**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

 
| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

        Petitioner,

 

                        v.

 

CANYON FUEL COMPANY, LLC, 

         Respondent, 

 

       & 

 

DEWEY TANNER, employed by 

 CANYON FUEL COMPANY, LLC, 

         Respondent, 

 

SHANE ALLRED, employed by 

 CANYON FUEL COMPANY, LLC, 

         Respondent, 

 

JAKE WILSON, employed by 

 CANYON FUEL COMPANY, LLC, 

         Respondent, 

 

JED GORDON, employed by 

 CANYON FUEL COMPANY, LLC, 

         Respondent, 

 

MICHAEL COOPER, employed by 

 CANYON FUEL COMPANY, LLC, 

         Respondent.                                                                                                   |   |   | CIVIL  PENALTY PROCEEDINGS

 

Docket No. WEST 2021-0188 

A.C. No. 42-01566-532508 

 

Docket No. WEST 2021-0229 

A.C. No. 42-01566-535306 

 

Docket No. WEST 2021-0254 

A.C. No. 42-01566-536066 

 

 

Docket No. WEST 2021-0314 

A.C. No. 42-01566-540906 A 

 

 

Docket No. WEST 2021-0315 

A.C. No. 42-01566-540910 A 

 

 

Docket No. WEST 2021-0317 

A.C. No. 42-01566-540907 A 

 

 

Docket No. WEST 2021-0318 

A.C. No. 42-01566-540908 A 

 

 

Docket No. WEST 2021-0319 

A.C. No. 42-01566-540909 A 

  Mine: Skyline  Mine #3  |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISIONAND ORDER**

 

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

                                    Arlington,Virginia, for the Petitioner

 

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

                                    Arlington,Virginia, for the Petitioner

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

                                    Pennsylvania,for the Respondent

 

Before: JudgeYoung

 

**SUMMARY**

 

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

 

Fact of violation                     Yes                                          p.13

S&S                                         Yes                                          p.14

Negligence                              Moderate                                 p.16

Unwarrantable Failure            No                                           p.18

Penalty                                                $25,000.00                  p.19

** **

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

 

Fact of violation                     Yes                                          p.20

S&S                                         Yes                                          p.33

Negligence                              High                                        p.35

Unwarrantable Failure            Yes                                          p.37

Penalty                                                $50,000.00                  p.42

 

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

 

            Shane Allred                           $1,000.00                                p.47

            Michael Cooper                      $1,500.00                                p.49

            Jed Gordon                              NoLiability                            p. 49

            Jake Wilson                            NoLiability                            p. 49

            Dewey Tanner                        NoLiability                            p. 49

 

**I.              ****INTRODUCTION**

 

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

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

 

**II.        STANDARDS**

 

**A.        Violation**

 

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

 

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

 

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

 

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

 

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

 

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

 

**C.        Negligence**

 

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

 

**D.            ****UnwarrantableFailure**

 

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

 

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

 

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

 

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

 

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

 

            Anobjectively reasonable, good faith belief in a violative practice’s complianceis a defense against unwarrantable failure. *IO Coal Co.*, 31 FMSHRC at1357.[3] A respondent must thereforepresent facts demonstrating both a good faith belief, and the reasonableness ofthat belief. *See W. Ala. Sand & Gravel, Inc.*, 37 FMSHRC 1884, 1888(Sept. 2015) (“A party’s conclusory statement that it acted in good faithcannot be treated as a binding determination of material fact.”).

 

**E.        Penalty**

 

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

 

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

 

30 U.S.C. § 820(i) (2006).

 

**F.         Individual Liability**

 

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

 

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

 

 

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

 

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

 

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

 

            Section110(c) liability is predicated on aggravated conduct more than ordinarynegligence. *BethEnergy Mines, Inc.*, 14 FMSHRC 1232, 1245 (Aug. 1992).[4] A judge may use the factors foraggravated conduct that the Commission expressed for an unwarrantable failureanalysis. *See Matney*, 34 FMSHRC at 784 (citing *Mid-Continent Res.,Inc.*, 16 FMSHRC 1218, 1222 (June 1994)) (“The judge erred by failing toreconcile his unwarrantable failure findings with his section 110(c)analysis.”).[5] A circuit court recently reviewedand reinstated a judge’s individual liability findings based on factorscomparable to those for unwarrantable failure. *Northshore Mining Co. v.Sec’y of Labor*, 46 F.4th 718, 729, 739 (8th Cir. 2022) (upholding anunwarrantable failure finding and reinstating individual liability findingsagainst agents for failure to maintain an elevated walkway in good condition,resulting in injury).[6]

 

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

 

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

**III.         ****FactualFindings**

** **

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

 

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

 

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

 

MichaelCooper, the mine safety manager, was informed of the incident by Conspecshortly thereafter. Tr. 301–02.[12] He reported the incident to JedGordon, the operations manager, between 5:20 and 5:25. *Id.* at 336. Mr.Cooper then informed Jake Wilson at 5:30. *Id.* at 373. He finallyinformed Dewey Tanner between 5:30 and 5:40. *Id.* at 435. The samelimited information was given to all of them: Mr. Adams had been covered withcoal on the longwall. *Id.* at 335–36, 374. 437.

 

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

 

            Ittook approximately 30 minutes to uncover Mr. Adams. Tr. 235.[13] During this time, Mr. Allred spokewith Mr. Wilson again while en route to the site, but he did not ask anyquestions or receive any further information about Mr. Adams’ injuries duringthe trip. *Id.* at 262–63, 265–66. Mr. Adams was loaded onto a backboard,supplied with oxygen, and covered with a blanket. *Id.* at 39, 236.

 

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

 

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

 

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

 

            Mr.Adams was loaded onto the mine ambulance to be evacuated to the surface. Mr.Anderson and Mike Allred, Mr. Adams’ work group supervisor, Tr. 84, rode withhim. *Id.* at 270.[14] Mr. [Shane] Allred told miners tostay out of the area until they could evaluate; he knew Messrs. Gordon andWilson were on the surface and would come inspect. *Id.* at 273. He then calledMr. Cooper to review the injuries and decide whether the incident wasreportable. *Id.* at 273–74. He told Mr. Cooper that he did not think itwas reportable. *Id.* at 274.

 

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

 

            Whilethese calls occurred, Mr. Adams was being further tended to on his way out ofthe mine. Mr. Anderson rewrapped his head wound, noting that “[he] could seehis skull,” and “it was dented in.” Tr. 93.[15] Mr. Adams continued to experiencesignificant pain in his neck, head, and right leg and knee. *Id.* at 41,42. Mr. Adams recalled feeling sick, cold, and clammy, and Mr. Andersonbelieved he went into shock. *Id.* at 40–41, 95, 97. Mr. Andersontestified that he ran out of oxygen to give Mr. Adams after 40 crosscuts, abouthalf-way through the trip. *Id.* at 40, 95.

 

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

** **

MartyWilson, a responding county paramedic, testified that Mr. Adams did not seem tobe in danger of death at the time. Tr. 471–72. In explaining her conclusion,she said that Mr. Adams was talking and coherent and could move allextremities; his pupils reacted normally; he had good blood pressure; his pulseshowed no signs of shock; his respiration and oxygen were acceptable; he had agood Glasgow coma score;[16] he had a perfect revised traumascore; and he had favorable scores regarding a head injury. *Id.* at464–72.

 

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

 

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

 

            Messrs.Gordon and Wilson testified that one of the props that had been set prior to theincident that injured Mr. Adams had been dislodged, and that similarly placedrib mesh was still attached to the roof where coal had fallen from beneath. Tr.345–46, 381–82. These had been installed after a similar incident, at a ribinby the same section, five days earlier [August 20, 2020] that buried an 8 Baycontroller. *See id.* at 46, 241, 280, 357, 418; Ex. GX-2, DOL 0037. Thoughproduction did not continue that shift,[17] Mr. Gordon testified that he andothers continued on to inspect the longwall. *See* Tr. 347 (“[W]econtinued on, we traveled the face to make sure there were not more existingconditions or more existing conditions that would cause another problemsomewhere.”).

 

            Mr.Cooper arrived at the hospital before Mr. Adams’ wife, Aubrey, but he wasunable to enter to observe Mr. Adams because of COVID restrictions. Tr. 74–75,308. Ms. Adams testified that her impression was that her husband’s injurieswere very serious, that multiple doctors were involved in his treatment, andthat he was in pain. *Id.* at 77–78.

 

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

 

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

 

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

 

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

 

            JohnLewis, an MSHA electrical, roof control and ground control supervisor, visitedthe mine with Mr. Whitman on August 27 and traveled underground to inspect. Tr.166–67. He testified that the pillars were “not yielding like they should,”claiming they were too big. *Id.* at 167–70.[20] Neither Mr. Lyons nor Mr. Lewisissued a K-Order. *Id.* at 130, 176.

 

**IV.       ORDER NO. 8541891**

** **

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

 

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

 

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

 

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

 

*Id.* DOL 0037–38.

** **

**A.            ****Violation**

 

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

 

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

 

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

 

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

 

 

 

 

**B.        Gravity**

 

**1.         Likelihood**

 

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

 

**2.         Severity**

 

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

 

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

 

**3.         Numberof Persons Affected**

 

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

 

**4.         S&S**

** **

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

 

**a.         Step 1: The violationhas been established.**

 

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

 

 

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

 

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

 

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

 

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

 

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

** **

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

** **

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

 

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

 

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

 

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

 

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

 

**C.        Negligence**

** **

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

 

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

 

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

 

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

 

            Respondentdid not address negligence directly, but it noted in its unwarrantable failureanalysis that a similar [vacated] citation for a roof control plan violationwas designated “moderate.” Resp’t Br. 44.[22] Respondent argued that it plannedand maintained adequate pillar design, conducted rib bolting and meshed theribs, and installed additional supports between August 20 and the presentincident. *Id.* at 45. Respondent only cites its own witnesses’ directexamination testimony to make this claim, however.

 

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

 

            Mr.Lewis testified that he noticed that the pillars in the area were not yielding asthey should. Tr. 167–70. Respondent produced Jason Layton, the operator’sengineering manager, to testify that the same-sized pillars were approved byMSHA for a new district. *Id.* at 405.[24] He claimed there was no indicationthat a pillar would fail on August 25, *id.* at 414–15, but wassubsequently asked on cross-examination if the failure of the pillar inby thesame section on August 20 was an indication, *id.* at 418.

 

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

 

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

 

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

            Mr.Allred testified that there was mesh, though some had come down, and two out ofthree props remained in place. Tr. 271–72.[25] This was confirmed by Mr. Gordon,who testified that he went underground to check out the area and found one ofthe props had been dislodged by the rib burst. *Id.* at 346. Mr. Wilsonwas with Mr. Gordon, and he testified that props remained, and rib mesh wasstill attached at the top of the roof and coal had fallen from underneath. *Id.*at 381–82. Mr. Gordon, however, did acknowledge that Mr. Bonnanci told himabout the August 20 burst—that a bolt had broken, and mesh rolled over onto the8 Bay. *Id.* at 357–58. Respondent was thus on notice that its mesh andbolts in the area were inadequate to prevent a rib burst. 

 

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

 

**D.        Unwarrantable Failure**

 

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

 

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

 

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

 

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

 

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

 

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

 

**E.        Penalty**

 

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

 

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

 

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

 

**V.        ORDER NO. 8541892**

 

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

 

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

 

*Id.*

 

**A.            ****Violation**

 

Thecited provision states, “The operator shall immediately contact MSHA at oncewithout delay and within 15 minutes . . . once the operator knows or shouldknow that an accident has occurred involving: (b) an injury of an individual atthe mine which has a reasonable potential to cause death.” 30 C.F.R. §50.10(b). The Secretary asserts this incident caused at least reasonable doubtwhich should have favored notification, and that Respondent myopically focuseson assessment of whether Mr. Adams’ injuries were life threatening. *See*S. Br. 12 (citing *Signal Peak Energy, LLC*, 37 FMSHRC 470, 474 (Mar.2015)).

 

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

 

**1.         Standards**

 

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

 

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

 

[R]eadily available informationsuch as the nature of the accident is highly relevant in determining whether aninjury is reportable, while permitting operators to wait for a medical orclinical opinion would “frustrate the immediate reporting of near fatalaccidents.”

 

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

 

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

 

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

 

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

 

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

 

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

 

Buta doctor’s assessment of something as “life-threatening” is irrelevant to the *initial*determination. *See id.* at 477 (citing *Consolidation Coal Co.*, 11FMSHRC 1935, 1936–38 (Oct. 1989)) (“By waiting for a medical opinion at thehospital rather than spending that time gathering readily availableinformation, information which in this case would have been sufficient totrigger the notification requirement, Rice failed to conduct a sufficientlyprompt investigation.”).

 

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

 

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

 

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

 

*Id.* (emphasis added).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

*Id.* at 2887.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

*Id.* (emphasis added).[27]

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

** **

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**a.         Totalityof the Circumstances**

 

            Thenotification from which the 15-minute MSHA notification window began to run wasmade to Mr. Allred at 5:08 p.m. *See Signal Peak*, 37 FMSHRC at 476 (“Oncea person with sufficient authority to call learns of an event injuring a miner,the clock begins to run on the period for evaluation of whether the injurypresents a reasonable potential to cause death and a determination of whether acall is required.”).[30]

 

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

 

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

 

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

 

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

 

Respondentrelies heavily on the arguments that Mr. Adams was conscious and coherent,[31] and that nobody thought or statedthat his injuries were life threatening. *Id.* at 14, 16–17. Both areirrelevant, however.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Thatinformation was not initially known to Messrs. Allred or Cooper (or Mr. Gordon,though the record does not definitively demonstrate that he was notified withinthe 15-minute window). But importantly, neither *inquired* into any of Mr.Adam’s injuries.[36] An operator cannot escape its dutyto report by remaining uninformed of possible injuries. *See Mainline Rock& Ballast, Inc*., 693 F.3d at 1189. Like *Mainline*, knowledge of asignificant laceration, and likely skull fracture, *if inquired about*,would have demonstrated a need to notify MSHA. *See* Tr. 93, 243(demonstrating that Mr. Anderson “could see his skull” and it was “dented in,”and that Mr. Bonnanci saw “a pretty good gouge in his forehead”).

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**B.        Gravity**

 

**1.         Likelihood**

 

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

 

**2.         Severity**

 

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

 

**3.         Numberof Persons Affected**

 

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

 

**4.         S&S**

** **

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

 

**a.         Step 1: The violationhas been established.**

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

** **

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

 

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

 

**C.        Negligence**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**D.        UnwarrantableFailure**

 

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

 

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

 

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

 

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

 

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

 

            Bothparties are incorrect in their use of Mr. Adams’ determined injuries to claimknowledge or lack thereof. Respondent should have known[43] of the violation—that it wasrequired to notify MSHA—within 15 minutes after the report to Mr. Allredbecause of the nature of the incident and its inability to know the attendantinjuries. I have found that material falling from a rib and covering a minerare sufficient for a reasonably prudent, experienced miner to assess that anincident has a reasonable potential to cause death. *See* Section V.A.2., *supra*.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**8.         Conclusion**

 

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

** **

**E.        Penalty**

 

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

 

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

 

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

 

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

 

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

 

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

 

**A.        EachCited Respondent Was an Agent.**

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Mr.Cooper could not have known this until his conversation with Mr. Allred at5:48, at the earliest. Further, he received a call from Mr. Wilson, who hadarrived at the surface and seen Mr. Adams loaded into the county ambulance. Tr.439. Mr. Wilson informed him that Mr. Adams was in good shape, that materialhad rolled out underneath the rib, and that the incident was not immediatelyreportable. *Id.* at 439–40.

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**1.         ShaneAllred**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

**2.         MichaelCooper**

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**VII.     CONCLUSION**

 

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

 

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

 

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

 

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

 

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

 

 

 

 

/s/Michael G. Young

                                                                        MichaelG. Young

Administrative Law Judge

 

 

 

 

Distribution(First Class Mail and email): 

 

Jason S.Grover, Office of the Solicitor, 201 12th Street South, Suite 401, Arlington,VA 22202, grover.jason@dol.gov

 

RebeccaMullins, Office of the Solicitor, 201 12th Street South, Suite 401, Arlington,VA 22202, mullins.rebecca.w@dol.gov

 

R. HenryMoore, Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA15222, hmoore@fisherphillips.com

----

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

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

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

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

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

 

            Anotheropinion has also noted this confluence, stating:

 

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

 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[30] Mr. Cooper wasnotified by Conspec. Tr. 301–02. Mr. Allred called Conspec, to request Mr.Anderson [EMT], upon report of the incident from Charlie Wilson. *Id.* at264. Nothing in the record demonstrates whether Conspec was already aware andhad notified Mr. Cooper, or if it notified Mr. Cooper after the call from Mr.Allred. Mr. Gordon testified that Mr. Cooper called him between 5:20 and 5:25. *Id.*at 336. I therefore can only infer that Mr. Cooper was notified before 5:20,not that anyone was notified before 5:08.

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

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

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

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

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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