**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

Office of AdministrativeLaw Judges

721 19thStreet, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX303-844-5268

 

 
| SECRETARY  OF LABOR

    MINE SAFETY AND HEALTH        

    ADMINISTRATION (MSHA),

                               Petitioner

 

                            v.

 

SOLVAY  CHEMICALS, INC.,

                               Respondent                                                                                              |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. WEST 2020-0278-M

A.C.  No. 48-01295-511817

 

 

 

 

Solvay  Chemicals |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

**DECISION**

 

Appearances:              FrancescaCheroutes, U.S. Department of Labor, Office of the Solicitor, Denver, Coloradofor Petitioner;

Erik Dullea, HuschBlackwell, LLP, Denver, Colorado for Respondent.

 

Before:                                    JudgeManning

** **

** **

**I.   INTRODUCTION**

 

This case isbefore me on a petition for assessment of civil penalty filed by the Secretaryof Labor, acting through the Mine Safety and Health Administration (“MSHA”),against Solvay Chemicals Inc. (“Solvay”) pursuant to sections 105 and 110 ofthe Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the“Mine Act”). The parties presented testimony and documentary evidence at a videoconference hearing and filed post-hearing briefs and replies. Citation No.9475179, alleging a violation of section 50.10(b), was adjudicated at thehearing.[1]For reasons set forth below, I **AFFIRM** the citation but modify the degreeof negligence to moderate.

 

Although I havenot included a detailed summary of all evidence or each argument raised, I havefully considered all the evidence and arguments. The findings of fact are basedon the record as a whole and my careful observation of the witnesses duringtheir testimony.

 

 

**II.   DISCUSSIONWITH FINDINGS OF FACT**

**AND CONCLUSIONS OFLAW**

 

Solvay operates the Solvay Chemicals Mine(the “mine”), an underground trona mine in Sweetwater County, Wyoming. On January31, 2020, Delbert Hauser[2],an underground miner employed by Solvay, was assigned to operate the 6 BoreMiner (the “bore miner”[3])during the day shift.[4]Tr 122. At some point during the shift a shear pin at the front of the boreminer broke. Tr. 125. In response, Hauser backed up the bore miner to where hecould see a roof bolt in front of the machine.[5]Tr. 125, 152. Hauser then gathered his tools, went to the front of the machine,and attempted make the repair. Tr. 126. After Hauser struggled with the repairwork for some time, Shane Dodge,[6]one of the other crew members in the area, asked if he could help. Tr. 126.Hauser got down off the bore miner and Dodge crawled up to begin working on theshear pin. Tr. 127, 197-199. 

 

Shortly after Hauser crawled down off themachine there was a sound from above and a fall of roof struck him.[7]Tr. 127. Hauser did not see the size of the roof fall that hit him but knewthat a large slab of the roof struck him, knocked off his hardhat and drove himface first into the ground before a second, smaller rock hit him directly inthe head.[8]127-128. Dodge, who heard but did not see the roof fall, turned and saw Hauser,without his hardhat, laying on the ground, pushing rocks off him and beginningto get up.[9]Tr. 199, 209. At hearing, Dodge testified that Hauser appeared “kind of, dazedand confused” as he stood up. Tr. 199. Dodge observed that Hauser had a two-inchcut on the back of his head that would need stitches, a torn shirt, and a“light abrasion, scratch” on his back. Tr. 199-200. According to Dodge, Hauserrepeatedly stated that he was alright when asked. Tr. 199.

 

At the time of the roof fall NeilMattinson,[10]the production foreman for the crew, and Wendalle Boyd,[11]a crew member, were positioned at the rear of the bore miner. Tr. 215, 257. Bothheard the roof fall, but neither saw it.[12]Tr. 216, 258, 280, 298. While walking toward the front of the bore miner Boydcould see Hauser picking himself up off the ground. Tr. 216. Mattinson and Boydobserved that Hauser had a cut on his head and was bleeding. Tr. 216, 258, 277.In response, Mattinson and Boyd went to retrieve the first aid kit from thelunch niche. Tr. 216, 260-261, 278. Meanwhile, Dodge assisted Hauser along theside of the bore miner to the rear. Tr. 200.

 

After helping Boyd gather the necessaryfirst aid supplies Mattinson called the hoistman from the lunch niche to tellhim that Hauser had “possibly [been] struck by a rock,” had blood on his face,and an ambulance was needed at the collar.[13]Tr. 259-260, 278-281. Mattinson testified that at the time he spoke with thehoistman he did not knew where Hauser had been hit but based on the blood on Hauser’sface, he would probably need to go to the hospital for stitches. Tr. 279, 281. Oncross-examination Mattinson testified that the closest he got to Hauser before callingthe hoistman was 30 feet and agreed that he did not know the seriousness of theinjury at that time. Tr. 282. Mattinson told the hoistman that he would updatehim if anything new developed. Tr. 265. While Mattinson was on the call, Boydreturned to the last open crosscut, where he met Dodge and another crew member thathad helped Hauser into a mantrip. Tr. 200-201, 216-217.

 

The crew members bandaged Hauser’s headand asked questions to ensure he was coherent. Tr. 202, 217. Dodge, Boyd andMattinson all testified that Hauser was coherent and refused, multiple times,to be placed on a backboard, but did accept an ice pack to place on his eye,which had begun to swell. Tr. 202, 204, 210, 218, 263-264, 284. Hauser also refusedto be placed in a “c-collar.” Tr. 202-203, 218, 263. Notably, althoughMattinson stated that he did not know if Hauser had a head or neck injury, henevertheless testified that Dodge told him that Hauser had been hit on the backof the head, and that any time a miner is hit in the head or back they shouldbe put on a backboard. Tr. 287-289. According to Mattinson, he did not believeHauser was in shock because Hauser was talking, answering questions, breathingnormal, was not panicking, and his skin appeared normal. Tr. 294-295. However,Mattinson conceded that he did not have much experience with serious accidentsand had never had to treat one. Tr. 295-296.

 

At hearing, Hauser convincingly testifiedthat he had little memory of events after he was moved to the side of the boreminer and did not recall being asked if he wanted a backboard. 129-132. Based uponhis years of experience on the mine rescue and first aid teams, Hauser knewthat he was starting to go into shock due to faster breathing and a decreasinglack of awareness as to what was going on around him. Tr. 130, 132-133.Moreover, although he was not sure if anything was broken, Hauser knew he hadblood on the back of his head, his back hurt, his right eye was swelling somuch that he could not see out of it, and the other eye was full of blood anddirt.[14]Tr. 129-130. 

 

Hauser, Mattinson, and Dodge traveled inthe mantrip to the hoist – a trip which takes between 20 and 30 minutes - whereHauser, under his own power, walked onto the hoist, rode three to five minutes tothe collar, exited the hoist and walked to Solvay personnel waiting on the surface.[15]Tr. 203-204, 226, 265-267. Hauser testified that, although he remembers themantrip making a beeping sound as they traveled to the hoist, he does notremember walking to the vehicle or where he sat in the vehicle and has norecollection of getting off the hoist or seeing anyone at the collar. Tr. 134,153.

 

According to Mattinson, despite nothingpreventing him from doing so, he never provided additional information to thehoistman regarding Hauser’s condition because the hoistman never asked and Mattinsonthought the injuries required only first aid and possibly some staples.[16]Tr. 265, 281-282, 284, 286. At hearing, Dodge testified that he did not think Hauser’sinjuries were severe, and that “everything was normal as if he just . . . gotmildly hurt[.]” Tr. 210. 

 

Shawn Marshall,[17]the mine operations manager, was on the surface when he was notified by safetypersonnel that Hauser had been hit by a rock. Tr. 157-158, 175. On cross-examination Marshall agreed that the safetypersonnel did not say what size rock hit Hauser, nor did Marshall ask. Tr.175. Marshall contacted the hoistman for more details and was told that Hauserhad been hit, had cuts on his eye and the back of his head, and was beingbrought out. Tr. 159, 176. Marshall testified that the hoistman relied on thecrew and foreman to determine the actual extent of the injuries but acknowledgedthat none of the crew were first aid responders. Tr. 176-177. According toMarshall, he knew that the roof fall was not substantial, i.e., did not fallfrom above the anchorage point, because it would have been relayed to himdifferently. Tr. 158. Rather, he figured there had been a delamination of tronathat fell and hit Hauser. Tr. 158. At some point Marshall told Jamie McGillis,[18]who was also on the surface, that Hauser had been injured and she should go tothe collar. Tr. 224-225, 231. 

 

Michael Crum,[19]the mine’s Health, Safety, Environment and Quality Manger, was on the surfacewhen he was notified by someone sometime between 11:10 and 11:30 AM that Hauserhad been injured and was being brought out of the mine. Tr. 300, 304, 343. Onthe day in question, he was individual responsible for making the decisionwhether to immediately notify MSHA of any injury. Tr. 180, 337-338. Afterleaving his office, Crum received an update and learned that Hauser had beenhit by a piece of rock from the roof, had a laceration on his head, but wasconscious and coherent. Tr. 305. While waiting for another update, Crumgathered his safety gear and headed to the collar. Tr. 307. At the hearing,Crum testified that even though he knew the rock that hit Hauser was loosematerial that fell from the roof, he did not know the size of the rock orwhether it was more than one rock. Tr. 343-344.

 

Marshall, McGillis and others were at thecollar when the hoist cage arrived at the surface. Tr. 160-161, 226, 267. Accordingto Marshall, Hauser walked off under his own power toward the ambulance whilesome of the crew members held a light grip on his arms.[20]Tr. 160-161. Despite a black eye, a cut near his eye, and a bandage on hishead, Marshall’s impression was that Hauser was in good overall condition butwould probably need stitches. Tr. 162, 167. Marshall explained that he did nottry to find out the size of the rock because he did not need to do so at thattime. Tr. 185. He testified that, based on what he observed, Hauser was notgoing to “succumb to the injuries” and the information regarding the size ofthe rock could be gathered during the mine’s preliminary internal investigation.Tr. 184-185.

 

McGillis saw that Hauser’s head had been bandagedand he had an eye injury that was not bandaged. Tr. 226. As a result, shetreated his injuries as a head injury. Tr. 233. However, because of thebandage, she never saw the laceration on the back of Hauser’s head. Tr. 234,237. McGillis briefly spoke to Hauser at the collar and determined he wascoherent and able to understand what was going on. Tr. 227. She then helpedload Hauser into the waiting ambulance and traveled with him to the local hospital.Tr. 224. At hearing, McGillis agreed that head injuries can be serious, and insome cases potentially fatal, and it would have made a difference to her whatsize rock hit Hauser, whether he was hit by more than one rock, and whether hishard hat was knocked off and he was hit on the bare head with rocks. Tr. 231-232,238-239, 245-246. However, according to McGillis, she never learned how largethe rock was and did not recall if she asked Hauser how large the rock was. Tr.232.

 

On the way to the hospital McGillis lookedHauser over head to toe, took his vitals, washed the eye injury, which was swollenand bleeding, administered oxygen, measured blood pressure, asked questions,and observed his demeanor. Tr. 227, 232-234. According to McGillis, aside fromcomplaining about the cut on his head bothering him, Hauser mentioned no otherinjuries and showed no signs of internal injury or shock during the ride. Tr.229-230. However, on cross-examination McGillis conceded that she thought hewas “in some degree of shock.” Tr. 233-234.

 

Crum arrived at the collar after theambulance had departed. Tr. 307, 313-314. When asked about the injuries,Marshall told Crum that that Hauser was walking, talking, and coherent. Tr.308. Crum testified that at that time he was aware Hauser had a laceration tohis head, as well as some scrapes and bruising to his face, and believed Hauserwould only need stitches and then he would be back at work as soon as thestitches were removed. Tr. 308, 314. Based on the information they had,Marshall and Crum agreed that that the injuries were not that severe and Hauserwas going to be fine. Tr. 167, 308. According to Crum, at no point was there adiscussion about a deep penetrating head wound, internal injuries, or abdominalinjuries. Tr. 314.

 

Once at the hospital, Hauser received a CTscan of his head that revealed his orbital right eye socket was shattered. Tr.135. Hospital personnel stapled shut the wound on the back of Hauser’s head butwere unable to suture the area around his eye. Tr. 135.

 

Marshall visited Hauser in the hospitaland took photos of the cuts to Hauser’s face and back of his head. Jt. Ex. 25pp. 2, 3. Marshall was not present when the doctors examined Hauser. However, atCrum’s instruction, Marshall asked one of the doctors whether Hauser’s injurieswere life threatening, to which, according to Marshall, the doctor respondedthat they were not. Tr. 173, 317. Marshall then relayed this information toCrum. Tr. 349. According to Crum, it was not until Marshall contacted him thathe became aware Hauser had fractured orbital bones.[21]Tr. 314-315. 

 

Meanwhile, back at the mine followingHauser’s departure, Mattinson, along with Tyler Hanks, the shift foreman, traveledunderground to conduct a preliminary investigation of the incident, duringwhich they measured the rock that fell. Tr. 208, 269, 286; Jt. Ex. 31. Althoughthe rock had broken into smaller pieces, Hanks was able to measure the voidfrom which it fell and determined that the rock was approximately five feetwide, by ten feet long, by one to three inches thick. Tr. 208, 269, 291-292;Jt. Ex. 31. Mattinsontestified that Hanks spent approximately 15 to 20 minutes in the areacompleting the investigation. Tr. 291. According to Mattinson, the rock thatfell was mainly trona, which is “very dense. . . [and] way harder than coal[,]”with a thin layer of shale. Tr. 298-299. At some point that afternoon Hanksinformed Mattison that the investigation was complete, and mining could resumein the area. Tr. 208, 271.

 

Hauser was eventually released from thelocal hospital the same day and taken by ambulance to the University of UtahHospital in Salt Lake City, where a surgical specialist sutured the area aroundhis eye. Tr. 135-136. However, due to swelling, surgery to correct thefractured eye socket could not be completed that day. Tr. 138. As a result,Hauser was again released, but returned a week later for the procedure. Tr.138.

 

Hauser has been disabled since the eventsat issue in this proceeding and is currently on long term disability. Tr. 121;Jt. Stip. 16. At hearing, he explained that since being struck by the rock hehas suffered from a number of ailments, including a constant migraine, occasionalnausea, double vision in one eye, short term memory loss, neuropathy in hisfingers, dizziness and balance issues, decreased peripheral vision, and PTSD.Tr. 138-139, 143. Further, as a result of the injuries suffered, Hauser nowwalks with a cane, is unable to watch TV for more than a short period of time, drivesless, and spends a significant amount to time sitting in the dark. Tr. 138-139.

 

On February 1, the day following theincident, MSHA inspector Rodney Gust[22]traveled to the mine to investigate an anonymous complaint alleging that therehad been an injury due to a fall of roof. Tr. 19. When Gust arrived, he wastold that the miner, Hauser, had been struck by loose material in the 6 BoreMiner Panel, but was doing well after having gone to the hospital. Tr. 33. Gustlearned that the miner had been struck on the head, had a cut on the back ofhis head, swelling around his right eye, and possibly some scrapes and cuts onhis back. Tr. 55-56. 

 

Gust traveled to the 6 Bore Miner Panelbut, because the scene of the incident had not been preserved, was unable tomeasure the material that had fallen from the roof. Tr. 23, 34-36, 50. However,according to Gust it was obvious from where the rock had fallen due to theimpression that remained in the roof nine feet above the ground. Tr. 35-36, 52.Gust measured the impression in the roof from which the rock had fallen andestimated that the size of the rock was approximately twelve and half feetlong, by five feet wide, by one to three inches thick. Tr. 35-37. Gust estimatedthat a rock of that size would weigh approximately 800 to 900 pounds.[23]Tr. 63. 

 

Gust, through interviews, determined thatno one saw the roof fall strike Hauser. Tr. 37-39, 41. Although mine personneltold Gust they believed the rock hinged underneath a bolt plate, swung and hitHauser, he disagreed. Tr. 43. Gust testified that, in his experience, rocks donot hinge and go sideways. Tr. 44, 47. Moreover, the impression in the roof hemeasured was nowhere near a bolt plate. Tr. 47.

 

Gust opined that the cited standardrequires mine operators to quickly and prudently investigate both the injuryitself and the mechanism that caused the injury and, if necessary, notify MSHAwithin 15 minutes after management becomes aware of the injury. Tr. 25, 29-30. Heexplained that depending on where a rock strikes a miner there can be severe injuries,including injuries that have a reasonable potential to cause death. Tr. 15. Accordingto Gust, concussions and blunt force trauma to the head, neck and upper torsobody areas are the types of injuries that have a reasonable potential to causedeath.[24]Tr. 25-28. Consequently, consideration must be given to the mechanism of alarge slab or rock falling and striking an individual on the head, neck andback. Tr. 27. Gust agreed that some falls of roof are small enough that they donot cause much damage and do not need to be immediately reported. However, here,given the size of the rock as determined by measuring the impression andestimating the weight, the height from which it fell, and the fact that theminer had lacerations and took a severe blow to the back of the head and theface, Gust determined that there was a reasonable potential to cause death. Tr.57, 63, 66-67. According to Gust, severe blows to the head can result in brainswelling, which has the reasonable potential to cause death. Tr. 57. Because noone witnessed the incident, Gust was unable to definitively determine if therock grazed the miner or directly struck him. Tr. 63. However, given theseverity of the injuries sustained, as well as Gust’s familiarity with similaraccidents that ended up in fatalities,[25]he determined that the incident was immediately reportable. Tr. 63-64. Gustexplained that, when an operator is not sure of the extent of an injury, theyshould report it to MSHA. Tr. 30.

Gust explained that the purpose of 50.10is to prevent accidents and injuries. Tr. 31. If the incident had been properlyreported, the scene would have been preserved and MSHA could have gone to the 6Bore Miner Panel and found other loose roof that needed to be scaled orsupported, thereby preventing miners from being further exposed to potentialinjury.[26]Tr. 31-32. According to Gust, notification prevents injuries not only at themine in question, but also similarly situated mines. Tr. 32.

 

On February 4, based upon what he observedand learned during his investigation, Gust issued Citation No. 9475179 toSolvay under section 104(a) of the Mine Act for an alleged violation of section50.10(b). Tr. 92-93; Jt. Ex. 2.

 

Crum was surprised to receive a citation giventhe operator’s conclusion that Hauser’s injuries never met the requirements forimmediate reporting, and the deadline for filing a normal 7000-1 form had notpassed. Tr. 331-332. Crum testified he had a conversation with Gust duringwhich he mentioned that Hauser had only a laceration to his head and some scrapeson his back, was walking and directing his own care, and at no point did anyone,including Crum, think the injuries were life threatening. Tr. 332, 335-336.However, according to Crum, Gust told him that all head injuries and bluntforce trauma are life-threatening. Tr. 332. Notably, at hearing, Crum testifiedthat he had no idea how much the rock, as measured, would have weighed. Tr.337, 352.

 

Crum testified that he or someone elsefrom the safety department is responsible for making the call to MSHA whennecessary. Tr. 319. He explained that the foreman closest to the incident isnot always near a phone, but they can contact the hoistman, who can relay themessage. Tr. 320. He explained that if a supervisor or foreman is taking careof an injured individual, then that is their primary responsibility. Tr. 320.

 

**CitationNo. 9475179**

 

Citation No. 9475179 alleges a violationof Section 50.10(b) of the Secretary’s safety standards. The Condition orPractice section of the citation states as follows:

 

On January 31,2020 a miner was struck by a large slab receiving trauma to head and neck area.Management did not immediately notify MSHA at once without delay and within 15minutes to the MSHA toll-free number.

 

Inspector Rodney Gust determined that afatal injury was reasonably likely to be sustained as a result of the violation.Gust further determined that the cited condition was significant andsubstantial (S&S), affected one person, and was the result of Respondent’s highnegligence. The Secretary proposed a penalty of $6,159.00 for this allegedviolation.

 

 

**Fact of Violation**

 

*Brief Summary ofthe Parties’ Arguments on the Fact of Violation*

 

The Secretary argues Respondent failed toproperly notify MSHA that a miner had suffered an injury with a reasonablepotential to cause death. The Secretary asserts that Respondent had 15 minutesfrom the time a person of sufficient authority learned of the event injuringthe miner to conduct its evaluation and determine whether it needed to notifyMSHA. Here, Respondent failed to perform an adequate investigation and, in turn,made a cursory decision to not report the incident to MSHA even though thetotality of the circumstances and the evidence available at the time of theinjury causing event would have allowed Respondent to infer the miner hadsuffered an injury with the reasonable potential to cause death. Given thatCommission case law requires operators to err in favor of reporting when there arereasonable doubts, the Respondent violated the standard when it failed toimmediately report the subject injury. Accordingly, the Secretary argues thatCitation No. 9475179 should be affirmed.

 

Respondent raises three primary arguments insupport of its request that that the citation be vacated. First, Respondentargues that a reasonably prudent person would not have determined that Hauser’sinjury had the reasonable potential to cause death. Specifically, Respondentargues that it was reasonable for the crew foreman and other personnel whoresponded to incident, as well as the members of management who relied oninformation from the foreman, to assume that Hauser was not directly hit by alarge rock and had not suffered injuries that required immediate notification.Hauser’s condition did not indicate that he was stuck by a rock large enough tocause a fatal injury. Moreover, medical records and pictures introduced intoevidence corroborate the injury assessment of Solvay personnel that respondedto the incident. 

 

Second, Respondent argues that theSecretary did not meet his burden of proving each element of the citedstandard. In making this argument Respondent asserts that the Secretary’sassertions about the severity of the injuries are not supported by evidence.Further, Respondent questions the credibility of the Secretary’s witnesses, andargues that Commission precedent dictates that Hauser’s injuries, when viewedunder the totality of the circumstances, were not as severe as those sufferedin other cases where immediate notification was required.

 

Finally, Respondent argues that it was notprovided fair notice of the Secretary’s interpretation that a head injurycaused by a roof fall has a *per se* reasonable potential to cause death.

 

*Discussion*

 

Section 50.10(b) provides that “[t]heoperator shall immediately contact MSHA at once without delay and within 15minutes at the toll-free number, 1–800–746–1553, once the operator knows orshould know that an accident has occurred involving . . . [a]n injury of anindividual at the mine which has a reasonable potential to cause death[.]” 30C.F.R. § 50.10(b).[27]Section 50.10 is triggered by the occurrence of an “accident,” as defined in 30C.F.R. § 50.2(h).

 

Neither the Mine Act nor the Secretary’sregulations define when an injury has the “reasonable potential to cause death.”However, Commission case law provides a framework for making that determination.

 

In *Consol Pennsylvania Coal Company,LLC*, the Commission explained that, when assessing the merits of aviolation under 50.10(b) the court should “employ[] a reasonable personstandard, resolving reasonable doubt in favor of notification.” *ConsolPennsylvania Coal Company, LLC*, 40 FMSHRC 998, 1003 (“*Consol*”) (citing*Signal Peak Energy, LLC*, 37 FMSHRC 470, 474, 477 (Mar. 2015)). Under thereasonable person standard, the court must “evaluate the evidence in light ofwhat a reasonably prudent person, familiar with the mining industry and theprotective purpose of the standard, would have provided in order to meet theprotection intended by the standard.” *Ideal Cement Co*., 12 FMSHRC 2409,2415 (Nov. 1990). The Third Circuit Court of appeals, in an opinion affirming theCommission’s decision in *Consol*, held that the purpose of notificationrequirement in 50.10(b) is “to encourage rapid notification so that MSHA canrespond effectively in an emergency and preserve evidence to facilitate laterinvestigation.” *Consol Pennsylvania Coal Co., LLC v. FMSHRC*, 941 F.3d95, 105 (3d Cir. 2019).

 

In *Consol* the Commission endorsedconsideration of the “totality of the circumstances” when assessing whether aviolation of the standard has occurred, and stated that, “[g]iven the inabilityto acquire quickly a clinical diagnosis and the need for prompt reporting,readily available information such as the nature of the accident and anyobservable indicators of trauma are relevant and proper for consideration inassessing whether an injury is reportable.” *Consol* at 1003. Further, the“scope of the relevant evidence available to assist for purposes of section50.10(b) generally will consist of the evidence available at the scene of theaccident, at the time of the accident, and immediately following the accident.”40 FMSHRC at 1003. Moreover, “[w]hile the record will often contain subsequentrelevant information from medical professionals, this information will likelynot materialize until the time to make a decision to notify MSHA has alreadypassed. Therefore, it is less probative in a section 50.10(b) analysis.” *Id*.

 

I find that the Secretary established aviolation of the cited standard. In reaching this conclusion I have focusedupon the following critical facts. First, no one observed the roof fall thatstruck Hauser. Second, Hauser suffered a serious blow to his head and back thatknocked him to the ground. Third, it was unknown what size rock stuck Hauser inthe head. Fourth, Hauser suffered visible lacerations to the back of his headand the area around his right eye and, due to swelling, he was unable to seeout of that eye. Fifth, Mattinson, the crew foreman and a member of management,became aware of the incident only moments after it occurred. Sixth, Respondentdid not notify MSHA of the incident at any point on January 31, 2020. Seventh,and finally, the void from which the rock fell was later measured to beanywhere from five feet wide, by ten to twelve and half feet long, by one tothree inches thick. Of the above listed facts, the most critical to my analysisare that no one saw the roof fall, no one knew the size of the rock that struckHauser’s head, and that Hauser suffered a severe blow to the head.

 

It is undisputed that no one saw the rooffall or how it struck Hauser. Dodge, who was closest to Hauser at the time ofthe incident, conceded that he did not see the roof fall or how it struckHauser. Although Dodge speculated that the falling rock “hinged” and did notdirectly strike Hauser, his testimony was just that, speculation. Accordingly,I accord his testimony on that issue no weight.[28]Similarly, Boyd and Mattinson, who were positioned at the rear of the boreminer, testified that they heard but did not see the roof fall. Respondent’sother witnesses were on the surface at the time of the incident. Because noneof these individuals saw the roof fall or how it struck Hauser, it stands toreason that none of them knew the size of the rock that struck Hauser in thehead.[29]The facts were all “known unknowns,” i.e., information Respondent was aware, orshould have been aware, that it lacked regarding the gravity of the injury.

 

In addition to the “known unknowns”discussed above, I find that Respondent was aware, or should have been awarethat Hauser had suffered a severe blow to the head and back that drove him intothe ground. When Dodge first observed Hauser after the roof fall, Hauser waslaying on the ground, pushing rocks off him and beginning to get up. WhileHauser had scratches on his back, it was clear that the bulk of the observableindications of trauma to his body were on his head, i.e., lacerations to theback of his head and eye, bleeding, and swelling around his eye. Common sensedictates that he had suffered a blow to the head as a result of the roof fall. Theforce of the blow is demonstrated by the fact that he did not have time tocushion his fall by stretching out his arms, which is the natural reaction, butinstead hit the floor hard with his face. Given the seriousness of headinjuries, I find that a reasonable person, when presented with a similarsituation where there are multiple “known unknowns” regarding the circumstancesthat caused head trauma, would have erred on the side of notification at thatpoint. However, Respondent chose not to do so. Although I have no difficultyfinding a violation based on this analysis, further discussion is helpful. 

 

It is important to recognize that Congressadded the 15-minute time requirement to the Mine Act when it passed the MINERAct in 2006. This extremely short timeframe requires mine operators to make a“yes” or “no” decision on whether to call MSHA before it can conduct acomprehensive investigation into the extent of the miner’s injuries. Instead,the decision whether to immediately call MSHA must be made based on a verylimited knowledge of the facts surrounding the injury and the nature of theaccident.

 

Mine management’s primary responsibilityafter an accident is, of course, to tend to the injured miner and get him orher any necessary medical help. Preforming this triage will provide an initialindication of what type of care the miner will need. Management may be able tocomplete this triage within 15 minutes, but it often will take longer dependingupon such factors as location of the accident within the mine, whether otherminers saw the accident so that they have some idea of the location and natureof the miner’s potential injuries, and the extent of these injuries.

 

A mine operator must quickly make thedetermination whether to call MSHA under stressful and rather chaoticcircumstances. In this case, management knew or should have known, within the15-minute reporting period, that a rock fell from the top and at least part of therock hit the back of Hauser’s head, the blow threw Hauser to the ground withgreat force, knocked off his hard hat, smashed his face into the ground, andcaused a significant cut to the back of his head. The 15-minute reportingperiod was over by the time Hauser was transported to the bottom of the hoist,so management had to decide whether to call MSHA only knowing these facts.

 

Solvay contends that because Hauserappeared to be conscious, cogent and was able to exit the mine with onlyminimal assistance, it reasonably concluded that his injuries did not pose areasonable potential to cause death. I disagree. The accident occurred in 2020,not 1920. It is now well known that significant blows to the head can lead toserious consequences that do not immediately manifest themselves. The conditionof an injured person immediately after suffering a head injury often does notreveal whether that person will die from the blow, suffer significant lingeringproblems, or be back to normal within a month.

 

For example, getting 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 a 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.

 

Given the wound at the back of his headand the force with which his face was slammed into the ground, it is obviousthat the blow to Hauser’s head and body was quite severe and traumatic. JointExhibit 25 shows the nature of his injuries. Common sense dictates that Solvayshould have immediately notified MSHA. Relying on Hauser’s condition immediatelyafter being hit was unreasonable because latent conditions can develop fromtrauma to the head that can reasonably lead to death. Even though Hauser didnot die, his mental condition was severely affected by the accident and hecontinued to be on long-term disability at the time of the hearing, which washeld about 18 months after the accident. This fact demonstrates that the extentof injuries following head trauma will generally not be known within therequired 15-minute reporting time. Mine management assumed that Hauser would bereturning to work within a few weeks after the accident. Although that was apossibility, there was also reasonable potential for the trauma to lead to hisdeath. Simply put, managers at the Solvay Mine should have known that asignificant blow to the head could reasonably be expected to be fatal even whenthe injured miner was not displaying serious symptoms immediately following theaccident.

 

Solvay contends that it was not providedwith fair notice of the Secretary’s interpretation that a head injury caused bya roof fall has a *per se* reasonable potential to cause death. First, theSecretary is not required to provide notice of the medical fact that headtrauma can result in death even when the injured person appears to be inrelatively good condition immediately after suffering the trauma. Second, theSecretary is not arguing that all head injuries caused by material falling fromthe top are per se immediately reportable. Rather he contends that when a verylarge chunk of the roof falls on a miner and it is not clear how much of therock hit the miner’s head, a mine operator is required to resolve reasonabledoubt in favor of immediate notification. It was known that Hauser was hit by alarge piece of rock, but it was not known how much of the rock hit his head.However, the gash on the back of his head indicated that his head was hit hardby the rock. The rock that fell was approximately five feet wide, ten feetlong, one to three inches thick, and weighed hundreds of pounds. Solvay wasprovided with all the notice it needed that immediately calling MSHA wasrequired.[30]

 

The purpose of the 15-minute reportingrequirement is to prevent injuries to other miners from the same or similarconditions that may be present in the mine and to preserve evidence so that theaccident can be properly investigated, and corrective measures determined. Inview of the above analysis, and taking into consideration the information knownto Respondent in the immediate aftermath of the injury, I find that based onthe totality of the circumstances a reasonably prudent person familiar with themining industry and the protective purpose of both the Mine Act and the citedstandard, would have at the very least resolved the numerous doubts regardingthe nature of the injury in favor of notification, as is required by Commissioncase law. Citation No. 9475179 is **AFFIRMED**with the modificationdiscussed below.

 

**Gravity and S&S**

** **

A S&S violation is a violation “ofsuch nature as could significantly and substantially contribute to the causeand effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). Inorder to establish the S&S nature of a violation, the Secretary must prove“(l) the underlying violation of a mandatory safety standard; (2) a discretesafety hazard - that is, a measure of danger to safety - contributed to by theviolation; (3) a reasonable likelihood that the hazard contributed to willresult in an injury; and (4) a reasonable likelihood that the injury will be ofa reasonably serious nature.” *Mathies Coal Co.*, 6 FMSHRC l, 3-4 (Jan.1984); *accord Buck Creek Coal Co., Inc.*, 52 F.3d 133, 135 (7th Cir.1995); *Austin Power Co., Inc.*, 861 F.2d 99, 103 (5th Cir. 1988)(approving *Mathies* criteria).

 

The Commission has explained that thefocus of the *Mathies* analysis “centers on the interplay between thesecond and third steps.” *ICG Illinois*, 38 FMSHRC 2473, 2475 (Oct. 2016)(citing *Newtown Energy Inc.*, 38 FMSHRC 2033 (Aug. 2016)). The secondstep requires the judge to adequately define the “particular hazard to whichthe violation allegedly contributes[,]” and then determine whether “thereexists a reasonable likelihood of the occurrence of the hazard against whichthe mandatory safety standard is directed.” *Id*. at 2475-2476. Thisdetermination must be made “based on the particular facts surrounding theviolation[.]” *Id*. The third step then requires the judge to assume theexistence of a hazard and assess whether the hazard “was reasonably likely toresult in serious injury.” *Newtown* at 2038; *ICG Illinois* at 2476.

 

Gust determined that a fatal injury wasreasonably likely to be sustained and that the violation was S&S. Accordingto Gust, a purpose of the cited standard is to prevent similar accidents and injuriesfrom occurring in this mine, as well as other mines, by enabling MSHA to protectminers through prevention, education and awareness after the agency has beennotified. Tr. 69. Gust explained that, here, because notification was notproperly provided, miners in the area of the bore miner were exposed to looseroof that remained.[31]Tr. 70-71. In his experience, a mine conducting an injury investigation wouldhave noticed loose material around the accident and shut down the section toscale and support the roof where needed. Tr. 71. However, here the crew resumedmining activities only a few hours after the incident. Tr. 72. 

 

Gust determined any injury couldreasonably be expected to be fatal based on his knowledge that roof falls ofsimilar size have killed miners. Tr. 72. He testified regarding two othersituations he investigated where miners were struck and killed by falling loosematerial. Tr. 72-73. According to Gust, Solvay knew Hauser was driven facefirst into the ground, causing lacerations, immediate swelling, and scrapesdown his back. Tr. 73-74. Gust explained that the mechanism of injury was“quite substantial,” and the miner’s injuries included a potential concussionand blunt force trauma to the head, neck and back. Tr. 74.

 

I find that the Secretary established thatthe violation was S&S. I have already found that Solvay violated the citedstandard by failing to properly notify MSHA. The hazard to which the violation of50.10(b) allegedly contributes is MSHA being precluded from investigating thecause of the accident and, in turn, being unable to identify similar hazards thatmay require correction. *See Signal Peak Energy, LLC*, 37 FMSHRC 470, 480(Mar. 2015). Here, Solvay’s failure to properly report Hauser’s injury createda discrete safety hazard in that it precluded MSHA from exercising itsinvestigatory authority to determine the cause of Hauser’s injury, i.e., a rooffall, and eliminate similar hazardous conditions. Given the loose materialobserved by Gust throughout the mine, as well as the fact that mining resumedin the area of the accident later the same day, I find that there existed areasonable likelihood another miner would have been injured by falling loosematerial. As evidenced by what happened to Hauser, a loose roof which goesuncorrected has the potential to result in an extremely serious injury. Accordingly,I find that the gravity of the violation was quite high, and that theSecretary’s S&S designation should be affirmed.

 

**Negligence**

** **

The Commission has recognized that “[e]achmandatory standard ... carries with it an accompanying duty of care to avoidviolations of the standard, and an operator’s failure to meet the appropriateduty can lead to a finding of negligence if a violation of that standardoccurs.” *A.H. Smith Stone Co.*, 5 FMSHRC 13, 15 (Jan. 1983). Indetermining whether an operator has met its duty of care, the Commissionconsiders “what actions would have been taken under the same circumstances by areasonably prudent person familiar with the mining industry, the relevantfacts, and the protective purpose of the regulation.” *Jim Walter Res. Inc.*,36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted). High negligence “suggestsan aggravated lack of care that is more than ordinary negligence.” *TopperCoal Co*., 20 FMSHRC 344, 350 (Apr. 1998) (internal quotation omitted).

 

The Secretary argues that Solvay exhibitedhigh negligence when it relied on incomplete, incorrect information andassumptions when it decided that the accident was not immediately reportable.Further, the Secretary asserts that Solvay’s failure to address easily scalableloose ground conditions in the area of the accident prior to sending minersback in the area was highly negligent.

 

I find that the Secretary did notestablish that Solvay exhibited an aggravated lack of care that was more thanordinary negligence. Solvay failed to immediately report the accident to MSHAbased on an incorrect assumption that because Hauser was walking and talking whenhe was escorted out of the mine, he was not seriously injured. I find that thisconduct constituted only ordinary negligence. Solvay’s assumption was incorrect,but I find that it did not suggest an “aggravated lack of care.” In his brief, theSecretary, in part, relies on the fact that when Inspector Gust conducted hisinvestigation, he discovered loose ground that Solvay had not addressed in thesame area of the mine and miners were required to resume mining in the area theday of the accident without first scaling down the roof. I credit theinspector’s testimony in this regard but find that it relates to the gravity ofthe violation rather than to the degree of negligence that can be attributed toSolvay for the violation adjudicated in this case.[32]I find that the violation of section 50.10(b) was the result of Solvay’smoderate negligence.

 

** **

**III.   APPROPRIATECIVIL PENALTY**

** **

Section 110(a)(2) of the Mine Act requiresthat an operator who fails to timely provide notification as required undersection 103(j) of the Mine Act “shall be assessed a civil penalty by theSecretary of not less than $5,000 and not more than $60,000.” 30 U.S.C. §820(a)(2). 50.10(b) of the Secretary’s regulations implements Section 103(j) ofthe Act. Accordingly, violations of 50.10(b) are subject to the statutoryminimum set forth in the Act. The minimum penalty in the Mine Act remainsunchanged. However, in January 2020, pursuant to the Federal Civil PenaltiesInflation Adjustment Act of 1990, the minimum penalty for violations of50.10(b) was increased to $6,159 for penalties assessed by the Secretary in2020. The Secretary proposed a penalty of $6,159.00 for the citation at issuein this proceeding.

 

Section 110(i) of the Mine Act sets forththe criteria to be considered in determining an appropriate civil penalty. 30U.S.C. § 820(i). According to MSHA’s Mine Data Retrieval System website, Solvayworked over 750,000 hours in 2020 and over 900,000 hours in both 2019 and 2018,which correlates with a large metal/non-metal operator. 30 C.F.R. § 100.3 TableIII. The parties have stipulated that the penalty as proposed will not affect Solvay’sability to remain in business. Following the hearing the Secretary submitted acopy of Solvay’s certified violation history, which was accepted into evidenceas Joint Exhibit 34. The violation history indicates no prior violations ofsection 50.10(b), and an overall violation history one would expect for anoperator of this size. The history warrant’s neither an increase nor decreasein the penalty. The gravity and negligence of Citation No. 9475179 arediscussed above. Exhibit A to the petition for penalty reflects that thecitation was timely abated. Based on the penalty criteria I assess a penalty of$6,159.00 for Citation No. 9475179.

 

**IV.  ORDER**

** **

For reasons setforth above, Citation No. 9475179 is **MODIFIED** from high to moderatenegligence, but otherwise **AFFIRMED** as issued. Solvay is O**RDERED TOPAY** the Secretary of Labor the sum of $6,159.00 within 40 days of the dateof this decision.

 

 

 

/s/Richard W. Manning

RichardW. Manning

AdministrativeLaw Judge

 

 

 

Distribution(via email and certified mail):

 

FrancescaCheroutes and Tim Williams, U.S. Dept. of Labor, Office of the Solicitor, 1244Speer Blvd., Denver, CO 80204; cheroutes.francesc@dol.gov, williams2.timothy@dol.gov

 

ErikDullea, Esq., Husch Blackwell; 1801 Wewatta Street, Suite 1000 Denver, CO 80202erik.dullea@huschblackwell.com

----

[1]This docket also contained Citation No. 9475178. On July 14, 2021, theSecretary agreed to vacate that citation so it is no longer at issue in thiscase.

[2]Hauser worked at Solvay for over 11 years. Tr. 121.

 

[3]Bore miners, which are akin to continuous mining machines found in undergroundcoal operations, are used to cut material at the face. Solvay uses bore minersand longwalls to cut all material in the mine. Tr. 18. The bore miner inquestion had cutting heads on the front, top, bottom and sides of the machine.

 

[4]The other crew members included the foreman, Neil Mattinson, as well asWendalle Boyd, Shane Dodge, Dave Acosta, and Troy Sinclair. Tr. 126, 197.

 

[5]At hearing, the witnesses offered conflicting testimony as to whether the roofin front of the parked bore miner was bolted or unbolted. However, for purposesof this decision, I need not resolve the conflict.

 

[6]Dodge has 16 years of underground mining experience, previously was a member ofa mine rescue team, and has received first aid training. Tr. 196.

 

[7]Although it was Solvay’s policy for miners to not work under unsupported roofand to bar down loose material that was observed, Hauser testified that roofconditions were always a “big issue” in the mine. Tr. 123-124, 143, 146.

 

[8]At the hearing Hauser testified that the second rock “rang [his] bell prettygood,” but he could not recall whether he lost consciousness. Tr. 128

 

[9]Although Dodge speculated that the rock that fell “hinged” and did not directlystrike Hauser, he also conceded that he did not see the rock fall out of theroof or how it struck Hauser. Tr. 199, 204, 207.

 

[10]Mattinson has worked at Solvay for 26 years and has been a mine operationsforeman for 8 years. As mine operations foreman he monitors a crew and is responsiblefor doing workplace examinations at the start of every shift. Tr. 254.

 

[11]Boyd, a shuttle car operator and bolter operator, has 23 years of miningexperience and had been with Solvay for approximately one and a half years atthe time in question. Tr. 213.

 

[12]Mattinson testified the fall sounded “normal” and “like nothing really ofsignificance.” Tr. 259. However, on cross-examination he conceded that, havingsince learned the dimensions of the rock that fell, the sound he heard made himthink the roof fall was smaller than it actually was. Tr. 277-291-292.

 

[13]The collar is where the hoist exits the mine at the surface.

[14]Hauser opined that, based on his experience on the mine rescue and first aidteams, if he had done an assessment of someone in his situation, he would havenotified the hoistman and requested a life flight. Tr. 133. According to Hauser,a patient, especially one with a head injury, does not have control of thesituation. Tr. 133-134. Moreover, Hauser stated that he should have been placedon a backboard given that the rock hit him on the head and back. Tr. 134.

 

[15]Mattinson testified that Tyler Hanks met the group at the bottom of the hoist.Tr. 285. According to Mattinson, between the time the group arrived at the bottomof the hoist and Hauser’s departure for the hospital, he told Hanks everythinghe knew about the incident. Tr. 285-286. 

 

[16]Mattinson likened the injuries to those a child would suffer in bike crash whichrequired a wound to be cleaned, bandaged, and possibly stitched if it was deepenough. Tr. 287.

[17]Marshall has been with Solvay for 25 years and has been active in the miningindustry for 33 years. Tr 155-156. Marshall was not a member of the mine’srescue team at the time in question but served on the team for approximately 10years at one point and was trained in first aid. Tr. 156.

 

[18]McGillis was an underground utility worker, as well as the first aid person onthe mine’s rescue team. Tr. 162, 225. She had been with Solvay for 30 yearsprior to her retirement between the time the events occurred and the time ofthe hearing. Tr. 222-223. McGillis was trained in first aid and certified inCPR. Tr. 223.

 

[19]Crum has worked at Solvay for approximately two years but has 27 years ofmining experience. Tr. 301. In his job, he manages three departments, includingthe mine’s safety department. Tr. 302.

 

[20]Marshall acknowledged that, had a backboard been used, that would have anindication Hauser was in severe trouble. Tr. 184. However, according toMarhsall that was not the case and Hauser walked out of the hoist cage on hisown. Tr. 184.

[21]Crum offered a great deal of testimony regarding Solvay’s internal process forevaluating the severity of injuries, as well as the forms and guidance reliedupon during that process. Tr. 311-317; Jt. Ex. 13.

 

[22]Inspector Gust has been with MSHA for close to 20 years. Tr. 12. During that time,he has held positions including inspector, supervisory inspector, districtsafety specialist, accident investigator coordinator, and staff assistant tothe district manager. Tr. 12-13. He has investigated between 30 and 40 seriousor fatal accidents, some of which involved roof falls. Tr. 14-15. 

[23]Gust testified that, even if he were to use the mine’s measurements of therock, the rock would have still weighed 800 pounds. Tr. 67.

 

[24]Gust explained that when a concussion occurs one cannot know the severity rightaway, nor can one know the short-term or long-term effects of the injury. Tr.26.

 

[25]Gust testified that he was aware of a fatality at another mine where loosematerial fell from the roof, struck a miner, and drove them to the ground. Tr. 14-15,64. In that instance the miner passed while being transported to the hospital.Tr. 64. In a separate matter at another mine an individual was struck by apiece of rock smaller than what fell here and the miner made it to the hospitalbefore dying from their injuries weeks later. Tr. 64.

[26]Gust testified that when traveling to the site of the incident he observed loosematerial in many areas, including an area only a couple feet from where Hauserwas injured, that needed to be scaled or supported. Tr. 31-32, 35, 54-55, 71. Basedon his observations, and a review of the preshift reports, Jt. Ex. 10, he didnot believe the operator was doing enough scaling. Tr. 53, 55.

[27]50.10(b) implements section 103(j) of the Mine Act, 30 U.S.C. § 813(j), whichstates, in pertinent part, as follows:

 

In the event ofany accident occurring in any coal or other mine, the operator shall notify theSecretary thereof and shall take appropriate measures to prevent thedestruction of any evidence which would assist in investigating the cause orcauses thereof. For purposes of the preceding sentence, the notificationrequired shall be provided by the operator within 15 minutes of the time atwhich the operator realizes that the death of an individual at the mine, or aninjury or entrapment of an individual at the mine which has a reasonablepotential to cause death, has occurred.

[28]Gust testified that during his investigation Respondent stated that the rockmay have hinged on a roof bolt plate and swung and hit Hauser. He disagreedwith this theory and testified that the impression in the roof from which therock fell was nowhere near a bolt plate. I credit Gust’s testimony on thispoint.

 

[29]Mattinson, Marshall and Crum, the three mine management officials who appearedat hearing, all testified regarding their lack of knowledge regarding the sizeof the rock that struck Hauser in the head. Notably, McGillis, a trained firstaid responder, agreed that head injuries can be serious and it would have madea difference to her what size rock had hit Hauser. However, that informationwas never offered, nor was it available. This lack of knowledge regarding acritical piece of information needed to evaluate the nature of the injury is atthe core of my finding a violation in this case. However, it is important thatthe parties recognize that in finding a violation I am not faulting Respondentfor the fact that it lacked knowledge regarding the size of the rock that hitHauser, but rather because Respondent did not recognize it lacked this criticalinformation. In failing to recognize that it lacked this information,management knowingly made, or at the very least should have known it wasmaking, an uninformed decision regarding whether to immediately report Hauser’sinjury.

[30]At least one other Commission judge has reached the same conclusion. In *RedRiver Coal Company Inc*., 39 FMSHRC 368 (Feb. 2017) (ALJ), former JudgeFeldman affirmed a violation of 50.10(b) where a miner was struck in the headby a 50-pound metal disc. In affirming the citation he stated that “[b]luntforce trauma to the head, even in circumstances where a miner demonstratesstable vital signs and minimal blood loss, must be considered potentiallyfatal. For it is common knowledge that potential swelling or bleeding in thecranial cavity poses a significant risk of death. Notably, the preamble to thefinal rule for section 50.10 includes concussions and major upper body bluntforce trauma as types of injuries that must be immediately reported[].” *Id*.at 391-392 (internal citation omitted).

[31]I credit Gust’s testimony that during his investigation he observed loose materialthroughout the mine both as he traveled to the 6 Bore Miner Panel, as well asin the immediate vicinity of where the subject roof fall occurred. Had Solvayproperly notified MSHA of Hauser’s injury, an investigation may have discoveredthat loose material before miners in the area were exposed to further potentialinjury. Notably, mining resumed in the panel later the same day Hauser sufferedhis injury.

[32]I note that Inspector Gust issued four citations for these conditions duringhis inspection of the No. 6 panel where the accident occurred. I approved asettlement of these citations on August 5, 2021, in WEST 2020-0315-M. All fourcitations were designated as significant and substantial and Solvay did notdispute that designation in reaching a settlement.