Pennsy Supply, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

A customer truck driver was found unresponsive and not breathing at Pennsy Supply's scale, and CPR began immediately. Mine management called 911 promptly but did not notify MSHA until nearly two hours later, after learning that the driver had died. Judge George A. Koutras held that the driver had suffered an injury with a reasonable potential to cause death and that the incident should have been reported within 15 minutes. He reduced negligence from high to moderate because one employee was focused on CPR, management cooperated fully, and the event did not arise from mining conditions or expose others. The citation was affirmed with a reduced penalty of $1,500.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(b)
• Outcome: The reporting violation was affirmed, negligence was reduced to moderate, and the penalty was set at $1,500.
• Key point: The 15-minute reporting duty begins when the known circumstances show a reasonable potential for death, not only when death is confirmed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue

Washington, D.C. 20004

(202) 434-9900/Tel. (202) 434-9949/Fax

December 12, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

PENNSY SUPPLY, INC., 

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. YORK 2011-61-M

A.C. 07-00093-240045

Mine: Tarburton Pit

DECISION

Appearances:
Maria Del Pilar, Esq., Andrea J. Appel, Esq., U.S. Department of Labor, Office of the Regional Solicitor, Philadelphia, Pennsylvania, for the Petitioner

Sarah T. Brooks, Esq., Old Castle Law Group, Atlanta, Georgia, for the Respondent

Before:
Judge Koutras

Appearances:Maria Del Pilar, Es

Before:Judge Koutras 

STATEMENT OF THE CASE

This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802 et seq. (2000), hereinafter the "Mine Act", concerns a Section 104(a), non
S & S Citation No. 8580394, served on the Respondent on October 12, 2010, citing an alleged
violation of mandatory safety standard 30 C.F.R. § 50.10(a), for failing to report a mine accident
within fifteen (15) minutes. The Citation included a "no likelihood" of injury or illness gravity
designation, and a "high" negligence finding. The Secretary's motion to plead an alternative alleged
violation of 30 C.F.R. § 50 (b), was granted on October 12, 2011.

A hearing was held in Dover, Delaware, on May 30, 2012, and the parties appeared and
participated fully therein. The parties filed post-hearing briefs and I have considered their arguments
in the course of this decision.The parties agreed to the following:

1)        The Tarburton Pit Mine is owned and operated by the Respondent.

The Mine is subject to the jurisdiction of the Federal Mine Safety and Health Act
of 1977.

2)        The Administrative Law Judge has jurisdiction over the above-captioned
proceedings.

3)        The citation at issue was properly issued and served by a duly authorized
representative of the Secretary of Labor upon an agent of the Respondent at the date,
time, and place stated therein.

4)        Payment of the proposed penalty of $5,000 will not affect the Respondent's ability to
continue in business.

The Alleged Violation

Section 104(a) non - S & S Citation No. 8580394, issued at 7:30 a.m.,

October 12, 2010, alleges a violation of 30 C.F.R. § 50.10(a), and states as follows (Ex. P-2):

The operator failed to report a serious accident that resulted in a fatality.

On October 8, 2010, at 12:40 p.m., a truck driver was found on the weigh

scale not breathing. Mine management was aware of the incident having

reasonable potential to cause death when emergency personnel was alerted

at 12:45 p.m. CPR was started at 12:45 hours. Emergency personnel arrived

at 13:10 hours. MSHA national call center was notified at 14:42 hours, one

hour and fifty seven minutes later.

Kevin T. Hardester testified that he is currently employed as a supervisory MSHA inspector
for approximately one year and has been employed by MSHA for nine and a half years. He
confirmed his prior mine experience, including previous inspections at the Respondent's mine. He
stated that he went to the mine on October 8, 2010, in response to a call from the National Call
Center, to investigate a fatality concerning a customer truck driver who may have had a heart attack,
and he arrived at

5:30 p.m. (Tr. 19-21,26).

The inspector testified that he met with the Respondent's operations manager, Jeff Dawson.
Mr. Dawson explained that at 12:45 p.m., a truck driver (Curtis Taylor) pulled onto the scale with a
load of sand, stepped out and picked up his ticket, climbed into the truck and shut the door. After not
leaving the scale, the driver behind him approached the truck, opened the door and found Mr. Taylor
slumped over the steering wheel unresponsive. The other driver pulled him from the truck and started
CPR. The inspector confirmed that Mr. Dawson did not witness the event and related to him what he
had learned after the incident. (Tr. 27 - 2&).

The inspector stated that while CPR was being performed, Tina Jackson, who was in the scale
house, called 911 and called Mr. Dawson to alert him of the situation. The paramedics arrived at
12:55 p.m. and continued the CPR, put Mr. Taylor in an ambulance, and took him to Kent General
Hospital at 1:10 p.m., and MSHA was called at 2:42 p.m. (Tr. 29).

The inspector stated that Mr. Dawson did not inform him about any investigation that he had
conducted, and he did not speak to anyone other than Mr. Dawson because the mine was closed. The
inspector stated he went to the hospital, the 911 dispatch office, the police station, and the EMS unit,
and obtained a death certificate as part of his investigation (Tr. 31; Ex. P-8). He confirmed that he
obtained the death certificate prepared by the Coroner from the Office of Vital Records (Tr. 32).

The inspector explained the result of his investigation after speaking with Mr. Dawson and
obtaining the documents he gathered as follows at Tr. 34:

A. That the victim was unresponsive when they pulled him from the truck,

not breathing. They started CPR, transported him to the hospital. According

to the regulations, they have 15 minutes to call. If they're performing CPR,

there's a chance that the victim is going to pass, and that call should be made.

Q. And did you observe any conditions which would have been dangerous

to other miners?

A. No.

The inspector confirmed he issued the citation at 7:30 a.m., on October 12, 2010, citing a
violation of 30 C.F.R. § 50.10(a), and modified the cite section to 50.10(b), because he initially cited
the incorrect standard. He confirmed he issued the citation on October 12th because October 8th was a
Friday at the end of the day, and he could not receive his document’s paperwork until Monday. He
issued the citation to Mr. Dawson (Tr. 35 -36).

The inspector stated that his determination that a violation of the cited standard occurred was
based on his interview with Mr. Dawson, the 911 dispatch report, the EMS, and the death certificate,
that "clearly states they didn't call until 2:42 p.m., an hour and 57 minutes later" (Tr. 37 -38). He
confirmed that the Respondent should have called within 15 minutes, by 1:00 p.m.,

of starting CPR, "realizing that he was unresponsive, not breathing", and "because there was a
possibility that man was going to die" (Tr. 37).

The inspector based his high negligence finding on his belief that the Respondent had enough
people on the site to perform the CPR and to call MSHA, that it was aware of the regulations, and
waited an hour and 57 minutes to call. He confirmed that the violation was abated when the
Respondent called the National Call Center (Tr. 38).

The inspector confirmed that MSHA does not require an operator to halt CPR in order to call
MSHA. He stated that the standard requires a report within 15 minutes and the Respondent did not call
within 15 minutes of EMS arriving. He confirmed that calls were made to 911 and Mr Dawson, and
to his knowledge, no one else was called (Tr. 39). He stated that an "800 number poster" was by the
Respondent's telephone to call within 15 minutes in the event of an emergency. He confirmed that
after a call to 911 was made, a call was placed to Mr. Dawson and the paramedics arrived at 12:55
p.m., and performed the CPR. The Respondent made no calls within 15 minutes of Mr. Taylor being
transported to the hospital, and called one hour and 57 minutes later, after the accident happened
(Tr. 40).

On cross examination the inspector explained that the level of negligence based on how long
after an accident was reported to MSHA would depend on the prevailing circumstances, on a case-by-case basis depending on any justifications called to his attention, including the availability of a phone
line. He repeated his earlier testimony concerning his support for the violation (Tr. 40 - 43).

The inspector stated that three people at the accident scene were performing CPR and he
identified them as the victim's brother and Respondent's employees Dale Wharff and Darrin Smith. He
also identified Tina Jackson, the "scale lady" who was working phone calls. He based his high
negligence finding on the fact that three people were performing CPR and one person was making
phone calls. He confirmed that Mr. Dawson identified the two employees performing CPR (Tr. 45).

The inspector denied that he issues citations based on the preamble to the mandatory standard
and that he does not look at the preamble to determine whether a standard has been violated (Tr. 49). He
stated that the only violation that can be issued for a non-mine related accident is a reporting violation
(Tr. 51). He believed the purpose of reporting within 15 minutes "is because that's what the regulation
states", and when performing CPR the victim is not breathing, not responsive, and there is a
potential for death (Tr. 53).

The inspector confirmed that he made the decision to issue the violation and denied that he is
pressured to issue a citation as part of his investigation (Tr. 55). He could not recall that employee
Dale Wharff performed CPR for 25 minutes, with the phone line open to 911, in order to receive
emergency medical instruction. Assuming that were the case, he would not have expected Mr. Wharff
to hang up or put 911 on hold and call MSHA to verify he was performing CPR (Tr.56).

The inspector believed that the Respondent handled the incident in good faith "as far as CPR,
trying to save the guy, sure they did" (Tr. 56). He did not believe the Respondent was attempting to
avoid compliance or receiving a citation (Tr. 56, 58). He believed the Respondent should have called
when Mr. Taylor was first found unresponsive and slumped over the steering wheel, and if he were not
breathing, there was a chance he would die. He confirmed once the Respondent began performing
CPR, a call should have been made within 15 minutes "because there's still a chance that he's going
to die" (Tr. 59).

Jeffrey P. Dawson, general manager, stated that he has served in this position for
approximately six weeks. In October, 2010, he was serving as the aggregates operation manager, that
included five locations, including the Tarburton Pit. He stated that he has received MSHA new mining
training, annual refreshers, and attended multiple MSHA and Penn State Mine Safety seminars. He has
a B.S. Degree in Mining Engineering from Virginia Tech University (Tr. 74). He confirmed his
knowledge of the regulations applicable to the Tarburton Pit and that his duties include compliance
with those regulations. He identified an affidavit statement of facts he prepared under oath explaining
the events that occurred on October 8, 2010 (Tr. 61-64; Ex. P-5).

Mr. Dawson stated that he was an hour and 15 minutes away from the pit that day with sales
representative Ed Holston, in Delmar, south of the site. He received a hands free cell phone call from
scale clerk Tina Jackson informing him of an injury at the pit and that the first responder EMT's were at
the site. He returned to the site to begin an investigation and arrived at approximately 2:15 p.m.

(Tr. 66-68).

Mr. Dawson stated that Ms. Jackson informed him that Mr. Taylor apparently had a heart attack, that
EMT's had arrived, some were on the way, and that Mr. Taylor was going to be taken to the hospital.
Mr. Dawson stated he was informed that Mr. Taylor had passed out in his truck and was not told CPR
was being performed. He confirmed that he did not tell Ms. Jackson to call MSHA or anyone else
(Tr. 67).

Mr. Dawson stated that he called Darrin Smith on his way back to the site because he was a
manager closer to the site and would be there to take the initial interviews. He could not recall the time
when he called Mr. Smith and it was his understanding that Mr. Smith arrived after the EMTs left the
site with Mr. Taylor. Mr. Smith was not performing CPR when he was on the phone because Mr.
Taylor had been transported off site at that time (Tr. 70).

Mr. Dawson explained that he did not call MSHA on his way back to the pit because it was his
understanding that the regulation concerned an accident or injury with a likelihood to cause a death. At
that time, he did not believe an accident or injury was involved, no real or immediate danger to
anyone else on site, and he had no knowledge of any death. He considered it an isolated incident and
did not believe it met the criteria for an immediately reportable accident. He further believed the term
"reasonable likelihood" to be "fairly nebulous" (Tr. 70). He agreed that it was possible that someone
receiving CPR might die (Tr. 71).

Mr. Dawson explained his understanding of the language of Section 50.10(b), requiring
immediate reporting of an "injury which has a reasonable potential to cause death". He believed an
"injury" is the result of something physical, such as a fall or broken leg, and that someone "passing
out" may have had a pre-existing condition and he did not believe that would be an "injury". He
confirmed his understanding that the term "accident", as defined by the regulation, means the death of
an individual at a mine (Tr. 74).

Mr. Dawson stated that after returning to the pit he met with Mr. Smith who informed him that
according to the EMTs, Mr. Taylor had a heart attack and had been transferred to Kent General Hospital.
Mr. Dawson stated there were two or three telephone land lines at the scale house and he believed
Tina Jackson made the call from there (Tr. 75). He confirmed that an MSHA poster is located by the
telephone in the library, but could not recall any specific poster and confirmed that they are all posted
in compliance with the federal laws (Tr. 76).

Mr. Dawson confirmed that he did not call anyone after speaking with Mr. Smith because he
did not at that time classify a heart attack, and transporting Mr. Taylor to the hospital, as an accident
"and it was not a death to me at that point. I did not quantify a heart attack as an injury". He did not at
that time speak to any employees who were present during the heart attack (Tr. 76-77).

Mr. Dawson stated after MSHA had been notified, and after Mr. Taylor's brother confirmed
that Mr. Taylor had died, he spoke with Dale Wharff and Tina Jackson while in the process of
securing the site as required by MSHA after their phone call. He confirmed that after receiving phone
calls from Mr. Smith and Ms. Jackson by cell phone while away from the site, he did not have to pull
over because they were incoming calls and he was able to use the hands-free device. He has never
used that device to make outgoing calls (Tr. 76-78).

Mr. Dawson confirmed that when he received the phone calls from Mr. Smith and Ms. Jackson,
he could have asked them, as well as Mr. Holston, to call MSHA "had I known that it was something
that would have fallen under that requirement" (Tr. 78).

Mr. Dawson stated that he called MSHA at 2:42 p.m., approximately 10 minutes after Mr.
Smith received a call from Mr. Taylor's brother informing him of the death. Mr. Dawson was in Mr.
Smith's office at that time (Tr. 79). He met with inspector Hardester when he arrived at the site and
reviewed the event for him and gave him a rough outline and the timelines that Mr. Smith prepared as
part of his incident report He gave the inspector the incident report, the employee statements, and
gave him an accurate account of what happened.

Mr. Dawson stated that he returned to the site after he was off-site because he was informed
the inspector was there and because it was a serious incident that would need management support in
reporting it, and it involved a non-employee passed out in the truck, and that Ms. Jackson and Mr. Smith
informed him that EMS had arrived and left the site (Tr. 81-82).

In response to a suggestion that he knew it was a serious condition because there was a
reasonable likelihood that someone might die, Mr. Dawson responded as follows (Tr. 82-83):

A. No, I wouldn't say that. Just because EMS is on-site, in my mind does
not mean that it has a reasonable likelihood to cause death.

Q. But that is what the standard requires; right? We read that together.

A. Yes, the standard does require that if it has a reasonable likeliness to
cause death, then it needs to be performed, not that EMS has been called, as
written in the standard.

Q. How about if you knew someone hadn't been breathing, would that
be something that you think would be encompassed by the Standard?
Passed out, not breathing.

A. I think it would probably depend on the circumstances
surrounding it It's hard to look at anything in that small, narrow
window.

On cross-examination. Mr. Dawson confirmed that upon his return to the site he met with Mr
Smith at 2:15 or 2:20 p.m., and that Mr. Taylor's brother, Purnell, called at 2:30 p.m. while he and Mr.
Smith were meeting and discussing what had happened. He received a draft report that Mr. Smith
was typing to submit to the safety department. Mr. Dawson stated he did not receive a citation while
he was at the site on the day of the incident because the inspector informed him he did not feel a need
to write one, but would have to return to the office to check (Tr. 84).

Mr. Dawson was recalled by the Secretary. He testified that he knew a Robert Dailey for a
brief period and identified him as the Respondent's safety director. Mr. Dawson confirmed that he was
familiar with MSHA's web site and has relied on it at times to look up a mine history of violations for
his own locations (Tr. 129-130, 135). He confirmed that he has seen an MSHA printout of the
Respondent's violation printout, and noted a contested Citation No. 6062656, 10/10/2008, citing
Section 50.10, and a proposed penalty assessment of $5,000 (Tr. 139).

Darrin Smith, the Respondent's transportation manager, testified that he previously served as a
driver supervisor and a dispatcher, and that while his duties do not include MSHA compliance, he was
recently MSHA certified in February 2012, in the needs to enter MSHA sites. He stated he was not
responsible for any mines in his capacity as the regional transportation manager (Tr. 89). His duties
include supervising the dispatch group to ensure that hired truck haulers are safe and compliant in
delivering material to customers (Tr. 89).

Mr. Smith stated that he did not receive formal MSHA training, but was trained in MSHA
accident reconstruction "and went through this whole process of reviewing the training programs"(Tr. 90). He stated he was in his office on the day Mr. Taylor was found passed out in his truck. Mr.
Dawson called him sometime between 1:05 and 1:15 p.m., and informed him that "somebody passed
out over at the scale house and he informed him that he would go to check it out. Mr. Smith could not
recall that Mr. Dawson informed him that EMS had been called (Tr. 92).

Mr. Smith identified Ex. P-6 as an incident report he prepared from another report filled out by
Dale Wharff, and that he "pretty much took the context of that, copied it and pasted it onto the form (Tr. 94). He prepared the report after receiving a phone call from Purnell Taylor informing him that his
brother passed away and stated "we try to get it as accurate as we possibly can. He would not have
prepared a similar report if Mr. Taylor had survived because a different personal injury report form
would be used (Tr. 95).

Mr. Smith confirmed that Mr. Wharff filled out a personal injury report and that he copied all of
that information onto the report he prepared (Tr. 96). He stated that the report he copied is as accurate
as the same report on file at company headquarters. He explained that while on his way to the scale
house, he observed the fire truck and ambulance arriving and described in detail the scene of the
accident and what was going on. He was keeping everyone away from Mr. Taylor in order to allow
the emergency personnel to work on him and he was directing the incoming truck traffic to keep them
out of the way of any emergency vehicles (Tr. 98-100).

Referring to Mr. Wharff’s report, Mr. Smith stated that Respondent's employees began
performing CPR on Mr. Taylor at 12:45 p.m., and that it was performed by Mr. Wharff and Mr. Taylor's
brother, Purnell, and that they continued doing so until 1:10 p.m. when the first emergency personnel
arrived and took over and continued the process (Tr. 101-102).

Note: At this point in the hearing, and upon inquiry from the Court, Mr. Smith stated that his

incident report (Ex. P-6), that he prepared by copying Mr. Wharff’s report, which speaks in

terms of “I”, "we”, and "us", are actually the words of Mr. Wharff as stated in his report and not

his (Tr. 103-106).

Mr. Smith identified Ex. P-7 as a Personal Injury and Illness Report kept at company
headquarters and confirmed that it was prepared by Mr. Wharff, but he could not state when it was
prepared. Mr. Smith stated that his incident report was prepared at 2:30 p.m., and that the information
on Mr. Wharff s personal injury report is the exact information that is in his serious incident report (Tr. 108). He confirmed that a company employee would be responsible for preparing a personal
injury report, but since Mr. Taylor was not an employee, he had Mr. Wharff, the person closest to the
situation, filled it out because he was responsible for ensuring it is done correctly (Ex. P-7, Tr. 111).

Mr. Smith stated that he was not in the scale house and assumed that Ms. Jackson was still on
the phone with 911. He did not know where Mr. Wharff was, or what he was doing, and assumed he
was not performing CPR after the EMS arrived (Tr. 115). He confirmed that he had a cell phone that
time and made a call to the company safety and health department "to make them aware that we had a
gentleman that was collapsed, and we were administering CPR", and the call would have been made
between 1:15 to 1:30 p.m. (Tr. 117).

Mr. Smith did not believe it was necessarily true to conclude that it was reasonable that
someone receiving CPR might pass away, and 'there's a chance that person can survive and have a
normal living life". The same could be true of anyone found not breathing and "there's always a
chance for anything" (Tr. 118).

Mr. Smith stated he received no phone calls while on site between 12:45 and 2:40 p.m., but
did receive a call from Mr. Dawson between 1:15 and 1:30 p.m., and then called his safety and health
department. He could not have directed Ms. Jackson or Mr. Wharff to call MSHA because he was not
MSHA certified at that time and did not know about the 15 minute rule. He was not in the scale house
and his function was to ensure everyone stayed away (Tr. 121-122).

Mr. Smith confirmed that his dispatch group is located in the scale house and he has been
there. He was unsure whether there is an MSHA poster located by a phone and he stated there was no
library in the scale house (Tr. 123). He stated that when he called the safety department, he spoke with
Dawn Darkes, who was the administrator at that time and is no longer in that position. She did not tell
him to call MSHA and requested him to keep her informed of the situation (Tr. 124-125).

On cross-examination. Mr. Smith stated that he was not "comfortable" about his testimony
concerning the different times related to the events because he was not looking at his watch or writing
anything down. He confirmed he followed the fire truck and ambulance onto the property, the EMS
and fire marshal were already there, and "it was chaotic and traumatic, and it was over two years ago"
(Tr. 127).

Mr. Smith stated that when Mr. Taylor was being placed in the ambulance he asked one of the
EMS members about his condition but received no reply. He was later informed of Mr. Taylor's death
when he received a call from his brother at 2:40 p.m. He confirmed that he gave his brother his phone
number in order to hear about Mr. Taylor's condition.

Dale Wharff. was previously employed by the Respondent as a dispatcher, weigh master, and
scale operator from July 2007, until he was laid off in January 2012. He served as a dispatcher on
October 8, 2010, from an office trailer next to the scale house. He stated that Mr. Taylor's brother,
Purnell, found him passed out in his truck and yelled to call an ambulance. Mr. Wharff called for an
ambulance, handed the phone to weigh master Tina Jackson, helped remove Mr. Taylor from the truck,
and he and Purnell proceeded to do heart compressions. He estimated they started sometime after

12:30 p.m. and he and Purnell alternated with CPR (Tr. 146-149).

Mr. Wharff stated that he and Purnell alternated with CPR because it was difficult for one person
to keep up the compressions. Ms. Jackson was on the phone speaking with the emergency operator
keeping her aware of what was going on and the operator wanted to keep her on the line until someone
was on-site. He stated that no one else was in the scale house at that time, and when a fire marshal
arrived, he took Mr. Taylor's vitals and administered an electrical shock with a defibrillator and
monitored him with pads. He stated that Mr. Taylor had foam in his mouth and he could not tell if
he was breathing (Tr. 151).

Mr. Wharff did not know what Ms. Jackson was doing in the scale house after the fire marshal
arrived and was working on Mr. Taylor. He did not know if she called anyone else other than the EMS,
and that Darrin Smith was not present at this time and arrived later when the ambulance and fire trucks
arrived. At that point, Mr. Smith was talking on the phone, but Mr. Wharff did not know who he was
speaking to (Tr. 152).

Mr. Wharff identified Ex. P-7, as a transcript of a personal injury report he prepared on October 8, 2010. He confirmed that he prepared the typed narrative paragraph in the middle of the
report but did not know who filled in the rest of the report. He sent the information to Darrin Smith
after receiving an email asking him to do so (Tr. 154). He believed he finished the report at 2:30 p.m.,
and was sent home. He did not know that day that Mr. Taylor had died and he had prepared and
emailed the report to Mr. Smith before leaving (Tr. 155).

Mr. Wharff stated that after the ambulance took Mr. Taylor to the hospital, six trucks were lined
up at the scale to leave with their loads and he monitored the phones while Ms. Jackson was
operating the scales to process the trucks that were there (Tr. 155). He confirmed that the pit site has a
multiline land phone for customer service and he had a cell phone the day of the accident and it was on
his desk and not with him. He did not place or receive any phone calls that day between 12:45 and
2:42 p.m. No one told him to call MSHA, he heard no one discussing a phone call to MSHA, or to
the company safety or health office (Tr. 156).

On cross-examination. Mr. Wharff guessed that he and Purnell Taylor administered CPR on his
brother for 20 to 25 minutes after the fire marshal arrived at the scene. He explained that his
experience performing CPR on Mr. Taylor was traumatic, that he was distraught and "it's something
you react to quickly", and that reporting the accident was "not what was on my mind at that point in
time". He stated that he had performed CPR on his four-year old son prior to October 2010, when he
fell out of a third-story window, and knew that he had to react. Given the same circumstances, he
would do it again, notwithstanding knowing MSHA's 15-minute rule (Tr. 161).

Mr. Wharff stated he was aware of a state transportation department regulation related to a report
but was not aware of MSHA's 15-minute accident response regulation. He stated there is no bulletin
board in the scale house with different state or Federal notices. He confirmed he was laid off because
the Respondent purchased an interest in another company who brought in its own personnel (Tr. 162).

The Secretary's Arguments

The Secretary states that Curtis Taylor suffered a heart attack at the mine weight scale, and
that his brother Purnell was in a truck behind him, and after pulling Curtis from the truck, he and
employee Dale Wharff and truck driver Mark Colburn attended to Curtis. Mr. Wharff contacted the
EMS at 12:45 p.m., and ten minutes later he and Purnell began performing CPR on Curtis until EMS
arrived at 1:03 p.m. At that time, the EMT's took over performing CPR from Mr. Wharff and Purnell,
and then discontinued CPR and used a defibrillator.

The Secretary states that at approximately 12:45 p.m., employee Tina Jackson called Jeff
Dawson and informed him that Curtis Taylor had been found passed out in his truck, that he had
suffered a heart attack and that a call to 911 had been placed. Jackson did not call MSHA. The
Secretary asserts that Mr. Dawson was at another Respondent mine with employee Ed Holston and
despite having the capability to make and receive phone calls, Dawson, who is the person with the
most knowledge of MSHA compliance and has attended multiple MSHA training, did not instruct
Jackson to call MSHA and report Curtis Taylor's injury.

The Secretary states that at the hearing Dawson claimed that he believed that no call was
necessary because he did not think that an accident or injury with a likelihood to cause a death had
occurred (Tr. 70). However, Dawson admitted that he knows that if CPR is being performed, there
is a possibility that the person will die. The Secretary asserts that while Dawson was on the phone
with Jackson, transportation manager Darrin Smith was on mine property and that at approximately
1:10 p.m. Dawson called him and informed him that someone had passed out at the weight scale. At
that time, Smith was responsible for filling out incident reports and notifying the corporate office if
an accident occurs, but he did not call MSHA from his desk. Instead, he drove to the weight scale as
the ambulances were driving into the mine.

The Secretary argues that although Smith knew that CPR had been administered, and that EMTs
were continuing to render aid, he did not provide first aid and that once he arrived at the accident
scene, he directed traffic. Between 1:10 p.m. and 1:30 p.m., Smith telephoned the Respondent's
Safety Department and informed the department that a man had collapsed on mine property and that
CPR was being rendered. Despite having access to a phone, and despite having rendered no aid to
Taylor, Smith never made the required call to MSHA.

The Secretary states that after Curtis Taylor was taken to the hospital, the mine continued its
business as usual. Smith instructed Wharff to write up a "serious incident report", and Wharff then
went back to his dispatching job. The Secretary concludes that despite the fact that Curtis

Taylor was not breathing, two rounds of CPR and defibrillation had been unsuccessful, and Taylor had
been transported to the hospital, no one at the mine made the required call to MSHA. The Secretary
points out that Curtis Taylor was pronounced dead at the hospital at 1:56 p.m., and that once Mr.
Dawson learned that he had passed away, he called MSHA at 2:42 p.m., one hour and 32 minutes
after Purnell Taylor and Dale Wharff began performing CPR on Curtis Taylor, and one hour and 11
minutes after the ambulance took him to the hospital.

The Secretary concludes that although required to do so within 15 minutes, theRespondent failed to alert MSHA about the accident until one hour and 32 minutes after its manager
knew that Curtis Taylor had stopped breathing and knew that CPR was being performed on the prostrate,
non-responsive miner. The Secretary concludes that because multiple people had many opportunities
to timely notify MSHA, its conduct violated 30 C.F.R. § 50.10(b), and constituted an egregious delay
that supports a "High" negligence level and warrants a civil penalty assessment of $5,000.

The Secretary argues that the standard, Section 50.10(b), plainly requires that a mine "operator
shall immediately contact MSHA at once without delay and within 15 minutes at the toll-free
number... once the operator knows or should know that an accident has occurred involving... an
injury to an individual at a mine which has a reasonable potential to cause death." Section 50.10(b) is
triggered once an accident occurs. Section 50.2(h) defines an "accident" as an injury to an individual at
a mine which has a reasonable potential to cause death.

The Secretary asserts that Curtis Taylor's heart attack was an injury with reasonable potential to
cause death, and that it was a reportable accident that need not be caused by occupational factors;
instead, the "nature" and "act" of the accident must be only evaluated as to whether they had a
reasonable potential to cause death, citing Cougar Coal Co. Inc.. 25 FMSHRC 513, 520 (Sept. 2003).
The Secretary further cites the Court decisions in Standard Sand and Silica Co., WL 6880704 (ALJ
Dec. 2011), and E.S. Stone & Structure. 33 FMSHRC 515 (ALJ Jan. 2011), holding that an injury at a
mine that requires CPR constitutes an "injury" which has a reasonable potential to cause death that
requires reporting to MSHA pursuant to Section 50.10(b).

The Secretary concludes that there is no dispute that Curtis Taylor suffered a heart attack that is
an "injury... which has reasonable potential to cause death", and that neither the language of the
statute nor relevant case law distinguishes between injuries which occur due to work hazards. The
Secretary points out that separate standard, Section 50.1(e) defines "occupational injury" and
"occupational illness" and that a violation of Section 50.10(b) is established regardless of whether the
accident was work related or non-work related.

The Secretary argues that violations of Section 50.10(b), in the Standard Sand and E.S. Stone
cases, supra, were virtually identical to the instant case before the Court. She states that in Standard
Sand a mine manager arrived while the EMTs were performing CPR on the victim. EMTs performed
CPR for approximately half an hour until the victim was loaded into an ambulance, and he was
pronounced dead at the hospital. In E.S. Stone, the victim also suffered a heart attack at the mine site.
His co-workers and then EMT workers performed CPR on the victim at the mine in the presence of the
victim's supervisor. The victim was then taken to a hospital, where he was pronounced dead.

The Secretary maintains that the fact that Curtis Taylor was found by Respondent's employees to
be unresponsive and breathing, and that employees and EMTs performed CPR in an attempt to revive
him indicates that his injury had a reasonable potential to result in death and that the Respondent should
have known that this was the case. Under the circumstances, the Secretary concludes that the
Respondent is without excuse regarding its failure to timely report the accident.

The Secretary argues that the language of Section 50.10(b) is clear and does not depend on a
manager's individual judgment as to what constitutes an "injury", and points out that the cited standard
does not speak in terms of probability with no requirement that death be the more likely result of an
injury. She further argues that the ordinary meaning of the word "potential" is something "capable of
being", or which presents the "possibility" that something might occur in the future, and that Dawson
and Smith admitted that someone could die as a result of unsuccessful CPR.

The Secretary concludes that the word "reasonable" qualifies that the "potential" for death to
occur as a result of the injury must be reasonable or "not far-fetched", and that there is a reasonable
potential for death when someone suffers a heart attack and does not immediately respond or receives
emergency lifesaving procedures.

The Secretary asserts that the Respondent's trial testimony (Tr. 70), that no reportable accident
occurred because it believed that only deaths were reportable, is erroneous in that a death of an
individual at the mine is covered by Section 50.10(a), and not the cited Section 50.10(b), in this case.
Likewise, citing the E.S. Stone decision supra, holding that a heart attack itself was a reportable
accident, the Secretary rejects that Respondent's argument that no injury occurred because there was no
physical or work-related action which led to the injury and that a reportable injury cannot be due to a
pre-existing condition (Tr. At 70).

The Secretary takes issue with the testimony of Dawson that at the time he received a phone
call from Smith, he did not believe the accident was reportable because, among other things, there was
no immediate danger to anyone, and points out that the reporting requirement is not dependent on any
immediate danger to any one else, and does not include any exceptions or exemptions for naturally
occurring heart attacks at mines.

The Secretary maintains that it is clear from the history of Section 50.10 that MSHA intended
to remove any exception to the 15-minute reporting requirement. The emphasis is on reporting to
MSHA as soon as possible, Cf. Cougar Coal. 25 FMSHRC at 521 ("the decision to call MSHA must
be made in a matter of minutes.").

The Secretary rejects Dawson's belief that the requirements of the standard were "fairly
nebulous" (Tr. 70). She finds no support for any misinterpretation, and states that if an operator is
unclear as to whether or not a reportable accident has occurred, that operator must err on the side of
reporting, Newmont USA Ltd. 32 FMSHRC 391, 396 (ALJ April 2010). Further, the Secretary refers
to the fact that several phone calls were made to Respondent's managers and that Dawson instructed
Smith to head to the accident scene. The Secretary concludes that these actions contradict Dawson's
assertion that he did not believe there was a reasonable potential for Curtis Taylor to die.

The Secretary asserts that even if Dawson did not believe that a heart attack was an injury as
defined under the standard, the standard requires reporting in cases where the operator should have known
that a reportable accident had occurred. She argues that the Respondent should have known that there
was a reportable accident because Taylor was unresponsive and not breathing, employees performed
CPR, and EMTs performed emergency life saving procedures, citing Mainline Rock and Ballast Inc.
v. Sec'y of Labor. 2012 WL 1111258, at *6 (10th Cir. 2012). The Secretary maintains that at any of
these moments they knew, or certainly should have known, that Taylor had suffered an injury which
had reasonable potential to cause death.

The Secretary argues that the Respondent's argument that no injury or illness had occurred is
undermined by its own internal reporting policy for injuries and illnesses. She points out that after the
ambulance left mine property, Smith instructed Wharff to write an incident report, and that Smith
admitted that it is company policy to write up this report whenever there is an injury or illness. While
Taylor was receiving CPR, Smith also called the Respondent's corporate office. The Secretary
suggests that placing a call to MSHA to report the same accident would have required no additional
effort on the part of the Respondent, and that its belief that no reportable accident occurred is
unreasonable and far-fetched.

Finally, the Secretary concludes that the Respondent did not contact MSHA within 15 minutes
of learning of Curtis Taylor's heart attack, and called only once after he was pronounced dead and
almost two hours after he was found unresponsive and not breathing in his truck.

Conceding that before the fifteen minute reporting requirement is triggered, an operator may
take time to investigate an accident, the Secretary states that the standard preamble and case law make it
clear that any investigative efforts by an operator are only to determine whether an accident has
happened, 71 FR 12260; Standard Sand, supra. In the case at hand, the Secretary asserts that
Respondent's management did not need to investigate whether an accident had occurred because the
employees were so concerned about Mr. Taylor's condition that they immediately called 911 and
began performing CPR. Accordingly, the Secretary concludes that it was clear than an accident had
occurred and no management investigation was necessary.

In response to the Respondent's arguments that in order to call within 15 minutes it would have
had to stop providing CPR to Mr. Taylor, the Secretary asserts that such an interpretation of the standard
"would lead to absurd results", and the standard "requires no such thing". The Secretary concludes that
giving any weight to the Respondent's argument, one would have to believe that only one individual,
Wharff, the only employee performing CPR, was capable of calling MSHA.

In support of her arguments, the Secretary asserts that at the hearing the Respondent admitted
that there were at least three employees, Smith, Dawson, and Holston, who were neither investigating
whether an accident had occurred, nor providing lifesaving measures. Further, the Secretary states
that Respondent's employees telephoned people between the time Curtis Taylor was discovered and
the time they found that he had died, and that any of these individuals could have also called MSHA.
She states it is undisputed that once EMS arrived onsite and took over CPR from the employee, they
were free to call MSHA. Moreover, the ambulance took Taylor away at approximately 1:31 p.m.,
and that at that time there were at least five employees who could have called MSHA within the
required 15 minutes.

With regard to the "High" negligence determination associated with the alleged violation, the
Secretary relies on the 'inordinate delay" of two hours from the time Mr. Taylor was found
unresponsive to the time it was reported to MSHA, coupled with the number of people who were
available to call MSHA, but only one called instead, clearly supports the High negligence
designation.

In support of her negligence arguments, the Secretary states that there were at least four
employees who were not performing life-saving procedures who failed to call MSHA within 15
minutes after discovering Mr. Taylor not breathing in his truck. Immediately after the accident
occurred, Jackson informed Dawson that Taylor was found passed out in his truck and that 911 was
onsite (Tr. 67-68). Dawson and Holston then drove up from Respondent's mine in Maryland (Tr. 67).
During their almost two hour drive up to the pit, both Dawson and Holston had cell phones (Tr. 69).
Neither one of them placed a call to MSHA.

The Secretary states that Dawson, the person with the most knowledge of MSHA compliance
and has attended multiple MSHA trainings, also did not instruct Jackson to call MSHA even though
she clearly had access to the phone she used to call them (Tr. 67,74). Employees Smith, Jackson, and
Wharff, who were in the mine also did not call MSHA. As a manager, Smith was responsible for
providing written accident reports and accident updates to the corporate office (Tr. 107). Smith
testified that after EMS arrived, they took over all life-saving efforts and he resorted to directing
traffic (Tr. 99). Smith also observed as Mr. Taylor was loaded into the ambulance, thereby ending any
possible injury-related activities at the worksite (Tr. 101,117), Smith never called MSHA, but he
called Respondent's Safety and Health division (Tr. 117).

The Secretary described the routine work activities of employees Smith, Wharff, and
Jackson, and argues that any of them could have complied with MSHA's simple reporting
requirements. The Secretary asserts that the Respondent's argument that only Wharff was able to call
MSHA is undermined by the fact that employees placed three non-emergency phone calls from the
time they discovered Mr. Taylor was not breathing to the time they called MSHA. First, Jackson called
Dawson immediately after calling 911. Second, Dawson called Smith to alert him of the accident at
the mine. Finally, Smith called his safety department. The Secretary concludes that these calls show
that the Respondent knew that Curtis Taylor's injury was serious and had reasonable potential to cause
death. However, Respondent only chose to report the incident internally and made no effort to comply
with MSHA's mandatory requirement.

The Respondent's Arguments

Although the Respondent denies that it violated the cited standard, it nonetheless takes the
position that if the Court should find that a violation has been established, the Court should find in its
favor and find no negligence on its part and assess a nominal civil penalty. In support of this
argument, the Respondent believes that the Secretary has attempted to establish a technical violation
"based on a strict liability regime that is unforgiving and does not account for common sense."

The Respondent asserts that contrary to the Secretary's actions in this case, it not only acted in
good faith and without delay in attempting to save the life of Mr. Curtis Taylor, who had a heart attack
under very traumatic circumstances, it reported the death of Mr. Taylor within fifteen minutes of
conclusively knowing that it had experienced a reportable incident.

Recounting the events on October 8, 2010, the Respondent states that Mr. Taylor's brother,
Purnell Taylor, discovered him passed out in his vehicle at the scale house some time after 12:30
p.m., and yelled into the scale house for an ambulance. Employee Dale Wharff, who was in the scale
house, called 911, reported what was occurring, and asked for an ambulance. Responding to Purnell
Taylor's call for help, Mr. Wharff handed the phone to scale house employee Tina Jackson, the only
other employee present, and then proceeded to help pull Curtis Taylor out of the truck.

Respondent asserts that Mr. Wharff alternated with Purnell Taylor in performing heart
compressions (CPR) for approximately 25 minutes, while Tina Jackson was on the phone with 911
keeping the line open and relaying information back and forth. Respondent points out that after 25
minutes, the fire Marshall arrived and assisted with the care of Curtis Taylor.

The Respondent states that Mr. Wharff testified that even if he knew that MSHA would
require him to call within 15 minutes of starting CPR, he would not have done anything differently.
The Respondent strongly suggests that prioritizing contacting MSHA over saving a man's life, as
"suggested" by the Secretary as the appropriate course of action in this case, "is not right", particularly
when there was no hazard created or risk of harm to other persons who were present

With regard to the role of Jeff Dawson, the Respondent's general manager who testified that he
served in that position for approximately six weeks at the time of the hearing and was the aggregates
operation manager on October 8,2010, the Respondent asserts that he was the only MSHA certified
employee working that day.

The Respondent asserts that Mr. Dawson was approximately an hour to an hour and fifteen
minutes away from the pit site when he learned that Curtis Taylor had passed out in his truck on mine
property and immediately returned to the mine in order to be there in his managerial capacity and arrived
at approximately 2:20 p.m. Prior to his arrival, Respondent asserts that based upon the limited
information that he had at that time, Mr. Dawson did not believe that the incident met the criteria for
immediately reporting the accident.

The Respondent states that after arriving at the mine, Mr. Dawson met with transportation
manager Darrin Smith, who testified that he was not MSHA certified until February, 2012, in order
to learn the information he had gathered as part of his initial accident reconstruction investigation
pursuant to his MSHA training.

Mr. Smith was in his office on the day that Curtis Taylor was found passed out in his truck
when he received a call from Purnell Taylor informing him of his brother's death. Mr. Dawson was
with him at that time and he called MSHA at 2:42 p.m., to report the incident, approximately 10
minutes after Mr. Smith received the call from Purnell Taylor, less than 15 minutes later. Mr.
Dawson continued to gather additional information about the incident to review the facts.

With regard to the role of the inspector in this case, the Respondent states that he did not
arrive at the mine until the evening of the incident and stated that he did not feel a need to issue a
citation at that time because he needed to return to his office and check, citing transcript reference
pg. 84. However, that statement was made by Mr. Dawson and not the inspector. The inspector
testified that he did not make such a statement (Tr. 49).

The Court notes that the inspector testified credibly that he issued the citation at 7:30 a.m. on
October 12, 2010, citing a violation of Section 50.10(a), and that he modified it to cite a violation of
Section 50.10(b), because he initially cited an incorrect section, and issued it on October 12th,
because October 8th was a Friday and he did not receive his documentary paperwork until Monday
when he served the citation on Mr. Dawson (Tr. 36-37).

The Respondent asserts that the inspector mistakenly believed that employees Dale Wharff
and Darrin Smith, as well as Purnell Taylor, were performing CPR on Curtis Taylor, and that he
based his high negligence finding on his mistaken belief that three people were performing CPR
and one employee (Tina Jackson) was making phone calls. The Respondent argues that the inspector
concluded it should have called MSHA within 15 minutes of starting CPR because he believed that
to be the rule. The Respondent further states that the inspector was unable to articulate the purpose or
goal of the reporting rule and simply concluded "that's what the regulation states", and "that's what
Congress decided. Ask them" (Tr. 53). The Respondent cites the inspector's testimony agreeing
that it acted in good faith in handling the subject incident and was not attempting to avoid
compliance or a citation (Tr. 56-58).

The Respondent concludes that during the time frame from the discovery of Curtis Taylor passed
out in his truck until Jeff Dawson contacted MSHA to report his death there was no unreasonable delay
because acting in good faith in handling a traumatic situation, it contacted Emergency Medical Services,
performed CPR on Mr. Taylor, assisted in rendering aid, and ensured there were no immediate dangers
to other miners. Further, the Respondent asserts that Mr. Taylor died from coronary artery disease, a
non-occupational illness, and not any work-related act or occurrence that posed danger to other
miners.

The Respondent points out that although Mr. Dawson contacted MSHA at 2:42 p.m., the
inspector did not arrive at the mine until 5:30 p.m., 3 hours after the incident was reported. The
Respondent concludes that MSHA would not have benefitted from any knowledge that CPR was being
performed within 15 minutes of the initiation of CPR versus knowing of the incident within 15
minutes of the Respondent conclusively knowing it had experienced a reportable incident. There was
no hazard created and it was a non-occupational illness unrelated to any activities at the mine.

The Respondent concludes that in adopting the 15 minute reporting requirement, MSHA
recognized that there would be situations, such as the instant case, "where the strict application of its
rule would create a ridiculous result". In support of its argument, the Respondent cites MSHA's
"common sense" position during the adoption of the final rule as reported at 71 Fed. Reg. 236, 71435
(Dec. 8, 2006), which states as follows:

If a situation were to arise involving extenuating circumstances, such as

an operator having to choose between saving someone's life and notifying

MSHA, enforcement discretion would take those circumstances into

account MSHA does not expect that an operator who has to make a

decision between rendering life-saving assistance and calling MSHA

would be penalized for providing that assistance.

The Respondent concludes that the Secretary has focused more on winning this case than on the
big picture, has not demonstrated common sense in pursuing this case, and that its proposed
application of the standard is illogical and contrary to the prioritization of the health and safety of
miners. The Respondent further concludes that the inspector's mistaken belief as to important facts in
support of his high negligence finding, his lack of understanding of the Standard and how it should be
applied, and his lack of awareness that he has enforcement discretion all support the fact that he issued
the citation when he should not have.

Finally, in summarizing its defense in this case, the Respondent maintains that the Secretary
has not established a violation because it did not conclusively know that a reportable incident had
occurred until Darrin Smith received the phone call from Purnell Taylor at 2:30 p.m. MSHA's
documentation indicates that a call from Respondent came in to MSHA at 2:42 p.m., reporting the
death of Curtis Taylor, which was less than 15 minutes later.

FINDINGS AND CONCLUSIONS

Fact of Violation

Mandatory accident reporting standard 50 C.F.R. § 50.10, states in relevant part as follows:

The operator shall immediately contact MSHA at once without delay
and within 15 minutes at the toll-free number, 1-800-746-1533, once
the operator knows or should know that an accident has occurred
involving:

1.         A death of an individual at the mine;

2.         An injury of an individual at the mine which has a reasonable
potential to cause death.

Section 50.2(h)(1), Title 30, Code of Federal Regulations, defines an "accident" as "a death of
an individual at a mine." In this matter the citation initially alleged a violation of Section 50.10(a), for
failing to report, within fifteen minutes, "a serious accident that resulted in a fatality" (Ex. P-2). The
citation was subsequently modified by the inspector to reflect an alleged violation of Section
50.10(b), and I find that the previously described alleged condition or practice stating "management
was aware of the incident having reasonable potential to cause death," has been incorporated by
reference. The Secretary's motion to plead in the alternative to cite Section 50.10(b) was granted on
October 12, 2011.

Section 50.10(b) requires the reporting of an injury that has a reasonable potential to cause
death within 15 minutes. There are no exceptions to the 15-minute rule, and the aforementioned cited
Commission case law reflects that covered accident incidents requiring cardio-pulmonary resuscitation
(CPR), ipso facto constitute "injuries which have a reasonable potential to cause death," and must be
reported within 15-minutes of initiating CPR. The citation, on its face, states that Mr. Taylor was found
not breathing at 12:40 p.m., that CPR was started at 12:45 p.m., MSHA was not called until 2:42 p.m.,
"one hour and fifty-seven minutes later".

The Secretary's arguments that the prevailing circumstances that prompted the issuance of the
violations of Section 50.10(b), in the Standard Sand and E. S. Stone cases are "virtually identical to
the instant case before the Court", are not well-taken. The Secretary states that in Standard Sand, a
mine manager arrived at the scene while the EMT's were performing CPR on the victim, and that in E.
S. Stone. EMS workers performed CPR on the victim in the presence of the victim's supervisor.

Cougar Coal Co.. Inc. 25 FMSHRC 513 (Sept. 5, 2003) involved a serious accident in which
a miner received a severe electrical shock, sustaining serious injuries that required CPR and
hospitalization. The CPR was performed by a foreman, a management position, and the miner
apparently lost his pulse while CPR was being performed. The Commission took particular note of the
fact that CPR was performed by a foreman and imputed the knowledge that the miner lost his pulse to
the operator.

The Secretary argues that there were multiple instances when the Respondent knew or should
have known that it had experienced a reportable accident The Secretary states that the first instance was
at 12:45 p.m. when Mr. Taylor was found unresponsive and not breathing, a condition that should
have been reported within 15 minutes of his discovery. The second instance cited was at 12:55 p.m.,
when Mr. Wharff and Mr. Taylor's brother performed CPR.

The inspector testified that he based his high negligence finding on his belief that there were
"enough people" at the scene that could have called MSHA without stopping CPR. He stated that
three people were performing CPR, and he identified them as Respondent's employees Dale Wharff and
Darrin Smith, and Mr. Taylor's brother, who was not an employee (Tr. 43).

In response to a question whether the two employees were both performing CPR, the
inspector stated "they were both present" (Tr. 43). In response to the Court's inquiry if they were both
performing CPR "in tandem, or all at one time" he responded he could not answer, "but they were both
assisting in the CPR" (Tr. 44). He further confirmed his high negligence finding was based on three
people performing CPR, namely the two employees he identified and Mr. Taylor's brother. He
identified a fourth person as Tina Jackson who was on the telephone in the scale house calling for
emergency assistance (Tr. 44), (Ms. Jackson did not testify in this case.)

The Respondent's accident report prepared by Mr. Wharff reflects that three people came to the
immediate assistance of Curtis Taylor, namely Mr. Wharff, Mr. Taylor's brother, and Mark Colburne.
Mr. Colburne was not employed by the Respondent and did not testify, and Mr. Smith's name is not
mentioned (Ex. P-7).

The Description of Accident report prepared by Mr. Smith gives the appearance that he was
present and helped remove Mr. Taylor from his truck and actively participated in the administration of
CPR at the scene (Ex. P-6). However, as previously noted, Mr. Smith, in response to the Court's
inquiry for clarification, stated that his report was prepared by copying Mr. Wharff’s report, and that
the use of the words “I”, "we", and "us", are actually the words of Mr. Wharff as stated in his report
and not his (Tr. 103-106).

Mr. Smith testified credibly that he was in his office and not at the scale house when Mr.
Taylor was found unresponsive in his truck and that Mr. Dawson called him between 1:05 and 1:15
p.m., and informed him that "somebody passed out at the scale house". He further testified that he was
not MSHA certified at that time and did not know about MSHA's 15 minute reporting rule. There is
no testimony from Mr. Smith that he performed CPR and on cross-examination, he was not asked.
In this regard, I note that the Secretary's arguments that at least four employees were not
performing life-saving procedures included Mr. Smith.

Mr. Dawson testified credibly that he called Mr. Smith on his way back to the site after he
received the call from Tina Jackson from the scale house and he understood that Mr. Smith arrived after
the EMT's left the site with Mr. Taylor and that he was not performing CPR when he spoke to him
because Mr. Taylor had been transported off site (Tr. 67,70).

I conclude and find that the inspector's testimony that three people were conducting CPR on Mr.
Taylor is not credible. To the contrary, I conclude and find that the credible evidence establishes that
only two people were immediately performing CPR on Mr. Taylor, namely Mr. Wharff, an employee,
and Mr. Taylor's brother, who was not an employee.

With regard to Mr. Taylor's brother, since he was not an employee, I find he had no obligation
to call MSHA. Further, even if he were an employee, I cannot conclude that it would be reasonable to
expect him to interrupt his CPR efforts to call MSHA under the rather traumatic circumstances that
prevailed with respect to his brother's condition at that time.

With regard to Mr. Wharff, the inspector could not recall that he performed CPR for 25 minutes
with the 911 phone line open to receive emergency medical instructions. The inspector agreed that if
this was true, he would not have expected Mr. Wharff to hang up, or put the 911 call on hold, in order
to call MSHA to verify that he was performing CPR (Tr. 55-56).

Mr. Wharff testified that while he was aware of a state transportation department rule related to
accident reporting, he was not aware of MSHA's 15-minute reporting rule. He candidly admitted that
even if he were aware of that requirement, in view of an emergency situation that occurred prior to
October 2010, when he had to quickly react and administer CPR on his four-year old son who had
fallen from a third-story window, he would again react in the same manner, notwithstanding any
knowledge of MSHA's 15-minute rule.

I find no credible evidence of the presence of any management personnel at the immediate
scale house weigh station scene at the time Mr. Taylor was removed from his truck shortly after
12:30 p.m. on October 8, 2010. I further find no credible evidence that any management personnel
participated in the CPR process, or were immediately present at the scene observing the CPR efforts of
Mr. Wharff, who at that time was employed as a non-management dispatcher working from an office
trailer next to the scale house, and Mr. Taylor's brother, who was not employed by the Respondent. I
further find that an individual in a management position' has a higher level of responsibility and
expectation to be aware of the reporting requirements of the standard than a rank-and-file miner
whose duties may not bestow that responsibility on him.

I conclude and find that from the time Mr. Taylor was removed from his truck and was found
unresponsive and not breathing at 12:45 p.m., when Mr. Wharff contacted the EMS, and handed off his
CPR efforts to the EMS at 1:03 p.m., Mr. Wharff and Tina Jackson were the only employees at the
immediate scene at that time.

Ms. Jackson, who did not testify, was on the telephone monitoring emergency instructions
and Mr. Wharff was actively engaged in administering CPR to Mr. Taylor. Under the circumstances, I
find that it was not reasonable to expect them to cease what they were doing to call MSHA within
the 15-window required by the regulation.

The Secretary cites additional instances when the Respondent could have also called MSHA,
namely, at 1:00 p.m., when employees were relieved from performing CPR; at 1:31 p.m., after
observing the EMT's performing emergency lifesaving procedures; and finally, no later than when the
Respondent had a duty to report the accident to MSHA when the ambulance left with Mr. Taylor at
1:46 p.m.

The Secretary asserts that employees Smith, Dawson, and Holston, who were neither
investigating whether an accident had occurred nor providing lifesaving measures, knew that Mr. Taylor
had a heart attack and that there was a reasonable potential for death because CPR and other emergency
efforts were taking place, and they were available to call MSHA but did not do so within the required
fifteen minutes. The Secretary further argues that since Jackson, Dawson, and Smith made non-emergency phone calls from the time Mr. Taylor was found unresponsive and not breathing to the
time MSHA was called, they were available to immediately make the calls.

The Secretary states that Jackson called Dawson immediately after the 911 call was made

(Tr. 65); Dawson called Smith to alert him of the accident (Tr. 69); and that Smith called the
Respondent's safety division (Tr. 117). The Secretary does not state that these employees were aware
of the fact that CPR had been performed on Mr. Taylor when the calls were made shortly after he was
removed from his truck.

There is no evidence that Tina Jackson, who did not testify, informed Mr. Dawson that CPR
was administered when she called him. Mr. Dawson testified credibly that she did not inform him of
any CPR (Tr. 67). Although she told him that EMS had been called, he did not believe that the
standard required immediate notification to MSHA based on that fact alone (Tr. 82).

Mr. Smith testified credibly that Mr. Dawson called him at approximately 1:05 to 1:15 p.m. to
inform him that someone had passed out at the scale house, but he could not recall that he was told that
EMS had been called (Tr. 92). Mr. Smith stated that he then called the Respondent's safety
department between 1:10 to 1:30 p.m., to make them aware of the fact that CPR had been
administered (Tr. 117). He took the position that he could not have directed Ms. Jackson or Mr.
Wharff to call MSHA at that time because he was not MSHA certified and was not aware of MSHA's
15-minute reporting requirement (Tr. 122).

With regard to Mr. Holston, the record reflects that he was employed as a sales representative
and was with Mr. Dawson away from the mine when he received the call from Ms. Jackson (Tr. 63).
Mr. Holston did not testify in this case and although he had a cell phone with him while traveling with
Mr. Dawson, there is no evidence that he was aware of the reporting requirements or had any
information or direct connection with the events that transpired at the time of the accident Accordingly,
the Secretary's attempt to include him in this scenario is rejected.

Although Mr. Smith and Mr. Dawson, who were in management positions, testified
credibly that they were not informed that CPR was performed on Mr. Taylor when he was
initially removed from his truck, they were subsequently informed that this was the case.

Mr. Smith testified that he did not initially believe that the incident was a fatality because Mr.
Taylor had survived (Tr. 95-96). He confirmed that he knew that CPR had been performed on Mr.
Taylor at 1:10 p.m., when the EMT personnel and ambulance arrived (Tr. 102). He also stated that
when he placed a call to his safety department between 1:15 and 1:30 p.m., he informed them "we
were administrating CPR" (Tr. 116-117). Mr. Smith further testified that he did not necessarily
believe that it was reasonable to conclude that anyone receiving CPR might die because "that person
can survive", he nonetheless conceded that someone undergoing CPR could die (Tr. 117-118).

Notwithstanding Mr. Smith's assertion that he could not have directed Ms. Jackson or Mr.
Wharff to call MSHA because he was not MSHA certified and was not aware of the reporting rule,
he did report the incident to his safety department because that was part of his managerial
responsibility. I find that he had an opportunity at that time to place a call to MSHA, or to at least make
an inquiry with his safety department as to whether such a report was required.

With regard to Mr. Dawson, I have considered the fact that he was away from the mine when
he received the initial phone call from Ms. Jackson informing him of the incident and that he
immediately returned to the mine after calling Mr. Smith who was closer to the scene and would be
available to further look into the matter.

Mr. Dawson testified that the initial phone calls from Mr. Smith and Ms. Jackson were
incoming calls over his automobile’s hands-free device, connected to his cell phone, and there was
no need for him to pull over on his way back to the mine to use his cell phone (Tr. 66). Although he
stated that he never used the hands-free device to make outgoing calls while driving, he conceded
that he could have pulled over to make a call, and could have asked Mr. Holston to make a call. He
also stated that he could have asked Ms. Jackson to place a call if he knew that the incident was
covered by the regulation (Tr. 77-78).

Mr. Dawson explained that his decision not to call MSHA while returning to the mine was
based on his understanding that while the reporting regulation concerned an accident or injury with a
likelihood to cause death, he did not at that time believe that an accident or injury exposing anyone
other than Mr. Taylor to danger had taken place, and his lack of any knowledge that a death had
occurred (Tr. 70). He further believed that an "injury" is the result of a physical condition such as a fall
or broken leg; that someone passing out may have had a pre-existing condition; and that the term
"accident" as defined by the regulation means the death of an individual at the mine (Tr. 74).

I find that Mr. Dawson's understanding of the term "accident" found in Section 50.10, and its
application to the facts of this case, is incorrect. The death of an individual at a mine is required to be
reported pursuant to Section 50.10(a). The Respondent in this case is charged with a violation of
Section 50.10(b), not Section 50.10(a). With regard to Mr. Dawson's understanding of the term
"injury", Section 50.2(h)(2), defines an "accident" as an "injury to an individual at a mine which has a
reasonable potential to cause death", the identical language found in the cited Section 50.10(b).
Webster's New World Dictionary of the American Language. Second College Edition, defines an
"injury" as "physical harm or damage to a person".

Mr. Dawson confirmed that Ms. Jackson informed him that Mr. Taylor had passed out in his
truck, that he apparently had a heart attack, and that he was going to be taken to the hospital (Tr. 67). He
also confirmed that when he returned to the mine, Mr. Smith informed him that Mr. Taylor had a heart
attack and was taken to the hospital (Tr. 76). Although Mr. Dawson was not informed that Mr. Taylor
had received CPR before returning to the mine, he believed that it was possible that someone receiving
CPR might die, and that he returned to the mine because he knew that Mr. Taylor had passed out in his
truck and that it was a serious incident that required management support to report it (Tr. 71,81).

The evidence in this case establishes that Mr. Taylor was unresponsive, passed out, and not
breathing when he was removed from his truck, that CPR was administered, and he was then taken to
the hospital. Under these circumstances, I conclude and find that he suffered an injury that included
physical harm and damage to his person.

I reject the Respondent's argument that a violation did not occur because it did not conclusively
know that Mr. Taylor had died until 2:30 p.m., when Mr. Smith received a call from Mr. Taylor's
brother, and promptly reported the death to MSHA within fifteen minutes. As previously noted,
Respondent is charged with a violation of Section 50.10(b), requiring the reporting of any injury
which has a reasonable potential to cause death.

I conclude and find that the fact that Mr. Taylor was found unresponsive and not breathing, and
that CPR was immediately applied by Mr. Wharff and continued by the EMT personnel before he was
transported by ambulance to the hospital, Respondent's management should have realized and known
that Mr. Taylor's condition and injury, which I find posed a reasonable potential to cause death, should
have been reported to MSHA, at least by the time he was transported to the hospital at approximately
1:10 p.m. Given the fact that Mr. Taylor was not at the mine, I find they had an opportunity to report
the incident. Mr. Smith and Mr. Dawson both knew that Mr. Taylor had been taken to the hospital and
Mr. Smith knew that CPR had been administered to Mr. Taylor and reported this fact to his safety
department.

Although Mr. Dawson may not have known at the time he received the first call from Ms.
Jackson while he was on his way back to the mine, that CPR was being administered to Mr. Taylor.
He acknowledged that the question of whether or not the reporting requirements of Section 50.10
would apply to an individual found passed out and not breathing would depend on the "surrounding
circumstances" (Tr. 83).

Based on all of the aforementioned prevailing circumstances and findings and conclusions that
I have made in this case, I conclude and find that a violation of Section 50(b) has been established by a
preponderance of the credible evidence adduced in this case and the citation IS AFFIRMED.

History of Prior Violations

The Secretary argued at the hearing that a prior citation issued on October 10, 2008, for a
violation of Section 50.10, establishes that the Respondent had prior knowledge of the reporting
requirements because the citation provided an "extra warning" and "instruction", and put the Respondent
on notice that it must comply with the standard (Tr. 132-136; Ex. P-9).

I take note of the fact that the citation in question was issued as a Section 104(a) non -S & S
citation and that it was issued at another quarry in Pennsylvania operated by the Respondent. The
violation was assessed at $5,000, and the exhibit reflects that it was contested and that no penalty
assessment was paid. The Secretary's counsel had no further information regarding the facts because
she received a copy a day before the hearing (Tr. 132). Although counsel indicated she would provide
additional arguments in her post-hearing brief, no further information was forthcoming.

The Secretary's brief, at page 14, states that the history of prior violations at the Tarburton Pit
is reflected in Ex. P-4, and that the aforementioned previous violation of Section 50.10(b) is stated in
Ex. P-9. Exhibit P-4 reflects no prior violations of Section 50.10, at the Tarburton Pit over an
intermittent period as early as August, 1994, and ending in September, 2011. The record reflects that
forty (40) Section 104(a) citations were issued, thirty-two were non - S & S and eight (8) were

S & S.

I have given little weight to the Secretary's argument that the prior Section 50.10 citation
constituted some sort of extra or unique enforcement warning, instruction, or edict by MSHA, issued
two years prior to the issuance of the citation in this case. The statement that "MSHA has instructed
the operator to report within the 15 minute time period all accidents meeting the requirement" was
apparently made in conjunction with the abatement of the violation. Statements of this kind are
routinely made, and the Respondent is obligated to comply with the requirements of any safety
standard not withstanding any gratuitous MSHA instructions.

I conclude and find that for an operation of its size, the Respondent has a fairly good
compliance record that does not support any additional increase in the penalty assessment made in this
case.

Good Faith Compliance

The Secretary agrees that the Respondent abated the cited violation in good faith.

Gravity

The Secretary determined that the gravity of the violation was not significant and
substantial, and that there was no likelihood that an injury or illness would result from the
violation.

Size of Business Effect of Civil Penalty Assessment on the Respondent's Ability to Remain
in Business

Based on the information provided in Ex. A of the Secretary's civil penalty
assessment petition, I find that the Tarburton Pit was a small operation and that the
Respondent’s controller is a large mine operator. The Respondent has admitted that the
penalty assessment for the violation will not adversely affect its ability to remain in
business.

Negligence

Although I have concluded that the Respondent failed to strictly comply with
Section 50.10(b), a regulation that provides no exceptions, and has been interpreted to
require the immediate reporting of an accident within fifteen minutes of the initiation of
CPR, I take note of a recent Tenth Circuit Court of Appeals slip decision of April 4, 2012,
in Mainline Rock and Ballast Inc. v. The Secretary of Labor, et al., affirming a violation of
Section 50.10 for failure to report an accident involving a miner who was entrapped in a
moving conveyor belt and required long-term hospitalization for permanent disabling
injuries. In that decision, the Court cited the Commission's affirmance of a Section 50.10
violation in Secretary of Labor v. Consol Coal Co. 11 FMSHRC 1935, 1938 (1989), that
stated in part as follows:

“The immediateness of a operator's notification under Section 50.10 must be
evaluated on a

case-by-case basis, taking into account the nature of the accident and all relevant
variables

affecting reaction and reporting.”

The inspector testified that he based his "high" negligence finding on his belief that
there were "enough people" at the scene when Mr. Taylor was removed from his truck who
could have called MSHA without stopping CPR. However, as previously discussed, the
inspector was mistaken when he testified that two of the three people administering CPR were
employees. The credible evidence established that Mr. Wharff was the only employee
performing CPR.

With respect to the Secretary's arguments that "multiple people" were available to
immediately place a call to MSHA when Mr. Taylor was removed from his truck supports
the inspector's "high" negligence determination. I have concluded that truck driver
Colburne, Mr. Taylor's brother, Purnell, and sales representative Holston were not
employees and were not reasonably expected to place any calls to MSHA.

On the facts of this case, I conclude and find that the Secretary's assertion that the
one hour and thirty minute delay after the Respondent's manager knew that Curtis Taylor
had stopped breathing, and that CPR was being performed, constituted egregious conduct
and delay, warranting a minimum $5,000 civil penalty assessment because "multiple
people" had many opportunities to timely report the incident to MSHA, is not well taken.

The term "egregious" has been defined by several dictionaries as "flagrant",
"outrageous", and "blatant". I note that the Secretary's Part 100 penalty assessment criteria
for negligence includes consideration of mitigating circumstances for a "moderate" degree
of negligence, and a finding of "high degree" of negligence in the absence of mitigating
circumstances. The highest degree of negligence is "reckless disregard" when an operator
"displayed conduct which exhibits the absence of the slightest degree of care." In this
regard, I note that the citation in this case was issued as a Section 104(a) citation and was
not designated as a "reckless disregard" level of negligence.

The inspector in this case conceded that the Respondent handled the accident in
good faith in its attempts to save Mr. Taylor's life by immediately performing CPR before
the arrival of the EMT's after the 911 call was placed, and he did not believe the
Respondent was attempting to avoid compliance or receiving a citation (Tr. 56-58). The
inspector agreed that the level of negligence in any case would depend not only on the
lapse of time after the occurrence of an accident and its report to MSHA, but also on the
prevailing circumstances, on a case-by-case basis (Tr. 40-43).

I conclude and find that notwithstanding the fact that the Respondent failed to
contact MSHA with 15-minutes of finding Curtis Taylor unresponsive, the immediate
placement of a telephone call to 911 for emergency assistance, coupled with the fact that
the Respondent's employee was attempting to revive Mr. Taylor through CPR under the
most trying and emotional prevailing circumstances at that point in time, while the employee
who placed the 911 call was still on the phone in communication with the emergency
responders, merits consideration in determining the appropriate negligence level associated with
the violation, particularly in view of the inspector's erroneous belief concerning the number of
people who were allegedly performing CPR.

I further find it appropriate to consider the nature of the incident in this case that placed no
miners or others at risk, and was not the result of any normal mining activities. I also take note
of the fact that in response to the report informing MSHA at 2:42 p.m. of Mr. Taylor's death, the
inspector arrived at the mine three hours later and met with Mr. Dawson. Mr. Dawson was
completely cooperative, reviewed the incident with the inspector, and provided him with the
Respondent's incident reports and employee statements, gave him an accurate account of the
accident, and together they viewed the scale and Mr. Taylor's truck that was parked and locked
down at the scale house.

(Tr. 80-81).

Based on the facts of this case, I find that the failure of the Respondent to report the
incident in question to MSHA immediately within fifteen minutes did not prejudice MSHA or
otherwise undermine the intent of the regulation. I find that MSHA would not have benefitted
from any knowledge that CPR was being performed within fifteen minutes of the initiation of
CPR immediately after Mr. Taylor was removed from his truck in contrast to being informed
within fifteen minutes of knowing that it had experienced a reportable event when it learned that
Mr. Taylor had died, and reported it to MSHA within fifteen minutes.

Based on all of the aforementioned circumstances that I conclude and find mitigate the
inspector's "high" negligence determination, that initial finding IS MODIFIED to a finding of
moderate negligence, and a civil penalty assessment of $1,500 is appropriate.

WHEREFORE, IT IS ORDERED that Section 104(a) Citation No. 8580394,

October 12, 2010, for a violation of 30 C.F.R. 50(b), IS AFFIRMED, with a modified moderate
level of negligence.

IT IS FURTHER ORDERED that the Respondent pay a civil penalty assessment of
$1,500, for the violation. Payment shall be submitted to the Mine Safety and Health
Administration (MSHA), U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390, referencing Docket No. YORK 2011-61-M. Upon receipt of payment,
this case is DISMISSED.

/s/ George A. Koutras

George A. Koutras

Administrative Law Judge

Distribution:

Maria del Pilar Castillo, Esq., Andrea J. Appel, Esq., Office of the Solicitor, U.S. Department

of Labor, Suite 630 E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA

19106-3306

Sarah T. Brooks, Esq., Old Castle Law Group, 900 Ashwood Parkway, Suite 700, Atlanta, GA

30338-4780

pc