission cited the significant damage and severe and obvious
injuries caused by the accident.

It
took one-and-a-half hours to transport the injured miner out of the mine in Signal
Peak, and he required a life flight. Id. The operator never
contacted MSHA and was concerned about resuming production. Id. In
resuming production, it changed conditions at the accident scene. It did
nothing to investigate and prevent recurrences. Id. MSHA found out about
the accident from a newspaper reporter days later. The operator filed a 7000-1
accident report one-and-a-half hours after the safety director spoke with MSHA
and was “anything but forthcoming.” Id.

The
Secretary claimed the injuries in this case were obvious, and management was uninquisitive.
S. Br. 17–18. It further asserted that Respondent prevented MSHA from
investigating, maintaining a high degree of danger to miners during continued
work. Id. Respondent emphasized that only knowledge of laceration, knee
injury, and possible back or neck injury was available. Resp’t Br. 24–25. It
also noted that Mr. Cooper filed the accident report the next morning. Id.
at 24.

I
have found that the duty to report was obvious from the time of notification—a
rib burst burying a miner in coal with unknown injuries. See Section
V.A.2., supra. I have not found that Respondent was more concerned with
resuming production. Though one might infer it from the failure to report both
the August 20 and Mr. Adams incidents, and continued work in the area without
an MSHA inspection, it is clear from the record that Respondent relied heavily
on whether there was an assessed life-threatening injury to evaluate
reportability.

Though
the head laceration, signifying some blunt force trauma, was obvious, Mr.
Adams’ injuries and the cause were not as severe as the circumstances in Signal
Peak. It took a significant time to evacuate Mr. Adams, both from under the
coal, and from the mine, and Respondent did not notify MSHA until an inspector
came and inquired about the incident.

Respondent
also changed conditions at the accident scene by continuing to clean, inspect,
and mitigate the area.[40] Operator managers investigated the
incident themselves and installed mitigation, but there was never an MSHA investigation
to assist in preventing recurrence. Finally, Mr. Cooper filed the report after
being questioned by Mr. Madrigal.

I agree that the operator did not exhibit reckless disregard because there has been no demonstration that Respondent did not report specifically because of concern for continued production and a desire to avoid MSHA enforcement. The circumstances are, however, more severe than those demonstrating moderate negligence. Respondent demonstrated a serious lack of reasonable care in failing to enable MSHA to investigate an obvious injury. The Secretary therefore demonstrated that this violation was the result of the operator’s high negligence.

D. Unwarrantable
Failure

The
Secretary argues that multiple managers knew of the incident and had sufficient
information about the laceration and neck, back, and leg pain to prompt
reporting. S. Br. 17. She claims the injuries were obvious, citing the deep
laceration, blood through the gauze, and obvious pain. Id. at 17–18. The
Secretary further asserted no management asked if the injuries were life
threatening,[41] and the failure to report
prevented MSHA investigation, creating significant danger for miners continuing
to work.

Respondent
asserts reporting violations do not fit readily with an unwarrantable failure
analysis. Resp’t Br. 23–24. It emphasizes that the time the violation existed
was until the next morning, and that it was not on notice that greater efforts
were required. Id. at 24. It described its abatement as describing the
injury to the inspector and field office supervisor and filing the 7000-1 form.
Id.

Respondent
claims there was no degree of danger because Mr. Madrigal investigated the
injury scene and others neglected attempts to inspect for days. Id. Finally,
it relies heavily on lack of operator knowledge, claiming direct observations
did “not indicate a danger of death” and that nobody reported “life-threatening”
injuries. Id.[42]

For the following reasons, I find the violation was the result of Respondent’s unwarrantable failure to comply with a mandatory standard.

1. Respondent should have
known of the existence of the violation because of the nature of the incident
and probable, yet unknown, injuries.

Both
parties are incorrect in their use of Mr. Adams’ determined injuries to claim
knowledge or lack thereof. Respondent should have known[43] of the violation—that it was
required to notify MSHA—within 15 minutes after the report to Mr. Allred
because of the nature of the incident and its inability to know the attendant
injuries. I have found that material falling from a rib and covering a miner
are sufficient for a reasonably prudent, experienced miner to assess that an
incident has a reasonable potential to cause death.

The existence of the skull fracture, vertebra fracture, and knee injury were not conclusively known until Mr. Adams’ treatment at the hospital. At best, the Secretary may appropriately point to the existence of Mr. Adams’ obvious head laceration to claim that blunt force trauma occurred, and immediate knowledge of that injury should be sufficient for notification.

I
have found that such a head injury is reportable because of unknown, but
probable, brain injury, and that Respondent was inexcusably uninquisitive about
Mr. Adams’ injuries between the first report and Mr. Allred’s observation. See
Section V.A.2.a., supra. Respondent’s knowledge is therefore an
aggravating factor in favor of unwarrantable failure.

** 2. The
violation was sufficiently obvious for the same reasons as above.**

Because Respondent should have known of the existence of the violation based on a rib burst’s reasonable potential to cause death, and emphasizing the immediately apparent head injury, I find that the violative condition was obvious. The obviousness of the condition is an aggravating factor in favor of an unwarrantable failure finding.

3. The violation posed a
high degree of danger because of the risk of injury to miners continuing to
work in the area from a similar incident.

As
with the S&S analysis, I find the danger associated with this reporting
violation is that of a similar rib burst and injury to miners continuing to
work in the area without MSHA investigation. See Section V.B.4.b., supra;
Signal Peak, 37 FMSHRC at 480. This element does not include duration,
only the degree of danger posed by any work conducted where the danger
continues due to MSHA’s inability to inspect. See Midwest Material Co.,
19 FMSHRC 30, 35 (Jan. 1997) (“The judge’s reliance on the relatively brief
duration of the violative conduct was misplaced, in view of the high degree of
danger posed by the hazardous condition and its obvious nature.”).

Respondent incorrectly conflates its argument for this element with that relating to the length of time the condition existed. The fact that Mr. Madrigal investigated the injury scene the next morning does not effectively challenge the degree of danger. At best, its statement that others neglected to inspect for days after learning of the incident could be construed as an MSHA acknowledgement that the danger posed was not high. I do not accept that, as I have already found that serious injury is reasonably likely to result from this violation.

Managers
went to the incident site to inspect and ensure mitigation, but they did not
enable MSHA to do so. Mr. Allred testified he told miners to stay out of the
area until Messrs. Gordon and Wilson—whom he knew were on the surface—could
evaluate. Tr. 273. Messrs. Gordon and Wilson testified that they checked the
site and found that a prop had been dislodged, and that much of the rib mesh
was still attached. Id. at 346, 380–82. Mr. Gordon testified that they
further inspected the area that evening. Id. at 347. This sufficiently
demonstrates that miners were working in the area after the incident but before
an MSHA investigation.

I have found that the lack of an MSHA investigation resulted in significant danger to miners continuing to work in an area with clearly inadequate rib support—demonstrated by two rib bursts in the previous five days and no MSHA investigation following either incident. This violation therefore posed a high degree of danger and is an aggravating factor in favor of an unwarrantable failure finding.

4. The extent of the
violation was significant because it affected the safety of the entirety of the
long wall.

The
extent is the scope or magnitude of the violation. See E. Associated Coal Corp.,
32 FMSHRC 1189, 1195 (Oct. 2010) (citing Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992)). A judge has found an extensive violation of a
reporting violation, considering the abatement measures taken to terminate the
relevant orders. See Pine Ridge Coal Co., 33 FMSHRC 987, 1017 (Apr.
2011) (ALJ) (citing E. Associated Coal Corp., 32 FMSHRC at 1196; Peabody
Coal Co., 14 FMSHRC at 1263) (“[T]he failure to report the “near miss”
accident . . . extensively inhibited the use of MSHA expertise to timely investigate
and institute critical, pro-active corrective actions through the [section] . .
. .”).

Having
found that the danger of this violation is the occurrence of a similar event in
a working area that has been demonstrated to be inadequately supported, I find
that the extent of the violation includes the entire 8 Right Longwall. Ex.
GX-1, 5. I further find the cited ALJ decision instructive, and I hold that the
failure to report “extensively inhibited” MSHA’s investigation and possible
mitigation.[44] The extensiveness of this
violation is therefore an aggravating factor in favor of an unwarrantable
failure finding.

5. The length of time the
violative condition existed was minimal because, though initiated by the
inspector, Respondent informed MSHA the next morning.

The
violation was marked “terminated” on the same day it was issued. See Ex.
GX-1 (“This event has already occurred, discussions with the mine operator were
held about this subject.”). Mr. Madrigal visited the mine the next day—August
26—and the citing inspector visited the day after. Tr. 114–15.

The
record demonstrates that Mr. Lyons did not go underground to inspect the area. Tr.

128. Mr. Lewis went underground on August 27. Id. at 166–67. At the
     latest, the condition was abated on August 27—approximately 36 hours after the
     incident—upon Mr. Lewis’ inspection. I find it more likely, however, that the
     condition was abated following Mr. Madrigal’s inspection on the morning of
     August 26. This is because Mr. Lyons testified that Mr. Madrigal informed him
     about the incident, his inspection, and Mr. Adams’ injury, and Mr. Lyons did
     not conduct an inspection himself.

The
length of time the violative condition existed was therefore approximately 14
hours. The Commission has found that the duration of a minimum of two shifts
was an aggravating factor in favor of an unwarrantable failure finding. See
The Am. Coal Co., 39 FMSHRC 8, 22 (Jan. 2017). I find that the duration
here is not an aggravating factor.

6. Respondent’s efforts in
abating the condition were sufficient because an MSHA representative was aware
and able to inspect.

I have found that the condition was obvious, and Respondent clearly relied on the wrong standard—"life-threatening” injury—to conclude the incident was not reportable. Mr. Cooper intended to, and did, file a 7000-1 form. Even if prompted by questions at the presence of the stretcher, Tr. 118, he informed Mr. Madrigal about the incident, and Mr. Madrigal inspected. Likely believing this sufficient, Mr. Cooper still emailed other MSHA personnel.

I take the “discussions” cited for termination of the citation as those that occurred between Messrs. Madrigal and Cooper. First, there was no call to the hotline and no further notification to Mr. Lyons following Mr. Madrigal’s inspection. Mr. Lyons did not inspect the site. The abatement—which would require such inspection—was therefore based on either Mr. Madrigal’s inspection on August 26, or Mr. Lewis’ on August 27, and the associated discussions. And since Mr. Cooper contacted MSHA officials on August 26, I take that as the abatement time recognized in Mr. Lyons’ September 10 citation. Respondent’s abatement efforts are therefore not an aggravating factor in favor of an unwarrantable failure finding.

7. Respondent had not been
placed on notice that greater efforts were necessary for compliance because it
had few similar citations, and MSHA provided no prior warnings in that regard.

An
operator’s history of similar violations puts the operator on notice that
greater efforts are necessary. See Brody Mining, LLC, 37 FMSHRC at 1699;
Big Ridge, Inc., 35 FMSHRC 1525, 1530 (June 2013) (disagreeing with the
contention that past violations can only provide notice if they are factually
indistinguishable from the cited condition). The record demonstrates only one
other reporting violation. Ex. GX-3. The Secretary did not demonstrate any
communications wherein MSHA warned Respondent about failures to report.

The
inspector noted prior injuries in the citation before assessing unwarrantable
failure. See GX-1, DOL 0036 (“The mine operator has had two injuries on
the Longwall face in the last 6 months, six in the last two years.”). These
injuries would likely be more appropriately cited in the rib control
citation—even though I can only assume that they were the product of such a
violation. No evidence was presented that Respondent failed to notify MSHA
about any such injuries. They are therefore irrelevant. This element is
therefore not an aggravating factor in favor or an unwarrantable failure
finding.

** 8. Conclusion**

The
factors in favor of an unwarrantable failure finding include Respondent’s
knowledge, the obviousness of the violation, the high degree of danger, and the
extent of the violation. The duration, abatement efforts, and whether
Respondent was on notice that greater efforts were necessary, are not
supportive of such a finding. I conclude that this violation was the result of
Respondent’s unwarrantable failure to comply with a mandatory standard. See Peabody
Midwest Mining, LLC, 44 FMSHRC at 525 (“[T]he Commission has held that brief
duration does not militate against a finding of unwarrantable failure where the
condition is distinguishable by its high degree of danger and obvious nature .
. . .”).

---

E. Penalty

Respondent has been cited once in the last two years at this mine for violation of this regulation. Ex. GX-3. This is a low rate of repeat violations, but does reflect a misperception of the duty to report. I accept that the Secretary has properly evaluated the size of the mine. The parties have stipulated that payment of this penalty will not affect the Respondent’s ability to continue in business. Stips. ¶ 7.

Respondent made efforts to achieve compliance through its verbal report to Mr. Madrigal and its 7000-1 report, though I have found such efforts prompted and lacking overall.

I have affirmed the Secretary’s gravity, negligence, and unwarrantable failure determinations. While the failure to report was made by a lower-level manager, and ratified by the mine’s safety director, I find that the violation results from a failure of mine management generally to consider the important purposes served by the immediate notification requirement and, flowing from that, a failure to ensure that responsible persons are properly trained to notify the agency immediately when an accident occurs.

I do not, however, find this to be willful or intentional misconduct. I consider this a serious lack of reasonable care due to the operator’s improper reliance on a faulty assessment of the injury over an inappropriately protracted timeline.

MSHA proposed what is effectively a maximum penalty in this case. Yet there must be a difference in penalties between a failure such as the one here and a finding, for instance, of a purposeful failure to report, based on the chance that the injury will eventually not be assessed to have a reasonable potential to cause death, or directing that a known injury not be reported to avoid a halt to production. Considering the circumstances and all the factors in Section 110(i) of the Act, I therefore assess a penalty of $50,000.00.

VI. INDIVIDUAL LIABILITY FOR
VIOLATION OF SECTION 50.10(B)[45]

A. Each
Cited Respondent Was an Agent.

Each
cited respondent here was an agent of Canyon Fuel Company, LLC. An agent is defined
as “any person charged with responsibility for the operation of all or a part
of a . . . mine or the supervision of the miners . . . .” 30 U.S.C. § 802(e).[46]

The
Commission has held that an agent is one who “is authorized by another, the
principal, to act on the other’s behalf,” having authority to represent the
principal in “dealings that affect the principal’s legal rights and
obligations.” Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 195
(Feb. 1991) (citing Johnson v. Bechtel Assocs. Pro. Corp., 717 F.2d 574,
579 (D.C. Cir. 1983); Agent, Black’s
Law Dictionary (5th ed. 1979); Restatement
(Second) of Agency § 10 (Am. L.
Inst. 1958)). Messrs. Tanner, Allred, Wilson, Gordon, and Cooper were,
at the time of citation, the general manager, shift foreman, superintendent,
production manager, and safety manager, respectively. Stips. ¶ 9–13.

Mr.
Allred was acknowledged to be the “responsible person” on the shift. Id.
¶ 29, 35; Tr. 258–59. Each of the others was also entrusted with some authority
to control aspects of the mine’s operations.

B. Each
Cited Respondent Was in a Position to Remedy the Condition.

In
the context of a reporting violation, this element of individual liability
means that the agent was in a position to notify MSHA upon learning about the
incident. Because reporting does not, and cannot, require a designated miner, see
Signal Peak Energy, LLC, 37 FMSHRC at 476, I address collectively whether
the agents were positioned to remedy the condition.

Section 50.10 requires “an operator” to notify MSHA. As an agent of the operator, each respondent was authorized to act on behalf of the operator with respect to mining operations, and the actions of each affected the operator’s legal rights and obligations.

Mr.
Allred acknowledged that he was the “responsible person” on shift, that he was
in a position to stop work and call MSHA, and that he had the ability to do so.
Tr. 283, 285. Mr. Cooper testified that he had the ability to stop work in
response to unsafe conditions. Id. at 329.

Though Messrs. Gordon, Wilson, and Tanner made no such acknowledgements, common sense informs me that their positions in mine management enabled them to make the decision to notify MSHA upon learning of the incident. All respondents were therefore in a position to remedy the condition.

C. Each Respondent Failed to
Act on the Basis of Information That Gave Them Knowledge or Reason to Know of
the Existence of the Violative Condition.

The
“knowing” language of section 50.10 mirrors the Commission’s requirement for
knowledge under section 110(c). Compare 30 C.F.R. § 50.10 (“[O]nce the
operator knows or should know that an accident has occurred . . . .”)
(emphasis added), with Richardson, 3 FMSHRC at 16 (“If a person
in a position to protect employee safety and health fails to act on the basis
of information that gives him knowledge or reason to know of the
existence of a violative condition, he has acted knowingly and in a manner
contrary to the remedial nature of the statute.”) (emphasis added).

I
have already found that the operator had reason to know that an accident had
occurred with the reasonable potential to cause death. See Section
V.A.2., supra. As discussed above, having knowledge that a rib burst
occurred, covering a miner in coal, would give an experienced miner reason to
know that an injury with the reasonable potential to cause death occurred, even
if one did not know exactly what the injury was. Id.

The narrow issue is therefore whether and how this knowledge can be imputed to the individual Respondents.

For purposes of Section 110(c), the duty to report only arises when the officer or agent has knowledge or reason to know of the existence of the violative condition. Because these are individual charges, and because each of the individuals learned about the incident at a different time and in a different manner, it is important to consider carefully each person’s liability.

Mr.
Allred was the first of the individual respondents to be informed of the
incident. He testified that he was informed at 5:08 p.m. by the production
foreman, Charlie Wilson, that Mr. Adams had been “covered up with coal along
the 8-Bay.” Tr. 262–63; see also Stips. ¶ 20; JT-6.

Mr.
Allred’s first reference to Mr. Cooper was that he called him and gave an
assessment of his injuries. Tr. 273–74. But that was about forty minutes after
the report, when Mr. Allred was finally at the site and had seen Mr. Adams. Id.
at 286.

Mr. Cooper testified, however, that he was notified by Conspec, and Mr. Allred testified that he had notified Conspec immediately upon receiving the call about the incident. Tr. 264, 301–02. I therefore find Mr. Cooper knew of the accident within minutes of Mr. Allred.

This
is further supported by Mr. Gordon, who testified that Mr. Cooper called him
between 5:20 and 5:25. Tr. 336. Mr. Gordon was therefore informed within 12–17
minutes about a miner being buried, though Mr. Cooper did not describe any of
the injuries. Id. at 335–36. Mr. Cooper did testify that he later spoke
with Mr. Gordon and told him the injuries were not life threatening. Id.
at 326.

Mr.
Wilson testified that Mr. Cooper called him at 5:30. Tr. 373. He later received
a call from Mr. Allred informing him of what occurred. Mr. Wilson said he was
told that they had to remove Mr. Adams from the coal, that the ambulance was on
the way, and that there were possible injuries to his knee, neck and head. He
also said he asked Mr. Allred if he thought it was immediately reportable, “if
it was life-threatening,” and Mr. Allred told him, “[N]o, I don’t think it
would be.” Id. at 376.

Mr.
Tanner testified that Mr. Cooper called him between 5:30 and 5:40. Tr. 435. He
received a second call from Mr. Cooper that Mr. Adams was being brought up with
a cut on his forehead and possible back injury resulting from a rib fall or
roll. Id. at 437.

Mr.
Cooper could not have known this until his conversation with Mr. Allred at
5:48, at the earliest. Further, he received a call from Mr. Wilson, who had
arrived at the surface and seen Mr. Adams loaded into the county ambulance. Tr.

439. Mr. Wilson informed him that Mr. Adams was in good shape, that material
     had rolled out underneath the rib, and that the incident was not immediately
     reportable. Id. at 439–40.

Each
respondent was therefore notified about a miner buried in coal within 32
minutes of the incident. Any one of them could have notified MSHA. See
Section VI.B., supra.

Respondent
cites Freeman extensively, arguing both that the agents did not have the
required knowledge of the violative condition, and that they did not have an
unwarrantable failure-level of culpability. Resp’t Br. 29–30.

In
Freeman, the D.C. Circuit reversed the judge, finding no individual
liability. 108 F.3d at 364. It held that the record did not support that the
agents had actual or constructive knowledge of the hazardous level of
deterioration of the violative beam. Id. Importantly, the decision held
that while the agents knew of the instability risk from corrosion, they were
addressing the condition responsibly through inspections and repairs, and
numerous regulatory inspections never reported any concern with the condition. Id.[47]

I
have already found that the agents had knowledge of the condition—a miner
covered by coal from a rib burst being reasonably likely to cause death. Freeman
does not preclude liability arising from this finding. The Commission’s holding
that the agents had neither actual nor constructive knowledge concerned
knowledge of the “hazardous level of deterioration” of the specific beam that
collapsed. Id.[48]

Respondents
here had constructive knowledge of the specified hazard—the risk of similar
injuries with the reasonable potential to cause death resulting from further
rib bursts in an uninspected, and potentially inadequately supported, work area.
Even if I were to find that Freeman controlled the outcome here (it does
not), whether the agents were addressing the condition responsibly is the only relevant
issue. But many of Respondents’ arguments don’t directly address the issue as
it relates to the failure to report the accident.

Much
Respondent-elicited testimony was dedicated to the efforts the operator took to
address the roof control risk, noting that mesh and props had been installed as
a precaution. The alleged 110(c) liability here, however, is based on the
failure to report an incident in which those measures had proved inadequate, so
efforts to mitigate the roof and rib conditions do not avert Respondents’
culpability for not reporting the failure. Respondents therefore are not absolved
under Freeman’s reasoning.

Respondents
also cite Target Industries, Inc., 23 FMSHRC 945 (Sept. 2001), to argue
against a finding that they had knowledge. Resp’t Br. 29. While the affirming decision
laid out the standard description of requirements for knowledge, the facts of
the case, when compared to those here, are damaging to Respondents.

The
Commission affirmed the individual liability finding against one respondent who
was notified, while at home, of dangerous conditions and failed to notify
anyone at the mine or take any action. 23 FMSHRC at 950, 963.[49] Similarly, all the agents here,
whether at the mine or at home, were notified of a dangerous condition and
failed to act.

Respondents
might attempt to distinguish themselves from the respondent in Target
Industries because he was part of the formal notification
procedure—meaning that he was specifically responsible. Id. at 948. But
each of the Respondents here had important duties and responsibilities in
response to the rib burst and Mr. Adams’ injuries. To their credit, each
individual respondent acted promptly and conscientiously to attend to Mr.
Adams. But that is irrelevant to whether they were in a position to report an accident,
knew the facts giving rise to the duty to do so, and failed in that
responsibility.

Mr.
Allred is the direct comparison to the individual charge in Target Industries,
as the responsible person. Each of the others, however, was subsequently in a
position to protect miner safety and was notified. Target Industries provides
no basis for excusing a failure to do so, because Respondents knew it was
important to inform mine management of the status of events, yet none believed
at any time that it was necessary to inform MSHA.

The
Commission also found aggravated conduct in Target Industries because of
blatant disregard for miner safety, rejecting the asserted justification that a
false alarm must have occurred. Id. at 965. The Commission emphasized
that it has rejected reliance on “‘best-case scenario’ assumptions as a basis
for failing to take action despite evidence of a potentially dangerous
condition.” Id.

Mr. Allred, in contrast, assumed the worst here—an appropriate response when arranging a potential rescue and evacuation. That concern, though, did not extend fully to the implications raised by the incident, and the need to ensure miners would be protected, to the maximum extent possible, from a subsequent ground movement.

The notification requirement exists, in part, because of the tremendous operational pressures imposed on mine management. Miners and bills must be paid regardless of whether the mine produces coal, but revenue stops when production ceases. Involving the agency in the inspection and investigation of mines is intended to counter the tendency toward wishful thinking and best-case assumptions.

I
have already found that the failure to report was the result of the operator’s
high negligence, see Section V.C., supra, and unwarrantable
failure, and therefore “aggravated.” See Section V.D., supra. The
remaining issue is therefore whether the finding of aggravated conduct against
the operator can be imputed to Respondents. I hold the reasonableness of
imputing aggravated conduct to individuals depends on the attenuation from the
action and reasonable expectation of response from each of them.

D. Messrs. Allred’s and
Cooper’s Failure to Act was Aggravated Because of Time, Proximity to the
Incident, and Expertise.

1. Shane
Allred

Mr. Allred was the shift foreman and the mine had designated him as the “responsible person” for reporting accidents to MSHA. He was therefore in a position to protect employee safety and health, and he was informed of a serious incident for which he called Conspec to contact a known EMT-trained miner, Dayna Anderson, and the county ambulance. Tr. 264, 265. Based on his experience and information available, I find Mr. Allred had reason to know that MSHA notification was required—both to ensure all assets were properly mobilized to help an injured miner, and to inspect the incident area to ensure the safety of others.

The dispositive issues are therefore whether Mr. Allred’s omission was “aggravated,” and as a subsequent defense, whether he had a reasonable, good faith belief that he was not required to report it. Because of the finding of failure to report, I find Mr. Allred failed to act to correct the condition. His inaction was also a result of aggravated conduct more than ordinary negligence.

The
following unwarrantable failure findings are imputed to Mr. Allred, as he was
at the mine and was the first person notified. First, as found above, he had
knowledge of the violation. Next, I consider the incident to be sufficiently
obvious to require reporting. His violation posed a high degree of danger
because MSHA was unable to assist in ensuring an optimal response to the
accident, and miners continued to be present and work in the area without an
MSHA inspection to validate the safety of the longwall for other miners. This
danger is further demonstrated by the fact that there was a similar rib roll
days earlier that, luckily, did not injure any miners. Finally, his
violation was extensive in that it affected the entire working longwall.

I
do not even consider this from the point of Mr. Allred actually observing Mr.
Adams and his injuries. Messrs. Allred, Bonnanci, and Anderson all testified
that Mr. Allred’s travel time and the time required to uncover Mr. Adams took
nearly or more than thirty minutes after notification. Tr. 92, 235, 266. There
is testimony that Mr. Allred immediately called Conspec, and other testimony
demonstrates that he could have inquired further into Mr. Adams’ on the call with
Charlie Wilson while he drove to the site. See supra note 36.

As
in Matney, Mr. Allred should have known of the high degree of danger
from the readily apparent nature of the incident. Further, Mr. Allred had the
primary responsibility to gather information about incidents, assess the
hazardous conditions, and take necessary steps to address it to protect miners.
He was clearly in a position to protect miners by notifying MSHA of the
accident, but failed to do so. The evidence indicates that Mr. Allred conducted
minimal fact-finding regarding the accident and attendant injuries during the
reporting period. Had Mr. Allred taken more careful and thorough action, he
would have noted the obvious and highly dangerous nature of the accident and the
potential for continuing danger. The record thus compels the conclusion that a
foreman, exercising reasonable care, would have apprehended the full scope of
the danger presented by the hazardous rib conditions and notified MSHA.

A
good faith belief that an incident is not reportable based on remaining
uninformed for the statutory fifteen-minute duration is unreasonable. See
Mainline Rock & Ballast, Inc., 693 F.3d at 1189 (affirming a reporting
violation because the superintendent was “remarkably non-inquisitive” about the
injuries and holding that he did not “have the discretion to remain
uninformed”). Mr. Allred’s belief that he was not in violation of the reporting
standard was not reasonable. He could have reported the accident based on the
nature of the ground movement and the same concerns that prompted him to direct
Conspec to call an ambulance and to send Mr. Anderson to the scene of the
accident.

For at least thirty minutes, apparently with a working means of communication, Mr. Allred remained “remarkably uninquisitive” about Mr. Adams’ possible injuries. He had fifteen minutes from notification at 5:08 to comply by notifying MSHA. He had sufficient information—based only on a miner covered in coal, and no further updates—to require a prudent miner of his experience to notify MSHA.

Even if he believed in good faith that he did not have enough information, there is no evidence in the record showing that he inquired in detail about Mr. Adams’ condition. He could have done so while on the way to the scene, and certainly could have at the scene. While a late accident report might have been a violation, it would have enabled the agency to respond promptly, and the omission would not have been aggravated.

When asked why he requested an ambulance, Mr. Allred said, “I assumed the worst.” Tr. 288. This was the appropriate response to a serious unplanned ground movement that covered a miner in coal. At the moment Mr. Allred learned of the incident, he knew enough to act quickly—immediately, at once, and without delay—to seek medical attention for Mr. Adams, based on the circumstances reported to him, but he did not call MSHA.

I therefore find Shane Allred individually liable under section 110(c). While I find that his good faith belief was unreasonable, it appears that Mr. Allred’s understanding is consistent with that of upper mine management and that his failure to notify the agency was the result of improper training and a misapprehension of the law by his superiors.

I further note that at the hearing he was a forthright witness who did not try to avoid accountability for his actions, and that his response to ensure care and assistance for Mr. Adams was commendable. I therefore assess a penalty of $1,000.00.

2. Michael
Cooper

Mr. Cooper was the safety manager and was immediately informed by Conspec about a miner being buried in coal. He was therefore in a position to protect employee safety and health, and he personally informed three of the other respondents about the incident. Based on his experience, information available, and the specialized nature of his position, I find Mr. Cooper had reason to know that MSHA notification was required.

The dispositive issues are therefore whether Mr. Cooper’s omission was “aggravated,” and as a subsequent defense, whether he had a reasonable, good faith belief that he was not required to report it. Because of the finding of failure to report, I find Mr. Cooper failed to act to correct the condition. His inaction was also a result of aggravated conduct more than ordinary negligence.

The same unwarrantable failure findings attributed to Mr. Allred are similarly attributable to Mr. Cooper. At best, it is possible to assert that Mr. Cooper had little familiarity with the August 20 rib roll, because he was on vacation at the time. Tr. 320. It is likely, however, that as the safety manager, he would have reviewed the occurrence upon return; especially since mitigating actions were apparently taken—e.g., mesh and props were installed in the wake of the incident.

Mr. Cooper is particularly liable regarding the degree of danger because as a safety professional, he should have better understood the potential risks stemming from MSHA’s inability to inspect safety for other miners before they continued operations in the area. Mr. Cooper, as the safety manager, should understand that requirement more than any other respondent. Finally, his violation was extensive because it affected the entire working longwall.

Mr. Cooper’s belief that he complied with the standard in not reporting was not reasonable. He similarly remained “remarkably uninquisitive” about the possible injuries after he was informed of the burial by Conspec and notified each of the Respondent managers. At the same time, it is apparent that Mr. Cooper also was not properly trained by the mine to fully appreciate the duty to report immediately if there is any doubt about the seriousness of the injuries. As a safety professional, he should have known better than Mr. Allred, but I do find some mitigation for his failure.

I therefore find Michael Cooper individually liable under section 110(c) and assesses a penalty of $1,500.00.

3. The remaining respondents
are not individually liable because of the notification time, lack of evidence
of personal involvement in the violation, and attenuation.

It was not determinatively established at hearing that Messrs. Gordon, Wilson, or Tanner were notified within the reporting window. Technically and narrowly, then, the violation had already occurred before they were in a position to have done anything about it.

Nor was there any evidence that any of the three participated in, directed, or authorized the failure of Mr. Allred or Mr. Cooper to notify MSHA. While managers should be on notice that such an event has the reasonable potential to cause death and is immediately reportable, a finding that higher-level managers are liable for failure to report after the initial window would incentivize a policy of limiting access to possible reports to prevent liability.

Operators need to educate and empower first-line supervisors, or “responsible person(s),” to notify MSHA, and those persons are rightly responsible, especially when they are the first ones notified and closest to the accident site and thus most able to assess the situation. In this case, the decision-making authority was appropriately delegated to Mr. Allred, but it appears that neither he nor Mr. Cooper was properly instructed on the requirements of the rule, as MSHA has explained them in its preamble and as the Commission has further elaborated in its decisions.

This is a failure of the mine management generally, but there is insufficient evidence to specifically hold that either Mr. Gordon, Mr. Wilson, or Mr. Tanner did anything to repress or discourage reporting to MSHA.

I am concerned that the same incuriosity exhibited by Messrs. Allred and Cooper could be attributed to the other three individual Respondents. But they appeared to be laboring under the same misapprehension of the law.

Further, Messrs. Gordon, Wilson, and Tanner were notified secondarily by Mr. Cooper, specifically a safety professional, and may have assumed he was getting direct information. They appropriately relied on his assessment of the severity, even if he, and they, misperceived the standard for reporting.

It might have been possible for the Secretary to argue, and show, that the failure to ask more probing questions about Mr. Adams’ condition or how they occurred constituted a continuation of the violation that materially impeded MSHA’s response. But I decline to extend the reporting requirement in this context. It might be wise for MSHA to incentivize corrections by upper-level management by providing a safe harbor for managers and operators who correctly determine that a duty to report exists after the 15 minute reporting limit has expired, but this is a policy question beyond the scope of my duties.

I therefore find that there is insufficient evidence to sustain individual Section 110(c) liability against Respondents Gordon, Tanner, and Wilson. However, I have taken into account the mine’s failure to properly educate its personnel in the need to notify MSHA when in doubt in imposing a high penalty against the operator for this violation.

VII. CONCLUSION

It
is ORDERED that Order No. 8541892 be AFFIRMED as assessed.

It
is also ORDERED that for Order No. 8541891, the negligence be MODIFIED
from “High” to “Moderate,” and the “Unwarrantable Failure” designation be REMOVED.

It
is also ORDERED that individual liability assessments against Shane
Allred and Michael Cooper be AFFIRMED, and those against Jed Gordon,
Jake Wilson, and Dewey Tanner be VACATED.

It is also ORDERED that
Shane Allred and Michael Cooper pay the Secretary of Labor the assessed penalties
of $1,000.00 and $1,500.00, respectively.

Finally, it is ORDERED that
the Respondent pay the Secretary of Labor the assessed penalty of $75,000.00 within
30 days of the date of this decision.[50]

/s/
Michael G. Young

Michael G. Young

Administrative Law Judge

Distribution (First Class Mail and email):

Jason S.
Grover, Office of the Solicitor, 201 12th Street South, Suite 401, Arlington,
VA 22202, [email protected]

Rebecca
Mullins, Office of the Solicitor, 201 12th Street South, Suite 401, Arlington,
VA 22202, [email protected]

R. Henry
Moore, Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA
15222, [email protected]

[1] The violation was
originally cited under section 50.10(c). This Court allowed amendment to allege
a violation of section 50.10(b) instead. Order Granting Mot. to Amend Order,
Docket No. WEST 2021-0188 et al., at 3 (Apr. 27, 2022).

[2] This Court approved
settlement of three violations: 8541894, 8541895, and 8541897. Decision
Approving Partial Settlement, Docket No. WEST 2021-0188 et al., at 2 (May 19,
2022). The Secretary also vacated two violations: 8541893 and 8541896. S. Mot.
to Approve Partial Settlement, Docket No. WEST 2021-0188 et al., at 2 (May 11,
2021). Individual civil penalties against Messrs. Tanner, Allred, Wilson,
Gordon, and Cooper are also before the Court.

[3] “[I]f an operator
acted on the good-faith belief that its cited conduct was actually in
compliance with applicable law, and the belief was objectively reasonable
under the circumstances, the operator’s conduct will not be considered to
be the result of unwarrantable failure when it is later determined that the
operator’s belief was in error.” Id. at 1358 (quoting Kellys Creek
Res., Inc., 19 FMSHRC 457, 463 (Mar. 1997) (citing Cyprus Plateau Mining
Corp., 16 FMSHRC 1610, 1615–16 (Aug. 1994))) (emphasis added).

[4] A finding of high
negligence may support an individual liability finding when conduct is found to
be aggravated. See Target Indus. Inc., 23 FMSHRC 945, 965 (Sept. 2001)
(affirming 110(c) liability where the judge found that the violations were
“extremely serious” and the result of high negligence); Austin Powder Co.,
21 FMSHRC 18, 27 (Jan. 1999) (affirming a finding of liability where the judge
found “high negligence,” but the record also demonstrated “aggravated
conduct”).

[5] The Commission in
Matney, in reversing a judge’s finding against individual liability,
specifically referenced the cited condition’s “readily apparent” character, as
well as the nature and extent of the condition and failure to conduct adequate
inspections. 34 FMSHRC at 784–86.

Another
opinion has also noted this confluence, stating:

It is well
established that section 110(c) liability is predicated on aggravated conduct
constituting more than ordinary negligence. Slip op. at 10 (citing BethEnergy
Mines, 14 FMSHRC at 1245). Similarly, the Commission has held that
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). But the
Commission has never distinguished between these two holdings and explained
what the term “aggravated conduct” means in the context of section 110(c) -- a
gap in Commission jurisprudence that I believe needs to be addressed.

• Austin Powder Co. & Bruce Eaton * , 21 FMSHRC 18, 31
  (Jan. 1999) (Verheggen, Comm’r, concurring).

[6] For comparison, the Commission’s
decision to affirm the judge’s unwarrantable failure findings cited the
following as substantial evidence: (1) the violation existed for over a year;
(2) the physical extent of the violation included the entire walkway; (3) the
report clearly notified the operator; (4) there was no evidence that the
operator attempted to repair the walkway; (5) while there was no evidence that
the condition caused the event that day, or that there was a danger of falling
through the walkway due to the existence of wire mesh, the danger of falling in
a narrow walkway while walking on taconite (pellets) could not be discounted;
(6) the deficiencies were obvious; and (7) “the engineering report made it
clear that the walkway was not safe for use.” 43 FMSHRC 1, 26 (Jan. 2021); see
also 41 FMSHRC 50, 64–66, 72–73 (Feb. 2019) (ALJ).

The
judge’s 110(c) liability findings mirrored those the Commission (and the
circuit court) accepted for unwarrantable failure. Regarding knowledge, the
judge cited knowledge of the report’s recommendations. 41 FMSHRC at 74. The
agents’ knowledge was also supported by the obviousness of the violation,
including that the condition existed for over a year and was extensive. Id.
at 72, 73. The agents’ position to effect a remedy was demonstrated by their
ability to implement fall protection and their control of the area generally. Id.
at 52, 72. Finally, regarding inaction, “there was no evidence that the
operator [including the two agents] attempted to repair the walkway.” 43 FMSHRC
at 26.

[7] Shane Allred
testified that he was notified at 5:08 p.m. by production foreman, Charlie
Wilson. Tr. 262–63; see also Ex. JX-6 (noting the “Time of accident” as
“5:08 p.m.” on the Mine Accident, Injury and Illness Report).

[8] A disparity in
terms generally existed between the parties. The Secretary consistently
referred to the incident as a “rib burst.” Respondent, however, referred to it
as a “rib roll,” which intuitively seems a less violent description. I would
note that one of Respondent’s witnesses, and an individual liability
respondent, Michael Cooper, did use the term “burst” during cross-examination. Id.
at 326 (recalling the report from Shane Allred). I need not delineate between
the terms, but I will use “burst” throughout the decision. It is sufficient for
my evaluation that material from the rib detached and covered Mr. Adams.

[9] The 8 Bay is an
approximately 3 feet tall and 20 feet long metal machine that runs a conveyor. Tr.
54, 273, 286, 449.

[10] Mr. Adams claimed
he briefly lost consciousness, id. at 35–36, 55, but he admitted on
cross-examination that he could not recollect if he ever informed anyone, id.
at 55–56.

[11] Conspec is the
mine’s communications center. Tr. 20. Conspec personnel made internal
notifications and coordinated external medical support. Id. at 20,
264–65, 301–02.

[12] Jed Gordon
testified that Mr. Cooper called him between 5:20 and 5:25. Id. at 336. Mr.
Cooper had therefore been informed between 5:08 and 5:20.

[13] This is supported
by the testimonies of Messrs. Allred and Anderson. Mr. Allred stated it took 10
minutes to walk to his truck upon receiving the report, and then 30 minutes to
drive to the site. Id. at 286. When he arrived, Mr. Adams was already
uncovered and on a stretcher. Id. at 266. Mr. Anderson arrived just before
Mr. Allred, noting Mr. Adams was no longer covered. Id. at 91–92.

[14] There was no
testimony about a relationship between Shane and Mike Allred. Mr. Adams only
specified that they were “[d]ifferent people.” Id. at 41.

[15] Mr. Anderson reassured
Mr. Adams that the wound was looking good, but he silently shook his head at
Mike Allred to indicate that it did not. Id. at 99.

[16] This assessment
determines a patient’s “level of responsiveness,” dealing with “eye movement,
how they respond verbally, and their motor function,” which are combined for a
15-point scale. Tr. 469. Mr. Adams scored a 15. Id.

[17] Mr. Bonnanci
testified to this, Tr. 242, and Mr. Tanner stated that the mine could not
produce that night because the conveyor was hung up, id. at 440.

[18] Messrs. Cooper,
Gordon, and Wilson discussed notifying MSHA at that point, but they agreed the
injury was not immediately reportable. Id. at 390.

[19] Mr. Lyons
testified that he would think an incident was reportable “[i]f [he] was aware
of a miner that was struck by a violent rib burst that caused him to smash into
the control panel and suffer neck and back pain as well as bleeding from the
head, and was buried for over 45 minutes.” Id. at 150.

[20] Mr. Layton
obtained two separate engineering evaluation reports following the incident. Id.
at 403; see Ex. GX-5, 6. He claimed the pillars were the same size
approved by MSHA in another section. Id. at 405. The reports were not
determinative that the pillars were oversized. Id. at 413–14.

[21] I hold in
this decision, and the record establishes, that Mr. Adams could have been
killed by the rib burst, see Section V.A.2., infra, and the
severity might have been assessed as “fatal.” The Secretary’s characterization in
the order apparently flows from the fact that an incident actually occurred,
but a miner did not die as a result.

[22] I note here that
I do not accept Respondent’s contention that the two citations were
duplicative. See id. at 35–39. I agree with the Secretary that the
provisions impose “separate and distinct duties,” and that plans can be
violated in ways that do not involve the failure alleged here. See S.
Br. 23 (citing Ky. Fuel Corp., 38 FMSHRC 1614 (July 2016)). Further, the
plan violation citation was vacated, and I find that this citation is properly
before me.

[23] Significant
testimony was elicited, and documents produced, about the noted geological
event/earthquake associated with the August 20 incident. See Ex. R-E;
Resp’t Br. 41; Tr. 119–25, 152, 397–401. The inspector’s narrative suggests
that the prior burst registered as a geological event. If the Secretary’s
theory is that the burst was so powerful that it registered on the Richter
Scale, Respondent effectively demonstrated that the timing and location of that
recorded event did not match the burst. If the Secretary’s theory is that the
recorded geological event may have been a catalyst for the burst, putting
Respondent on notice that further mitigation was needed, such evidence is
unnecessary because the rib burst itself would put Respondent on notice. Further,
the Secretary did not address the geological event in her brief.

[24] He acknowledged
that two engineering reports were not determinative that the pillars were
adequate. Id. at 409–12. These reports, however, were sought because of
the event that injured Mr. Adams, id. at 403, so they would have no
bearing on Respondent’s knowledge, or negligence, at the time of citation.

[25] The Secretary
noted, in his violation and unwarrantable failure analyses, that Mr. Allred
admitted the mesh and rock props were inadequate. S. Br. 4, 9. This,
paradoxically, demonstrates that measures were in fact taken.

[26] It is also
relevant that Respondent has been cited for violation of this provision seven
times in the last two years. See Section IV.E., infra. “[T]he
Commission may consider these past violations.” Enlow Fork Mining Co.,
Docket No. PENN 94-259, 1997 WL 14346, at 9 (Jan. 15, 1997) (citing Peabody
Coal Co.*, 14 FMSHRC 1258, 1263 (Aug. 1992) (“[T]he Commission has not
limited the circumstances under which past violations may be considered by a
judge in determining whether an operator’s conduct demonstrated aggravated
conduct.”)).

[27] This problem does
not diminish the logical or legal force of the Court’s otherwise well-reasoned
opinion.

[28] See Bailey v.
United States, 516 U.S. 137, 146 (1995). Canons of statutory construction
may be applied to regulations as well as statutes. See Northshore Mining Co.
v. Sec’y of Labor, 709 F.3d 706, 710 (8th Cir. 2013) (citing Fla. Dep’t
of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 46–52 (2008)); Cremeens
v. City of Montgomery, 602 F.3d 1224, 1227 (11th Cir. 2010); Resnik v.
Swartz, 303 F.3d 147, 152 (2d Cir. 2002); Black & Decker Corp. v.
Comm’r of Internal Revenue, 986 F.2d 60, 65 (4th Cir. 1993).

[29] I find it notable
that the inspector’s citation specifically cited conditions listed in the
preamble—i.e., “concussion” and “upper body blunt force trauma.”

[30] Mr. Cooper was
notified by Conspec. Tr. 301–02. Mr. Allred called Conspec, to request Mr.
Anderson [EMT], upon report of the incident from Charlie Wilson. Id. at

264. Nothing in the record demonstrates whether Conspec was already aware and
     had notified Mr. Cooper, or if it notified Mr. Cooper after the call from Mr.
     Allred. Mr. Gordon testified that Mr. Cooper called him between 5:20 and 5:25. Id.
     at 336. I therefore can only infer that Mr. Cooper was notified before 5:20,
     not that anyone was notified before 5:08.

[31] As noted
elsewhere in this decision, supra note 35, citing another ALJ’s correct
assessment, the nature and extent of head injuries cannot be precisely known. In
particular, the fact that someone is conscious and coherent following such an
injury may not be probative of the reasonable potential of the injury to cause
death. See Ian Lovett & Brett Forrest, The Navy SEAL Who Went to
Ukraine Because He Couldn’t Stop Fighting, Wall St. J. , May 12, 2023, at A1 (Under the sub-heading “I’ll
walk out,” a sailor who had been wounded by a projectile that penetrated his
head remained conscious and walked away from a fire fight, but lapsed into
unconsciousness and died three days later.).

[32] I
clarify here that the fact that Mr. Adams was bleeding from a head wound was
“available” information, as it was known by Mr. Bonnanci and those working to
uncover Mr. Adams. I acknowledge that Messrs. Allred and Cooper were not aware
of the head injury until Mr. Allred’s arrival at the site. This, however, does
not challenge the availability of the information to the operator, as I have
found, infra, that Messrs. Allred and Cooper were required to be more
inquisitive about the extent of the injuries.

[33] I note here that
this violation was initially cited under a different subsection, which requires
reporting an accident involving “an entrapment of an individual at the mine
which has a reasonable potential to cause death.” 30 C.F.R. § 50.10(c); see
Order Granting Motion to Amend Order, Docket no. WEST 2021-0188 et al., at 2
(Apr. 27, 2022). Based on the amount of time it took to uncover Mr. Adams,
there was a possibility that this action ultimately could have been affirmed
under another provision of section 50.10 as well. This is further evidence that
should have compelled reporting of this accident.

[34] This is the
shortest time specified in the Act or regulations for taking any action, and
was added by Congress (“and within 15 minutes”) in the MINER Act. There
is also a requirement to withdraw all miners from the mine if the main mine fan
stops and ventilation is not restored within 15 minutes. 30 C.F.R. § 75.313(c)(1).
This reflects the agency’s clear concern that miners be protected by prompt
action and underlines the urgency of the reporting requirement.

[35] Another
Commission judge has aptly described the danger of head wounds:

[G]etting hit on
the head by a heavy object can lead to an intracerebral hemorrhage, i.e.,
bleeding in the brain. One of the most common causes of brain hemorrhage is
head trauma. This fact is now common knowledge and is certainly something
management of a large mine should know. These hemorrhages have a reasonable
potential to cause death if not diagnosed and treated quickly. Adverse symptoms
of a brain hemorrhage will often not be visible within 15 minutes of an
accident.

• Solvay Chems., Inc. * , 43 FMSHRC 477,
  489–90 (Nov. 2021) (ALJ). Though this is a non-binding ALJ decision, I find it persuasive
  regarding “known unknowns” associated with head or other injuries attendant to
  rib falls and burials. The operator petitioned the Commission for review of
  this decision, which was granted. See Direction for Rev., sub nom
  Sec’y v. American Soda, LLC Formerly Known as Solvay Chemicals, Inc. (May
  12, 2021). The Commission heard oral argument in the case on May 16, 2023. On
  May 18, two Commissioners said they would vote to affirm the ALJ’s holding that
  the accident was reportable. If the Commission holds in accordance with their
  statements at the public meeting, the ALJ’s decision would stand as if affirmed
  but would be non-precedential. See Sec’y of Labor v. Consolidation Coal Co.,
  895 F.3d 113, 116, 117 n.2 (D.C. Cir. 2018) (holding that a two-to-two division
  results in the ALJ’s decision being the final, reviewable, agency action). The
  facts in this case are similar to the facts in Solvay/American Soda, but
  distinguishable. Thus, the Commission’s decision is not likely to have any
  precedential effect on my decision here.

[36] Mr. Allred did
not ask about any injuries during the initial call, or during his next call
with Charlie Wilson while he was driving to the incident site. Tr. 262–63,
265–66. Knowledge of the head laceration, along with his assessment that Mr.
Adams’ injuries were not life threatening, did not occur until his arrival at
the incident site much later. Mr. Cooper only testified to assessments reported
to him by Mr. Allred. Id. at 303–304. He was informed of the incident by
Conspec, but nothing in the record demonstrates that he made further inquiry
into Mr. Adams’ injuries for over half an hour. Id. at 301–02.

[37] Respondent should
have known about—i.e., should have made adequate inquiry into—Mr. Adams’ head
laceration and any other possible injuries. See Section V.A.2.a., supra.

[38] Also, the standard
not only provides when the report to MSHA must be made, but how, including the
agency’s toll-free number in the regulation. 30 C.F.R. § 50.10. The ease of
compliance for this provision also bears on my decision. First, it is
non-prejudicial if it turns out the incident was not reportable. Second,
Congress’ emphasis on the haste with which the decision must be made requires
miner training that makes reporting almost a reflex. The stakes are too high,
and every miner and manager should train to immediately report an incident
where reasonable doubt exists as to a miner’s condition.

[39] This is based on
the likelihood—and occurrence—of the injury that I affirmed as “permanently
disabling.” The fact that the injury was not fatal, and not designated as such
on the citation because the inspector assessed the actual outcome here, see supra
note 21, does not preclude the fact of violation. While this injury was
“permanently disabling,” it is the character of the accident that had the
reasonable potential to cause death.

[40] Respondent
demonstrated that Mr. Madrigal investigated the injury scene and other
inspectors took three days to attempt to inspect. Resp’t Br. 24. The circumstances
surrounding the investigation are admittedly strange. The record shows that Mr.
Madrigal went underground the day after the incident, measured the accident
site rib deformation, and was informed about injuries, which he reported to Mr.
Lyons. Tr. 126–27, 312. Operations continued, and the violative area had been
mined past by the time Mr. Lyons went to the mine. Id. at 128. Neither
inspector issued a K-Order. Id. at 130, 176. Mr. Lyons issued the
citation based on Mr. Madrigal’s information and mine employee interviews. Such
actions likely caused confusion for Respondent as to whether it was in
violation or could continue operation. It is not, however, inappropriate for an
inspector to issue a citation based on information obtained without inspecting
a site. It was not demonstrated that Respondent continued coal production
between the incident and Mr. Madrigal’s visit. Miners did, however, continue
working to clean the area and install mitigation. This occurred without an MSHA
inspection and validation of the area, see Section V.B.4.b., supra,
posing the contemplated risk of similar incident for those still working in the
area where there had been two recent falls.

[41] This contention
is only true to the extent that these inquiries were not made, or at least
confirmed, until after the reporting window. The record demonstrates that each respondent-manager
discussed whether Mr. Adams’ injuries were life threatening with the person who
notified them, or they came to that conclusion based on their own observations.
Tr. 303, 318–19, 326, 338, 376, 439–40. I found management did not seek to assess
the severity of Mr. Adams’ injuries until Mr. Allred arrived on site 40 minutes
later and as such, were inexcusably uninquisitive about the injuries during the
reporting window. See Section V.D.1., supra.

[42] Respondent
reiterates here that the only available information before medical evaluation
at the hospital was the laceration, knee injury, and possible neck or back
injury. Id. at 24–25.

[43] “[T]he Commission
. . . explicitly stated that aggravated conduct more than ordinary negligence
can be demonstrated through a “knew or should have known standard.” The Am.
Coal. Co., 38 FMSHRC 2062, 2081 n.27 (Aug. 2016) (citing Emery Mining
Corp., 9 FMSHRC 1997, 2002–04 (Dec. 1987); E. Associated Coal Corp.,
13 FMSHRC 178, 187 (Feb. 1991) (“A lack of actual knowledge by . . . management
. . . does not necessarily bar an unwarrantable failure finding.”)); see
also Brody Mining, LLC, 37 FMSHRC 1687, 1699 (Aug. 2015).

[44] Though I find it
sufficient that the extent of the violation affected the entire longwall, and
the failure to report extensively inhibited investigation, I note that another
judge has found a violation extensive based on the number of mine management with
knowledge. See M-Class Mining, LLC, 39 FMSHRC 1013, 1030 (May 2017)
(ALJ) (noting that five management officials had knowledge and neglected to
comply, and that upon the inspector’s instruction that it was reportable,
delayed reporting and was evasive). Here, it is only determinative that Messrs.
Allred and Cooper had knowledge within the first 15 minutes, but three other
mine managers were informed in short order. Respondent never did notify MSHA
via the provision’s stated method. See Tr. 148 (receiving confirmation
from Mr. Lyons that “telling Rudy [Madrigal]” is not “contacting MSHA at the .
. . number within 15 minutes”); id. at 327 (receiving confirmation from
Mr. Cooper that he only emailed MSHA representatives after seeing Mr.
Madrigal). I acknowledge that there may have been confusion as to whether
informing Mr. Madrigal, and his subsequent inspection, was sufficient, and I
therefore find this is not comparable regarding not reporting.

[45] Though not contested, I note that
section 50.10 is a mandatory health or safety standard. See Signal Peak
Energy, LLC, 37 FMSHRC 470, 479 (Mar. 2015). A violation of the requirement
may therefore be the basis for section 110(c) liability.

[46] A “person”
includes “individual[s],” id. § 802(f), and Skyline is a mine, Stips. ¶
2.

[47] Though not directly
pertinent here, other jurists, including the ALJ, the dissenting judge in Freeman,
and the Court of Appeals for the Sixth Circuit, have been critical of the
failure of MSHA to cite violations as excusing a breach of an operator’s duty,
and that of its agents and officers, to protect their miners under the Act. “MSHA
inspectors do not undertake to perform a duty owed by the mine operator to its
employees.” 18 FMSHRC 483, 456 (Mar. 1996) (ALJ) (citing Raymer v. United
States, 660 F.2d 1136, 1143 (6th Cir. 1981), cert. denied, 456 U.S.
944 (1982)); see also 108 F.3d at 366 (Wald., J., dissenting) (asserting
that other inspections are irrelevant because those inspectors do not have the
information held by agents and “lack[] the expertise and intimate knowledge” of
the facility and condition). The agency in the present case probably should
have more thoroughly investigated the accident when it learned about it. The
failure to do so has no impact on the duty owed by the Respondents.

[48] The Commission
also reversed the ALJ for failing to find the agents knowingly violated the
standard, rather finding high negligence. Id. The finding of violation
here, however, is not based solely on a negligence finding.

[49] The Commission
found that respondent knew the production shift was currently in the mine, and
that another was due in soon; that he chose not to ensure miners were removed
or even knew of the fan stoppage; and that he did so despite instruction to go
to the mine to check out the alarm in the event he could not contact someone
over the phone. Id. at 964.

[50] Please pay
penalties electronically at Pay.Gov , a service of the
U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508 . Alternatively,
send payment (check or money order) to: U.S. Department of Treasury, Mine
Safety and Health Administration, P.O.
Box 790390, St. Louis, MO 63179-0390 . Please include Docket and A.C. Numbers.