FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

June 11, 2012

DECISION

Appearances:              Karen E. Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for the Petitioner;

                                    R. Henry Moore, Esq., Jackson Kelly, Pittsburgh, Pennsylvania, for the

                                    Respondent.

Before:                        Judge Moran 

Introduction.

            On December 23, 2009, Signal Peak Energy miner Mike Stewart, working in a travelway adjacent to a longwall, was propelled some 50 to 80 feet from a blast of air produced by a roof cave behind longwall shields, numbers 1, 2 and 3. As will be discussed, the record shows that Mr. Stewart’s injuries from that blast were significant and serious. Respondent Signal Peak Energy never informed MSHA about the event; MSHA only learned of it through a reporter’s inquiry. MSHA then investigated the matter and cited the Respondent for failing to notify it of an injury to a miner which has a reasonable potential to cause death. The standard, 30 CFR § 50.10, entitled “Immediate notification,” in relevant part, obligates a mine operator to contact MSHA “at once and without delay” once it knows or should know that an accident has occurred involving an injury of an individual at the mine “which has a reasonable potential to cause death.” For the reasons which follow, the Court affirms the violation and an associated violation for its failure to preserve the accident site. Further, the Court assesses civil penalties totaling

$ 83,750.00.

The Cited Standards.

30 CFR § 50.10 provides, in full: “Immediate notification. The operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving: (a) A death of an individual at the mine; (b) An injury of an individual at the mine which has a reasonable potential to cause death; (c) An entrapment of an individual at the mine which has a reasonable potential to cause death; or (d) Any other accident.” (emphasis added).

30 CFR § 50.12 provides, in full: “Preservation of evidence. Unless granted permission by a MSHA District Manager, no operator may alter an accident site or an accident related area until completion of all investigations pertaining to the accident except to the extent necessary to rescue or recover an individual, prevent or eliminate an imminent danger, or prevent destruction of mining equipment.”

30 C.F.R. § 50.10(d). MSHA also maintains that the mine’s actions, or more accurately, its lack thereof, also violated the immediate reporting obligations under 30 C.F.R. § 50.10(d). That subsection, as just noted, requires the same notification requirement, that is a notification “at once and without delay,” for “[a]ny other accident.” As applied here, MSHA applies the “any other accident” provision to subsection 50.2 (h)(8) which, among many aspects encompassing the term “accident,” includes “[a]n unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage.”

Preliminary Matter.

The Respondent’s contention that 30 C.F.R. § 50.10 is not a mandatory standard.

            Respondent argues that the provisions cited in this case are merely regulations and, as distinct from mandatory health and safety standards, no significant and substantial finding may be attached to regulations. The reasoning behind the putative regulation and standard distinction is that Section 3(l) provides a definition of a mandatory health or safety standard and any rules or regulations arising under authority other than that provision are not mandatory.

            The Secretary, citing Secretary v. Wolf Run Mining Co., Dkt. No. WEVA 2008-1417 (July 2, 2010) (Judge Zielinski), and Secretary v. Pine Ridge Coal Co., 33 FMSHRC 987, 2011 WL 1924269 (April 29, 2011) (Judge McCarthy), contends that 30 C.F.R. § 50.10 “became effective on March 9, 2006 as an emergency temporary standard and was later published as a Final Rule on December 8, 2006, as part of the rulemaking process initiated pursuant to Title I, Section 101, of the Mine Act,” and accordingly, through that action, it is a mandatory standard, enforceable under Section 104 of the Mine Act. Sec. Br. at 38.

             Little needs to be said about this claim because Section 50.10 was published pursuant to section 101 and therefore it is a mandatory standard. The mandatory standard became effective on March 9, 2006, and the tried and tired claims made that somehow this was ineffective or insufficient rulemaking are reminiscent of the tax protester claims that the Sixteenth Amendment was improperly ratified. Accordingly, per the cases cited by the Secretary in her post-hearing brief and in light of the Agency’s bona fide rulemaking actions, further comment is unwarranted.

Findings of Fact  

            Wayne Vincent Johnson, has been an MSHA coal mine Inspector for six years, working out of that Agency’s Gillette, Wyoming Field Office. The Inspector informed that around December 28^th, MSHA received a call from a Billings, Montana newspaper reporter, inquiring about an accident that had occurred at the Respondent’s mine which is located near Roundup, Montana. Ultimately this led to MSHA making an inquiry about the matter at the mine, as initiated by Dave Hamilton, Johnson’s supervisor at that time at the Gillette office. Tr. 40. MSHA then spoke with the mine’s Tom Rice about the reported incident and Johnson was directed to go to the mine to learn more about the matter. Tr. 41. MSHA had learned that an injured miner, Mike Stewart, was at the St. Vincent’s Hospital in Billings and that hospital was the Inspector’s first stop the next morning. When Inspector Johnson arrived at the hospital, on December 29^th, which was six days after the accident had occurred, he learned that Mr. Stewart “had three surgeries already.” Tr. 42. GX 11, the injured miner’s hospital records. The injured miner’s first surgery was a “left chest tube,” on December 25^th. This was followed by a right chest tube the next day, and then a third surgery, a T-9 thoracotomy, fusion for a burst thoracic vertebrae. Miner Stewart’s other injuries included fractures of the left scapula, ribs, and sternal fractures. Tr. 46.

            The Inspector then traveled to Roundup Memorial Hospital, which was the first hospital that treated the injured miner. Tr. 47 and GX 23, the Hospital and ambulance records. At that hospital, the Inspector spoke with Dr. Flannery and Diane Newman, the latter being with the hospital’s records department. Dr. Flannery informed the Inspector that he had approved the miner’s “life-flight” and when specifically asked by the Inspector if he considered the miner’s injuries to be life-threatening, he advised the inspector “absolutely, yes.” Tr. 49. To be sure that the Inspector and the doctor were, so to speak, on the same page, the Inspector related to the doctor MSHA’s intent when it refers to a “life-threatening” injury. The Inspector testified that the doctor reaffirmed his position, telling him, “absolutely, this type of mechanism of injury, of an individual being blasted 50 to 80 feet down an entry . . . [caused the doctor to be concerned] with internal injuries inside his thoracic cavity, lungs, heart, bleed[ing],things like that, things that are unknown at the accident scene.” Tr. 50. The Inspector advised the doctor and Ms. Newman that he would be writing down specifically the doctor’s quote as to the miner’s condition. The information also included that the miner was in pain at a 10 level, on a 1 to 10 scale. Tr. 50, 52. The miner, on his side to ease that pain, had a broken sternum, broken collarbone, and broken vertebrae, displayed a large bump in his back and, with labored breathing, was in “intense pain.” Tr. 51. Nor were those were his only injuries, as Stewart had a cut on his head, was bleeding and had other injuries. The Court finds this recounting of the conversation between Inspector Johnson and Dr. Flannery and Ms. Newman to be credible and it is a finding of fact and the alternative version of Dr. Flannery’s view is rejected.

            Having visited both hospitals, the Inspector then proceeded to the mine. At that point in his investigation, the Inspector felt that he was dealing with an injury to a miner that had the potential to be life-threatening. He also believed that, given the drop behind the roof and the attendant uncontrolled release of energy, other miners were potentially put at risk. This led him to issue a section 103(k) order to stop everything for the safety of the miners, in order to understand the potential safety hazards that could still be present. Tr. 54. GX 12.

             Referring to GX 1 and GX 2, reflecting Citation numbers 8463717 and 8463718, Inspector Johnson acknowledged that he issued those citations on the date reflected at 1815

(i.e. 6:15 p.m.). Tr. 32. GX 3 reflects Johnson’s notes in connection with those Citations. Those notes included statements he took from individuals in connection with his investigation. Regarding GX 1, Citation 8463717, finding a violation of 30 C.F.R. 50.10, Johnson stated that the standard pertains to the duty of a mine to report an accident to an individual within 15 minutes if the mine knew or should have known that an accident occurred that has a reasonable potential to cause death. Tr. 37. Johnson noted that the term “accident” is defined further at 30 C.F.R. 50.2, which identifies 12 criteria that meet the definition of “accident.” Tr. 38.

            The Inspector explained that MSHA knew the mine had begun mining their longwall and that it was the first longwall for this mine. In advancing the longwall cut, the roof behind the shields had some severe drops in the wall and this phenomenon was affecting the working area. Tr. 55. For that reason, the Inspector issued a (k) order to assess the conditions that were causing “explosive pressures” which expanded beyond the gob area, affecting miners in the working area. The rush of air that resulted in the injury to miner Stewart was greater than anything this mine had encountered. Tr. 56. The (k) order stopped the longwall mining, as by the time the Inspector first arrived, operations had resumed. Tr. 56. The fact that operations had resumed since the accident meant that there was no longer any “accident scene” for the inspector to view. As the mining had advanced some 50 or 60 feet since the time of the accident, the Inspector was “left with trying to piece together what had taken place in [the] area where [the] individual [had been] blasted down the entry.” Tr. 57, 193.

            To appreciate the size of the blast, apart from the harm to the injured miner himself, the Inspector learned that some 78 stoppings were damaged, affecting the mine’s ventilation. Tr. 61. GX 3, at page 5. On the outby area behind the longwall, where it had been mined, almost every stopping had been damaged. Tr. 66. The Inspector noted that sufficient air was displaced by the event that it launched miner Stewart some 50 to 80 feet down the entry. As the accident scene had not been protected, only an estimate could be made as to how far the injured miner was thrown by the blast. Tr. 122. However, the estimate was not the product of pure speculation or imagination. Instead, the estimated distance was derived by the Inspector based on information he was given by the mine from Tom Rice and Bob Lowery, as well as information he obtained from Roundup Hospital. Tr. 123. Making it more reliable, the 50 to 80 feet figure was a consensus figure which those individuals then relayed to the rescuers. Tr.123. As already made clear, this huge displacement of air was created by the initial longwall roof cave. Tr. 63-64. With such a very large number of stoppings impacted, the Inspector stated the obvious: “the ventilation in the mine was disrupted in a great way.” Tr. 64. While indirect information, the government contended that this information was a telling factor informing the mine operator as to the seriousness of the injury. Tr. 62. The Court agrees.

            Speaking to the Secretary’s contention that 30 CFR § 50.2 (h)(2) was violated, Inspector Johnson expressed that it was because, “any person in the area, that reasonable person that was to see what had taken place, the mechanism of injury of blasting somebody down, that far down an entry, the conditions of the broken spine, the labored breathing, he couldn’t breathe on one side, they had to move him to the other side, you don’t know the internal injuries to this [ ] person. You would immediately think that you need to get this individual out of the mine or this person could die from these injuries.” Tr. 66-67.

            As stated earlier, in reaching this conclusion, the Inspector had interviewed miners to learn how the accident took place and what happened underground on the day of the event, December 23^rd. His notes reflect his summaries of those interviews. GX 3, at p. 5. Those notes reflect that Mike Stewart, the injured miner, who was located in the five foot wide travelway, was impacted by the roof cave behind longwall shields, 1, 2 and 3 and that the cave produced an air blast into the stageloader-headgate belt entry, which blast threw the miner as far as 80 feet down the belt entry. Tr. 68.

            This information was derived from multiple sources, including from the mine, and from the Roundup Hospital records. In fact, the mine itself had provided the 80 feet figure, and there was a drawing of the entry where Stewart was blown. Tr. 68. The Inspector spoke with the ambulance crew as well as with the rescue team. This included Ben Harcourt, a rescuer at the mine. Tr. 70. Harcourt told the Inspector that the injured miner “was in excruciating pain, 10 plus on a pain scale, pretty critical. Most life-threatening was his breathing.” Tr. 70. The rescuer could not get the miner’s vitals and he could only breathe on his right side. The miner was in so much pain that the rescuer could not touch his left arm. Aware of the risk of paralysis, because of the mechanism of injury, the individuals involved with removing the injured miner took an hour and a half to remove him from the mine.

            In continuing to become informed about the event and the miner’s injuries, Inspector Johnson’s focus was upon learning about the time frame “not after [the injured miner] arrived at the hospital, but what took place while [he] was injured.” Tr. 72 (emphasis added). Accordingly, he gathered information from the rescue people at the mine, from the ambulance crew which awaited his exit from the mine, and from the first aid which was administered. Tr. 72. The Inspector’s notes reflect the information he gathered from Mr. Harcourt and such notes include that the miner had a large dent in his helmet, that there was a deformity in his back and broken ribs, that C spine precautions were taken because of the concern of paralysis, and that the miner was experiencing pain at a 10 level on a scale of 1 to 10. Tr. 73. The same notes reflect that Harcourt realized that the miner’s injuries could become life-threatening. Tr. 73. GX 4, at 3A. The Inspector was perplexed that Harcourt, the mine foreman, and one of the rescuers, while initially realizing that the miner’s injuries were life-threatening, then reconsidered that assessment. The Inspector also spoke with Kerry Halverson, EMT, who was part of the ambulance crew. Tr. 74, 76. His notes, reflecting his conversation with Halverson, reflect the decision to see about the availability of a life-flight, that the miner’s breathing was not good, and did not display good volume and that, upon seeing his back exposed, raised the life-threatening issue. Halverson works for the Roundup Hospital on its ambulance rescue, and he is not a mine employee. Such was the concern about the miner’s spine and the risk of paralysis, that they kept his spinal cord correct and did not move it. Tr. 75. GX 4 at 3 B.  

            Inspector Johnson did confirm that it was his view that one could make the determination whether an injury has the reasonable potential to cause death based on what an normal person at the scene was presented with when the incident took place and, applying the confluence of the events, and the condition of the injured individual when they found him, such person could make a primary assessment as to whether an injury could cause death. Tr. 181-182. The Court agrees with this approach. The standard is not about making such a determination based on medical certainty. As Johnson also expressed, before the individual even got out of the portal and again at the time the ambulance was called, and yet again when the injured miner left the mine property, at each juncture, the mine had a duty to report. Tr. 182.

            David Hamilton, a MSHA surface specialist from the Gillette, Wyoming field office, also testified. He described his involvement in this matter, the Agency’s issuance of citations on December 29, 2009, GX 1 and 2, explaining that he was the acting field office supervisor on that date. It was then that he learned from Wayne Johnson about the accident at the mine. Hamilton later received a call from Signal Peak’s Tom Rice, a call which was in response to an inquiry about the matter by Inspector Johnson. Tr. 211. Hamilton related his conversation with Rice, who informed that the miner was going to be fine. Tr. 212. This didn’t add up at all to Hamilton, as Mr. Stewart at that point had already been in the hospital for 5 days and, of course, MSHA had not been called, even by then. Tr. 216. It was clear from Hamilton’s testimony, which the Court found to be highly credible, that Mr. Rice was anything but forthcoming. Hamilton asked, for example, if the miner needed stiches. Rice affirmed he did but offered nothing more. Hamilton then had to prompt Rice each step of the way, asking “was there anything else?” To that, Rice responded that the miner had a broken back. Hamilton waited and, as Rice offered nothing more, he again inquired if there was anything else. Rice then responded that the miner had broken ribs. Tr. 212. After another period of silence and another prompt, Rice disclosed that the miner had a broken scapula. Tr. 212. As Hamilton fairly put it, “And I just couldn’t get him to say anything.” Tr. 212. Later, Hamilton expressed that “I just had to pry every piece of information out.” Tr. 215. It was during that same tooth-pulling conversation that Rice disclosed that 78 stoppings had been damaged. Tr. 213.

            Hamilton took notes of the conversation with Mr. Rice. GX 9, Hamilton’s statement regarding the conversation, which was created on January 7^th, pertaining to his December 29^th talk with Mr. Rice. Tr. 214. Hamilton summed up his view that, in complying with the standard, one should err on the side of safety. Tr. 216. Hamilton also noted that, given so many injuries to the miner, so many broken body parts, “there could be something you’re not seeing.” Tr. 217. Given the state of affairs with the conversation with Mr. Rice, Hamilton determined that it was best for Inspector Johnson to go to the hospital “because we just weren’t getting any information [from Signal Peak].” Tr. 217-218. Hamilton then was asked about GX 24, which he identified the first three pages as his notes. It reflects that his aforementioned conversation with Mr. Rice did occur at 11:50 a.m. on December 28, 2009. Tr. 218. Those notes reflect that the injured miner had already undergone two surgeries. Tr. 220. That information came from Inspector Johnson. Tr. 220. Mr. Hamilton made it clear, and the Court finds it to be the case, that when he wrote up his notes, on January 7, 2010, those notes were his best recollection of his phone conversation with Mr. Rice and that there was no attempt to inflate or exaggerate that conversation. Tr. 236.

            Brandon Mobley, an employee of Signal Peak, also testified. Mobley works on the longwall. Tr. 140. As to the time of the event in issue, December 23, 2009, Mobley advised that it was the first major cave of the longwall, but that there had been previous, smaller, cave-ins. Tr. 142. At the time of the December 23^rd cave in, he was located at shield 2 or 3. Referred to GX 8, a map, Mobley advised that it shows how the longwall was set up and that it is an accurate representation of the location of individuals that were involved on the day of the major longwall cave of December 23^rd. Tr. 144. At that time, he and the other miners were walking to the headgate. The area was entered through a crosscut Mobley identified as “where Mike [Stewart] was blasted to.” Tr. 144. He and the others (which he believed involved six miners plus the foreman) were traveling towards the direction of what is labeled as “shield six” on the map. As he arrived at the location of shield 2, the roof was making noises, and then he was advised to ‘hold on,’ although the record suggests that more colorful words of warning were employed to warn him to prepare for the cave in. Tr. 147. Moments later, the blast occurred. Tr. 146. Mr. Stewart was about 15 feet behind Mr. Mobley at the time of the blast. Tr. 146. Mobley grabbed ahold of part of the shield. The air force then hit him on the left side of his face and picked him right out of the mud, which he had been “stuck” in just moments before the occurrence, slamming him into the object he had been holding onto and then he was “face planted” into the mud. Tr. 148. The force was significant enough that one side of his became completely scabbed from the incident and his side was “pretty bruised” as well. Tr. 148. Thus, while the focus is upon Mr. Stewart’s injuries, it should not be forgotten that Mr. Mobley was injured too.

            Bearing upon the mine operator’s claim that initial falls are much like the one that occurred here, Mr. Mobley had a different perspective. The blast, he informed, was unlike any other he had experienced. It was “hard” and, as he noted, it picked his feet right out of the mud he had been stuck in, lifting him some three feet above the ground and blowing his hard hat off. Tr. 152-153. While Mobley knew a big blast would be inevitably coming, he had no idea that it was going to be so hard. Tr. 154. Stewart, he advised, had the misfortune of being in the worst possible area one could be in for the blast, because he was located where the air was going to, and did, travel. Tr. 154.

            After the blast, the miners immediately began to inquire of one another if everyone was okay. Tr. 155-156. It was at that point that they heard Mike Stewart groaning, and communicating that he was not okay. Mobley couldn’t recall the exact words Stewart used, but it was clear that he needed help. Tr. 156. Mobley’s estimate was that Stewart was about 50 feet away. Tr. 157. The miners then proceeded to get Mr. Stewart loaded onto a backboard, and Mobley saw that Stewart had something “like a hump in his back.” Tr. 157. It looked like a triangle on his back and, strikingly, the hump was visible “under his jacket and clothes . . . in the middle of his back.” Tr. 158. Mobley agreed that the miners wear thick jackets, yet the hump was still visible. Tr. 158. The hump was significant enough that Mobley told them they should not strap Stewart down on the backboard. He was worried because none of them knew just how serious the issue was with Stewart’s back. Mobley had basic first aid training but he is not an EMT. Stewart told them his back was hurt and he was having “a hard time breathing.” Tr. 162. Mobley understood that Stewart had been “really hurt” because he did not want to be moved. They also knew that he was unable to get up and walk. Tr. 163. Mobley’s foreman told him to advise dispatch that an ambulance was needed. Tr. 164. On a scale of 1 to 10, Mobley described Stewart’s pain as an 8 or 9.

            As they slowly transported Stewart out of the mine, they met up with Ben Harcourt and shortly thereafter oxygen was administered to the miner, but the oxygen didn’t make his breathing any easier. Tr. 168. Mobley stated that all of the miners were concerned about Stewart’s condition. As he expressed it: “[A]ll of us were concerned, period.” Tr. 168. Though on the trip out, Stewart tried to sit up, he had to lie back down on his side. Tr. 170. Even though miner Mobley was not injured to the extent that Stewart was, management recognized that Mobley should go to the hospital too, as they were concerned that he might have suffered a concussion. Tr. 171.

            Mr. Kerry Halverson, a self-employed roofing contractor who is also a certified, and current EMT, testified. He’s been an EMT for nine years. Tr. 241. He also works as a part-time volunteer on the Musselshell County Ambulance. Tr. 241. In his experience, he has been called to Signal Peak about six times, responding to injuries ranging from a miner who hurt his back, to an individual whose head got crushed, and to an instance where a miner incurred a foot amputation. Those experiences aside, Halverson did respond to the December 23, 2009 event at the mine involving Mr. Stewart. He recalled that the ambulance had arrived even before the miner had come out of the mine. When Mr. Stewart was removed, Halverson observed that he was “coated with coal dust.” Tr. 243. He noted particularly that the miner’s face “almost looked like a mask, it was coated so heavy.” Further, while he was conscious, Halverson added, “I don’t know that I would have called him alert and oriented.” Tr. 244. Later, Halverson took a step back from that characterization, noting that the miner did respond appropriately to questions, and it “may have been just the pain.” Tr. 246.

            Mr. Stewart told Halverson that “he couldn’t breathe when he was on his back . . . and [it was noted that Stewart] had a deformity in his back . . . [and so the decision was made to] put him onto the gurney and . . . [to keep his] head in an inline position so the cervical spine [would not ] twist or bend at all.” Tr. 244. EMT Halverson was concerned that the miner could have a broken back, because he had a lot of pain in the spine. Tr. 246. Thus, among other worries, with the miner’s spinal injury, the EMT was concerned about a possible cervical spine injury; nor could he rule out internal bleeding or internal damage. Tr. 247. The EMT believed that there was a reasonable possibility that internal bleeding or internal injuries could be involved because of the “mechanism of injury,” as he had been advised that he had been “blown through the air 70 to 100 feet,” which he described as “a pretty good blast to move somebody that far . . .[a]nd then at the end of that travel, he hit a wall or ladder or both . . . so there’s . . . a pretty good chance that there’s going to be something hurt inside.” Tr. 248.

            As he saw that the miner “had a lot of pain in his spine.” Halverson called his dispatcher to see if she “could call help flight and check on [its] availability.” Tr. 245. The decision to inquire about a life flight was prompted by the mechanism of injury and the deformity in the miner’s back. Also a factor, as he had noted earlier, the miner had “a lot of pain in his spine.” Tr. 249. The bottom line was Halverson’s assessment that Mr. Stewart injuries presented a reasonable potential to cause death. Tr. 249-250. As he summed it up, there were a number of things at work; the miner had taken “a good blast,” it had thrown him up against a wall, he had broken ribs, probably a broken back, and no one knew what was going on inside. That could include things like a liver laceration, a ruptured spleen, bleeding in the brain which wasn’t showing up significantly yet. Any one of those, Halverson noted, could result in death. Tr. 250, 253.

            Mike Stewart, the injured miner, was called by the Respondent. Tr. 426. Stewart has been employed as a mechanic since he began working at Signal Peak Energy. Tr. 426. When the accident occurred, Stewart was at the No. 1 headgate drive motor. Tr. 428. After the event, he described his location as “on the opposite side of the crosscut, just a foot or two from the rib.” Tr. 428. Although, following the air blast, he tried to get up, he was only able to get up “partially” and then he “laid back down.” Tr. 429. When fellow miners called out, asking if he was okay, he “yelled back no.” Tr. 429. As the miners started to remove Stewart from the mine, using a backboard, he “hurt quite a bit” and he asked that they “not [] roll me over [,but rather that they] get the backboard under me in the position I was in.” Tr. 430. He remained on his side as they transported him out of the mine on the mantrip. Tr. 431. During his transport to the surface he was given oxygen as he “was having trouble breathing.” He admitted that he “couldn’t get a full breath of air” and he was “struggling to breath a little.” Tr. 433. As he was “still having trouble breathing,” he asked to try and sit up. He then tried to do that but he “could not sit up.” Tr. 431. Stewart told all of his rescuers that he had a clotting problem, as doctors had advised him to alert others of that condition if a medical issue arose. Tr. 432. He also recalled that, once outside the mine, he heard people state that he was going into shock. Tr. 435. Stewart stated that he was given a choice of going first to the nearby Roundup Hospital or instead going directly to the Billings Hospital. He opted for Roundup because “the pain medication sounded pretty good.” Tr. 433. In the Court’s view, Mr. Stewart’s testimony lends support to the conclusion that his injuries presented a “reasonable potential” to cause death. Struggling to breathe, in great pain, unable to be but in one position because of that pain, and having alerted his rescuers that he had the existing medical complication of a “clotting problem,” all those signs combined to present a serious set of circumstances.

            Mr. Benny Harcourt, who is a shift foreman at Signal Peak, was called by the Respondent. Tr. 354. He has his mine foreman papers, and is an EMT, an “EMT B” as he described it, with the “B” standing for “basic,” and he is an EMT at Signal Peak. Tr. 356, 359. Before the accident in issue here, Harcourt had become certified as an EMT about eight months earlier, so it is fair to say that his practical experience at that point in time was limited. Tr. 385. On the day of the accident, Harcourt was the shift foreman on the afternoon shift. Tr. 360. There had been discussions about when that first cave would occur, as it was “getting out there to where we would usually have it, if not a little farther than that.” Tr. 361. He related that there had been conversations with others about what they could do “to get it to go ahead and cave in on us.” Tr. 361. It was Harcourt’s estimate that there were some 80 to 90 feet exposed with no initial fall having occurred. Tr. 361. The discussions included telling miners, especially novices, of the signs just before the “big cave” would occur. Tr. 362. The thrust of Harcourt’s testimony in this regard was to suggest that the fall that occurred here was not all that unusual in his mining experience and he related stories he had heard about such other large falls.

            It was also obvious to the Court that production was Harcourt’s uppermost concern. Thus, when he learned of the large cave, he told men to “get ready because . . . there was probably going to be some major damage . . . [and they would have to] get ready to go start re-establishing ventilation up towards the longwall.” Tr. 365. Knowing that they “lost ventilation up at the longwall, [they had planned] to get everybody up there to help re-establish ventilation so that we could get back mining longwall.” Tr. 365-366.

            Harcourt then learned “that people were hurt up at the longwalls.” Tr.366. Upon arriving near the area where injuries were reported, he met miners about 700 feet out from the face, near the power centers of the longwall. Tr.366. Mr. Stewart was in the back of the truck and Harcourt got his first look at him then. Tr. 367. Harcourt, upon first viewing Stewart, noted that he had a cut on the top of his head, “a pretty good cut, . . . an inch and a half, two-inch cut” and that he was covered in mud. As he continued to see Stewart’s injuries, he then observed a “kind of hump on his back . . . [and he saw] where the ribs were broke away . . . they were broke out . . . .” He did not see any other injuries. Tr. 367-368. Harcourt assessed that Stewart was alert and conscious. Tr. 369. He added that Stewart told him that “it hurt to breathe,” which was not surprising as he realized that the miner had broken ribs. Tr. 370. While in the process of transporting him out of the mine, there were limits to the assessment he could make; he did not undress the miner, had no stethoscope, and did not take his pulse. Tr. 371-373. Further, with the limited ability to examine the miner, Harcourt did not realize that Stewart also had a broken sternum. Tr. 382. Oxygen was administered as a first aid treatment and to address the possibility that the miner was in shock, as Stewart told him he was feeling queezy and lightheaded, both being first signs of shock. Tr. 376.

            Another indication that Stewart’s injuries could be quite serious, they were careful to remove him from the mine “very slow[ly].” Tr. 376. When Stewart was in the ambulance, Harcourt did take his pulse, finding it “ungodly . . . [i]t was only in the 80's,” as he recalled. Based on shining his cap lamp in the miner Stewart’s eyes, Harcourt believed there was no brain trauma. Tr. 374. However, they were unable to take the miner’s blood pressure, even while transporting him to the hospital. Tr. 378. Relying on some of the miner’s vital signs, Stewart seemed stable and his pulse was normal. Harcourt couldn’t find signs of internal injuries such as bleeding or bruising, though this was made in the context of a very limited ability to partially open his shirt. Harcourt concluded that Stewart was not going to die. Tr. 382-383. Despite that expressed view, more indicative of the seriousness of the situation, Harcourt noted that they did not strap the injured Mr. Stewart down, but rather kept him on his side, and were careful to make sure he stayed still. After all, he knew that Stewart had incurred “real trauma” and they didn’t want him “moving around a lot.” Tr. 383-384. Harcourt also conceded that, at least during the process of removing the miner from the mine, he did not know what Stewart’s vital signs were. Tr. 389.

            Harcourt agreed that, in his capacity as the shift foreman, his authority included the ability to call MSHA in the event of a reportable accident. Tr. 389. However, though not knowing all of the miner’s vital signs during the process of removing him from the mine, Harcourt explained that he didn’t want to make the call to MSHA “until we had all the vital signs” to decide if it was life-threatening. Tr. 393. Though limited in his ability to look under his mud-covered clothing, he did get a sleeve and a pant leg rolled up. Given Harcourt’s admission that he was trained not to remove clothing “if you don’t know what’s wrong with [an injured person],” he agreed that during the mine removal process he didn’t know what was wrong with Stewart at that time, stating in response, “Oh, absolutely, yeah.” Tr. 396. Once at the hospital, Harcourt’s assistance ended. Tr. 379.

            According to Harcourt, he then had a conversation with the mine’s safety manager, Mr. Rice and the subject of the duty to report the event to MSHA. Harcourt told Rice that he did not believe Stewart’s injuries were life-threatening, adding, “but I wasn’t a doctor either.” Tr. 380. While Stewart was being treated, the two of them had an opportunity to speak with an attending doctor, Dr. Flannery, who, according to Harcourt’s recounting of the conversation, told them he did not think Stewart’s injuries were life-threatening. Tr. 381.

            When Harcourt was asked if, given the mechanism of injury, the trauma the miner had experienced, and the condition as he found him at the time, whether there was a reasonable potential to cause death, Harcourt responded, “That’s exactly it, I don’t know. Until I started examining him, I had no clue, and that’s why I also asked the doctor at the hospital because . . . [Harcourt did not see anything] that was life-threatening.” Tr. 399. It was Harcourt’s view that, while he knew Stewart “was hurt bad . . . [he] didn’t see any reason to believe that it was life-threatening.” Tr. 400. Yet, Harcourt agreed that a “life threatening” situation is not the same as injuries that have “a reasonable potential to cause death.” Tr. 400. In further testimony on the distinction between a “life-threatening” injury and one having “a reasonable potential to cause death,” he admitted that he was unable to get a good blood pressure because Stewart couldn’t breathe on his right side. He “guess[ed]” he took the miner’s pulse, but was not sure of that. Still, while Harcourt agreed that the terms “life-threatening” and “reasonable potential to cause death” are not synonymous, he maintained that the miner’s injuries did not present such a “reasonable potential.” Tr. 403. Harcourt expressed that there are different “styles” of shock, with some resulting in nausea and others causing death. Tr. 403. He then agreed that Stewart did show signs of shock. Tr. 404. However, it was his view that, upon being administered oxygen, Stewart’s shock symptoms were alleviated.

            The Secretary contends that Mr. Harcourt’s view that Mr. Stewart’s injuries did not present a reasonable potential to cause death should be rejected as unreasonable and not supported by his testimony. Sec. Br. at 33. Beyond his limited experience as an EMT, the Secretary notes that Harcourt was the mine’s former safety director. It notes that while Harcourt relied upon Mr. Stewart’s vital signs being okay, no one had such information until 45 to 90 minutes after the injuries occurred. Further, vital signs, which can fluctuate in any event, were not sufficient reasons by themselves to make the conclusion that a reasonable potential for death did not exist. Harcourt’s assessment failed to take into account the mechanism of injury and the obvious injuries Stewart had sustained. Sec. Br. at 34.

            It has been noted earlier that Mr. Thomas Rice is the safety manager at Signal Peak, and he also testified at the proceeding. However, he had only been in that position and in the employ of Signal Peak for 13 days before Mr. Stewart was injured. Tr. 441. He has basic first aid training and is qualified to instruct others in that, but he cannot certify anyone in first aid. Tr. 445.

            Rice’s involvement in the Stewart injuries occurred not long after the event. The mine dispatcher contacted him but, as he was not at the mine site when it happened, and upon learning that the miner was almost at the surface, he decided to wait on the side of the road and meet the ambulance on its way to the Roundup Hospital and then follow it to the hospital. Tr. 453. Although not solely his responsibility, Rice agreed that the duty to call MSHA, that is, should the reporting requirement have arisen in this instance, was delegated to him “[i]n conjunction with others.” Tr. 472. According to Rice’s testimony, his first question was to ask Mr. Harcourt if Stewart’s injuries were “possibl[ly] life threatening.” Tr. 454. He asked this because of his awareness that it beared upon the duty to call MSHA. Tr. 454. Unfortunately, Rice viewed the terms “life-threatening” and “reasonable potential to cause death” as synonymous. Using the “life-threatening” standard, Rice determined that the 15 minute clock, within which the Mine was obligated to call MSHA, never started running. Tr. 471. The Court, as explained further infra, does not share that view at all, because a “life-threatening” standard implies a much greater degree of certitude about the outcome of an injury than the “reasonable potential to cause death” language requires.

            Applying the incorrect measure for the reporting obligation, Harcourt told him he did not view Stewart’s injuries to be “life-threatening.” Tr. 454. Harcourt told Rice that Stewart’s breathing was “labored to a certain degree” but he attributed that to the miner’s broken ribs. Tr. 454-455. By Rice’s testimony, that discussion did not include the miner’s broken back. Rice also stated that none of the EMT’s believed that the miner’s injuries were “life-threatening,” though he could not recall any of their names. He also stated that he spoke with Dr. Flannery that night, and that the doctor also expressed that Stewart’s injuries were not life-threatening. Tr.456. Harcourt also asserted that the life-flight was used as a “precautionary” action.

            The Court would observe that Mr. Harcourt’s opinion on that point is simply that. He is not associated with the hospital, nor part of the life flight helicopter service, nor is he a doctor. Although Harcourt used the term “precautionary,” he stated that was “to provide him with the best care possible because the Roundup hospital did not have the facility to do the appropriate tests to keep him as comfortable as he needed to be.” Tr. 457. Again, Mr. Harcourt was well unqualified to speak to claims about the Roundup Hospital’s shortcomings.

            The Court also observes that Harcourt’s statement conflicts within itself, because one does not take “precautionary” steps unless there is uncertainty about an individual’s condition. Certainly “precautions” are not taken just for the sake of comfort. So too, the need to still take “appropriate tests” supports the uncertainty about the outcome of the miner’s injuries upon his life.  

            Rice then went to the Billings Hospital to learn from medical personnel how Stewart was doing. Tr. 457. He was advised that “they did not know. They were not sure.” Tr. 457. (italics added). Later in his testimony, Rice confirmed that there was uncertainty, as he agreed that he was unable to get a straight answer from anyone as to whether Stewart’s injuries were “life-threatening.” Tr. 474. This too, in the Court’s view was, yet again, another point in time when the “reasonable potential” to cause death was front and center before Rice and the duty to call MSHA existed anew. Yet, Rice determined that there was no duty to report the matter to MSHA. Tr. 458. Further, he disclosed that he did not discuss the matter with anyone else in management that evening. Tr. 458, 501. It was Mr. Harcourt’s evaluation that Rice was relying upon. Tr. 506. Between the 23^rd and 28^th of December, Rice continued to do “investigation” of Stewart’s condition, although he could not recall the names of anyone he spoke with at the hospital. He asserted that he was told that Mr. Stewart was “recovering [and] doing fine.” Tr. 458. Though he had learned that the miner had broken ribs, a broken scapula, broken sternum and broken back, Rice concluded there was no duty to report. Tr. 459. Rice’s estimate of the number of feet Stewart was thrown by the blast was similarly more optimistic than the estimates of others. He believed, it was in the “neighborhood” of 40 to 45 feet. Tr. 459. After speaking with people who were underground in the area of the accident, Rice and Robert Ochsner, the mine’s chief engineer, prepared a drawing to reflect his estimate of the distance Stewart was propelled. R’s Ex. 2.

            The mine has a simple and direct procedure when contacted by news reporters regarding matters occurring at Signal Peak Mine: “speak to no one.” Tr. 461. Ultimately, as previously discussed, the reporter’s inquiry led to a call to the mine from MSHA. Rice, upon being asked, told MSHA that there had been an accident and that a miner had been injured. Tr. 462. Rice confirmed that MSHA then asked follow-up questions upon learning of the initial fact of an injury. In relating the conversation, after MSHA first learned of the event through the reporter’s disclosure, Inspector Johnson agreed that it was MSHA employee Mr. Hamilton who spoke with Mr. Rice but that, as it was on a speaker phone, he also heard the conversation. Tr. 95. Mr. Rice confirmed that he answered each question, upon each question being asked of him. Rather than not being forthcoming in that telephone conversation with MSHA’s Hamilton, Rice’s offered that he was simply being very careful to give accurate information. The Court does not view it that way. Instead, it views Rice’s approach to be of a kind to the approach taken by Signal Peak from the onset of this event, by playing it very close to the vest. Rice’s responses were in keeping with the Mine’s approach to news’ inquiries of “speak[ing] to no one.”

            It is noted that the Secretary has argued that Mr. Rice’s testimony lacked credibility. The basis for this is that what Rice knew at the time of the accident and thereafter precluded any reasonable conclusion that the accident was not reportable. Further, Rice’s close to the vest approach when reached by MSHA’s Inspector Hamilton demonstrated his awareness that the accident should have been reported. In this regard, the Secretary points to the varied approach Mr. Rice took at his deposition as compared to his testimony at the hearing. At his deposition, he maintained that the delays in answering were due to the rapidity of questions being posed, whereas at the hearing he asserted that accuracy was the cause for his pauses before answers. The Court, listening and observing Mr. Rice during his testimony concludes that he took an approach of revealing as little as possible to MSHA during that initial telephone call about the matter.

            Robert Ochsner, the mine’s chief engineer, also testified for the Respondent. He was the chief engineer at the time of the December 23, 2009 initial longwall cave and he spoke to the matter of “initial caves” in longwall mining. Tr. 522. The obvious purpose of the testimony was to suggest that initial caves, such as the one which occurred at Signal Peak, were not particularly out of the ordinary. Tr. 512-514. To that end, he related that at one of the mines he worked such an initial cave blew out the overcast behind them, which was 5,000 feet away from the first longwall panel. Tr. 512. As to the event in question, Ochsner asserted that the longwall retreat was 130 feet before the initial cave. By comparison, Ochsner maintained that at another mine in his prior experience the first cave did not occur until 230 feet had been mined. Tr. 512.

            Despite the theme presented that the initial cave here was not atypical and of a smaller order than instances cited by Respondents’ witnesses, Ochsner agreed that, following the initial cave in this instance, MSHA added some safety precautions for the longwall mining. Tr. 515. Further, Ochsner agreed that the second longwall panel did not amount to ‘business as usual’ in comparison to the first panel. That is, changes were instituted. Tr. 516-517. He also admitted that he had never before had a miner thrown by a longwall fall blast, as occurred to Stewart here. Tr. 522. Paradoxically, he did not believe that the cave which occurred was “unusual.” Tr. 523. It was his view that “this roof behave[d] as predicted.” Tr. 523. He then retreated from his initial assertion that the event was rather unremarkable, allowing that it did make it “necessary to take a look at it” what occurred. Ultimately he conceded that it was necessary to revise the roof control plan in order to prevent similar occurrences in the future. Tr. 523. Ochsner apparently considered the problem to be more of one where the miner, Stewart, was in a “bad location” when the fall occurred. Tr. 525. Thus, by this unusual vantage point, the problem was with Mr. Stewart. Yet, the chief engineer conceded that the miner was in the only entry into the longwall. That is, Ochsner admitted, everyone who came into that longwall would need to travel through the same entry that Stewart was in at the time of blast. Tr. 525. The Court viewed the chief engineer’s testimony as flying in the face of Mr. Stewart’s flying experience on the day of the accident.

The post-hearing briefs

            The Court closely read the parties post-hearing submissions. The Findings of Fact, supra, and the Court’s Further Discussion dispose of many of the arguments made in those filings. The Secretary cites both Consolidation Coal Co., 11 FMSHRC 1935 (Oct. 1989) and Extra Energy, Inc., 20 FMSHRC 1, 7-8, (Jan. 1998) for the proposition that, for compliance under the standard, a mine operator has a duty to promptly, vigorously, and in good faith, investigate an accident. The Secretary also cites Cougar Coal, 25 FMSHRC at 521, for the principle that “the decision to call MSHA must be made in a matter of minutes after a serious accident.” Also referenced was this Court’s decision in Mainline Rock & Ballast, Inc. 33 FMSHRC 307, 330 for the proposition that “one does not have the discretion to remain uninformed about the circumstances of the accident and then assert that the reasonable potential for the accident to cause death was unknown.” Sec. Br. at 24. The Secretary also cites Newmont USA Ltd., 32 FMSHRC 391, 396 (ALJ Manning, April 14, 2010), for the principle that when the extent of a victim’s injuries is unknown immediate reporting is required. Sec. Br. at 24.

            In its brief the Secretary notes that a mine operator has a good faith duty to conduct a prompt and vigorous investigation into what occurred. The Secretary maintains that, manifestly, the operator failed to so act here and the Court agrees with that characterization of Signal Peak’s conduct. Further, it is the Secretary’s position that an injury must be evaluated in the context of the accident from which it resulted. The Secretary’s contention here is that the mechanism of injury matters as a critical factor in determining whether there is a reasonable potential to cause death. In this instance that means taking full account of the fact that miner Stewart was blasted some 50 to 80 feet. When coupled with the miner’s condition upon first being located after the blast, it was obvious that the standard’s reporting requirement was triggered. Sec. Br. at 27. The Secretary contends that Mr. Rice utterly failed to consider the distance Mr. Stewart was thrown in assessing his injuries. The Court certainly agrees with these perspectives as well. No sound, informed, assessment of an injured miner can be made without taking into account the mechanism of injury.

Further discussion

            Although the findings of fact fully establish the violation of 30 CFR § 50.10 and 30 CFR § 50.12, some additional discussion is in order. As to 30 CFR § 50.10, obviously there was an injury, in fact multiple injuries, to miner Stewart. The only disputed aspects pertain to whether the miner’s injuries presented “a reasonable potential to cause death” and whether the mine operator knew or should have known that the injuries presented that reasonable potential.

In understanding the phraseology employed by the standard, as a counterpoint, it is useful to appreciate what the standard does not require. The standard does not speak in terms of particular probabilities and accordingly there is no requirement that, for example, there be some sort of assessment that death is more likely to result than not for it to apply. Instead, using the common dictionary definition of “potential,” one realizes that it requires only that something be “capable of being,” or something which presents a “possibility,” albeit not yet in existence. The only qualifier is that the potential for death to occur from injury must be “reasonable,” not far-fetched.

            Thus, as one witness noted, although even a broken bone can result in death, such an injury is not, absent additional complicating factors, something which presents a reasonable potential for death. In stark contrast, here, Stewart’s injuries, independently and collectively, presented such a reasonable potential for death and there were multiple junctures when Signal Peak knew or should have known that was the case. To begin, upon finding Stewart had been propelled so far from his position just prior to the air blast and then realizing that he was unable to move on his own from the location where he was found was sufficient to have triggered the reporting requirement. That is to say, both the mechanism of the injury, an adult male having been thrown such a great distance, at least 50 feet, coupled with his reporting to those who came to rescue him that he was not okay and in fact could not move, were at that moment sufficient to satisfy the reasonable, not far-fetched, conclusion that the potential to cause death was presented.

            Though sufficient at that point to activate the reporting requirement, when Stewart was first located by his fellow miners, his condition at the moment of reaching him was a second point, triggering the reporting obligation. After all, Stewart could not locomote, had an obvious and significant protrusion on his back, which was immediately observable, even though he was clothed. Remembering that only one instance of a “reasonable potential” for death need be presented, a third reporting obligation arose in the very process of removing him from the mine. Stewart could only tolerate being in one position, and at that, only on one side. Though he tried to sit up during his emergency removal from the mine, he quickly discovered that could not be tolerated. Further, there was no mystery entertained on the part of those rescuing him; they were fully aware of his fragile condition, moving him ever so slowly out of the mine, and keeping his spine and neck aligned, for fear of aggravating his injuries. Then, once at the surface, a fourth set of circumstances, all fully known to the mine, presented yet another reporting obligation. The findings of fact, supra, fully support these conclusions. Once at the Roundup Hospital, a fifth instance triggering the reporting obligation was presented. While there was innuendo that Roundup Hospital was inadequate, it can be noted that, even if it were assumed for argument that the facility had shortcomings, had Stewart been in fine shape, the need for immediate transfer would not have presented itself. Instead the evaluating physician determined that a “life flight” was in order. While the Billings area does offer scenic helicopter trips, Stewart’s trip was decidedly not of that nature.

            Unhappy with the “reasonable potential” words employed by the standard, the Respondent would prefer to substitute “life threatening” in its place. R’s Reply at 3. And though it notes that MSHA used that expression in the final rule, nowhere did the agency express or suggest that the terms were interchangeable. Rather, it referred to the Review Commission’s expression in Cougar Coal, 25 FMSHRC 513, at 521 (September 5, 2003, that a “‘reasonable potential to cause death cannot be made upon the basis of clinical or hypertechnical opinions as to a miner's chance of survival.’ The judgment is based on what a reasonable person would discern under the circumstances, particularly when ‘[t]he decision to call MSHA must be made in a matter of minutes after a serious accident.’” 71 Fed. Reg. at 71434. (Dec. 8, 2006) (emphasis added).

            It is also notable that the Respondent concedes that Mr. Stewart’s injuries “were severe but not life threatening.” R’s Reply at 5. Having conceded that the injuries were “severe,” the inquiry then should have been whether those “severe” injuries presented a “reasonable potential” to cause death. Applying the fact specific analysis expressed by the Commission in Cougar Coal, the Court, has made findings of fact on that issue, and concluded that such “reasonable potential” was clearly present.

The later-obtained medical records are a non-issue.

            The Court rejects the Respondent’s implicit argument that somehow it was disadvantaged in not being invited by MSHA to join the agency when it visited St. Vincent’s hospital. First, it was MSHA that was disadvantaged, as the mine never reported anything about the incident, and the Agency only learned about the matter after a reporter’s call of inquiry about the event. Further, while Respondent’s Counsel was unhappy that MSHA had the authority to see the medical records, Respondent did obtain them later, through discovery. Besides, the measure of the duty to report the incident first arose when the accident occurred. In fact, the government Counsel asserted that medical records are not determinative or necessary for its case to be upheld, and the Court agrees. Counsel for the government, noting the 15 minute notification requirement, stated that the Respondent had a duty to do a “prompt and reasonable” investigation of the events that took place and that, the duty arose, once the mine knew what had taken place underground, and how serious the accident was, to make the report. Tr. 132. This duty came into being apart from any Billings Hospital records which later came into Signal Peak’s possession. Tr. 132.

            The point is that the company cannot describe itself as being completely in the dark as to the miner’s condition and therefor utterly unable to determine if the reporting obligation arose shortly after the event. That other information, developed after the miner was transported via ambulance to Roundup or at other points in time following that, is not determinative of the Respondent’s obligations. Thus, Respondent’s argument that it had no access to those records and therefor could not make an assessment of them to inform them about their reporting obligation is another distraction from the issues here. Accordingly, the Respondent’s claim that, because it didn’t have access to those records until much later, its compliance with the standard was hindered, is rejected.

            In short, the Court agrees that the company had to rely on what it had, at and shortly after, the time of the accident, not the records that came into their possession much later. Respondent’s Counsel asserts that the company had to rely upon medical information from the EMTs and the doctors. Tr. 102. The problem with this claim is that it misstates all the information which the company had at hand and which they then should have applied, using the duty imposed by the standard, to the situation before them. As the Court pointed out to Respondent’s Counsel, the company was aware of the event almost immediately after it occurred, and one could take a “snapshot” at that moment in time, putting aside any medical records that were later developed. Tr. 103. As noted, there were several later points in time in which additional “snapshots” were presented, with each of them creating an independent basis to trigger the reporting obligation. ( Tr.129-131.)

Special Findings: “significant and substantial” determinations

            In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health Review Commission (“Commission”) explained: “In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.” Subsequently, in U.S. Steel Mining Co., 7 FMSHRC 1125 (Aug. 1985), it held: “We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” [ …] We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial.” Id. at 1129 (emphasis in original) (citations omitted). Thereafter, the Commission noted that the “question of whether a particular violation is significant and substantial must be based on the particular facts surrounding the violation.” See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 2012 WL 1564583

            Here, Inspector Johnson marked his citation, Number 8463717, for the section 50.10 “Immediate notification” violation as “significant and substantial.” His justification was that the accident had occurred and that the condition contributed to the hazard, in circumstances where there was a foreseeable potential that an injury or illness would occur if the problem was not corrected. The discrete hazard was the exposure to the miners. Although this was the first longwall panel for this mine, the Inspector viewed that similar conditions would have been presented when the next longwall panel was initiated. This was the case because the mine did not, at that time, change its roof control plan to address what had happened. Tr. 79. Changes did ensue, but these occurred only after MSHA intervened. Accordingly, the mine operator had not addressed how to prevent a recurrence. Instead, Signal Peak Energy simply fixed the ventilation damage and resumed mining three days later. As noted, it was not until six days after the event that MSHA even knew of it. Tr. 79. Thus, the mine’s lack of action in the wake of the event factored into the Inspector’s view that the problem could be repeated. Tr. 80. As with the first occurrence, impacted by such a subsequent massive fall event would be any miner within the affected ventilation controls and all those miners working along the longwall, as they would be, just like the two injured miners here, exposed to the air blast. Beyond his prognostication about a future event and its “S & S” nature, the Inspector stated that he viewed the event itself as “S & S,” because there had been some prior roof falls, which falls should have alerted the mine about the potential for a “significant disruption in the ventilation system.” Tr. 82. Noting that the gravity/ illness category had been marked as “occurred,” a conclusion stemming from the injuries received by Mr. Stewart, the Inspector also marked it “permanently disabling.” Tr. 83-84. Mr. Stewart was fortunate that he mended without a permanent disability.

            Accordingly, the Inspector’s determinations regarding gravity were based on his considering that Signal Peak’s continuing mining operations would reflect business as usual, as no steps to prevent a reoccurrence had been taken. Tr. 86. Referred to GX 24, and the notes of MSHA’s David Hamilton, relating to the accident, Johnson remarked that they included references to the significant number of stoppings that had been blowing out. It was with the third such event, the event in which Mr. Stewart was injured, that the some 78 stoppings had been blown out. As noted, Johnson believed that these prior events should have heightened the mine’s awareness that there was a problem, with so many stoppings being damaged. Tr. 195.

            As for the failure to report the accident making the hazard more likely to occur, the Inspector voiced that such inaction put other miners at risk. For example, it was not known if more roof, above the area that fell, could still come down. Thus, in spite of what transpired, Signal Peak continued to conduct mining even though the air blast event had not been sufficiently investigated. Tr. 84. This concern prompted Inspector Johnson to issue his k Order. He reasonably concluded that it was highly likely that, should another such air blast occur, the matter would also be of a serious nature. Tr. 85. After all, it was not as if the mine had made an inquiry about the event. The Inspector’s concern was borne out subsequently, as MSHA’s roof control specialists came to the mine and made recommendations to ensure that future mining would be safer, in the sense that there would be no recurrence of an air blast of that degree. Tr. 85. Similarly, the Inspector viewed that, despite Signal Peak having learned that the roof fall was far beyond the controls it had and knowing that it posed a high degree of danger, the mine showed little effort to correct the problem. Tr. 81.

            In sum, three of the S & S elements are self-evident. Only the measure of danger to safety warrants a few more words. That element was twofold: the negative impact upon MSHA’s ability to carry out its statutory and regulatory responsibilities; and the inherent prospective danger to the safety of miners by not providing immediate notification to MSHA of the reportable accident. Accordingly, the Court finds, both in terms of what actually happened and in terms of future risks, and therefore on two independent grounds, that the S & S nature of this violation was clearly established.

            As to the issue of negligence, and the Inspector’s initial designation that it was an “unwarrantable failure” to comply with the requirement, he explained that the designation was later removed. When he initially listed it as such, it was based on the mine’s failure to report the incident within 15 minutes but also because they then advanced the mining without informing MSHA of the life-threatening conditions. Tr. 88.

            The Inspector summed up his evaluation, concluding that any reasonable person should have known, and recognized, that the accident was immediately reportable under the provision, given the blast of air, the mechanism of the injury, the reasonable potential to cause death, and the roof that was still hanging up. All those aspects would have led one to realize that the accident was serious and promptly reportable. Tr. 88. As explained, the Court wholeheartedly agrees with this perspective.

            In her Post Hearing Brief, the Secretary continues to assert that the violation of 30 C.F.R. § 50.10(b) was significant and substantial but with a focus upon the future hazards. In support of that position, it urges that the same result would be likely to occur when the mine moved to the next and subsequent longwall panels. Sec. Br. at 29-30. As noted several times, that result is likely because Respondent took no steps to avert a repeat of the great initial fall. Instead, Signal Peak simply repaired the damaged ventilation and then resumed mining. Lessons were not learned. Thus, the Secretary argues that the Respondent’s failures “made it reasonably likely that an injury of a reasonably serious nature would occur during continued mining operations on [its] longwall panel[s]” and that the failure to report the accident within 15 minutes placed other miners at risk of serious injuries, as its longwall mining resumed. Sec. Br. at 30. The Court agrees and so finds.

            Signal Peak contends that the violation was not “significant and substantial” and in that regard makes a two-pronged challenge to the issue. As discussed earlier, it first contends that the violation simply can’t be “S & S” because it believes the provision is merely a regulation and as such no special findings are permitted. The Court having found that the provisions are mandatory standards, has rejected the claim. The second challenge to the S & S determination from the Respondent is simply that, factually, it does not meet the requirements set forth in National Gypsum and Mathies. The Court finds otherwise. Signal Peak does acknowledge that the determination is based upon the particular facts involved. R’s Br. at 30. As this decision makes clear, the Court’s determination that the violation is S & S is based upon the particular facts. The fact that a particular safety or health standard may not fit perfectly within the one-size-fits-all framework of National Gypsum and Mathies does not mean that the statute’s provision for the significant and substantial element is not met.

            Respondent also contends that “no hazard was created by the failure to report,” but this ignores that, had MSHA not learned of the event through the news media, Signal Peak would have proceeded to the next longwall panel with no changes in its roof control plan. Accordingly, there certainly was a hazard created. Further, the “hazard created” does not look exclusively to the future, particularly when the event has occurred.

Reckless disregard

            The Secretary also asserts that Respondent’s 30 C.F.R. § 50.10(b) violation constituted reckless disregard. She maintains that the Respondent’s failure exhibited the absence of the slightest degree of care and that there was no excuse for its failure. Sec. Br. at 31. That it knew it had a duty to report the accident is evident from the guarded approach Mr. Rice took when MSHA called about the matter. The Court has determined that the Secretary’s characterization of Mr. Rice’s approach in speaking with MSHA is accurate. Reckless disregard was also presented in the sense that, by taking no action in the wake of the massive initial fall, Respondent placed other miners at risk when a new longwall panel was started. Id.

            The Respondent asserts that there was no reckless disregard because the mine’s “determination that the incident was not immediately reportable was a reasonable one under the circumstances.” R’s Br. at 20. The Court has rejected this claim. Not only was the determination not to report unreasonable, Signal Peak missed several discrete and independent opportunities at which it was clear that the reporting obligation, stemming from Mr. Stewart’s condition from his injuries, existed. See the findings of fact, supra. Accordingly, the Court finds that, in both aspects, the Respondent acted with reckless disregard.

The Violation of 30 CFR § 50.12 for failure to preserve the accident scene.

            The Secretary asserts that “if the Court finds a violation of 30 C.F.R. § 50.10, [as per] Citation [Number] 8463717 it will necessarily find a violation of 30 C.F.R. § 50.12 in Citation [Number] 8463718.” Sec. Br. at 20. The Court agrees and notes that the facts are uncontested regarding the latter citation. Signal Peak would be excused from liability on the failure to preserve the accident scene only if its challenge to the obligation to report violation were dismissed.

            As noted earlier, 30 CFR § 50.12, entitled “Preservation of evidence,” provides that “[u]nless granted permission by a MSHA District Manager, no operator may alter an accident site or an accident related area until completion of all investigations pertaining to the accident except to the extent necessary to rescue or recover an individual, prevent or eliminate an imminent danger, or prevent destruction of mining equipment.”

            Referring to the related citation, pertaining to the alleged violation of 30 C.F.R. 50.12, requiring that the accident scene be protected from alteration, the Inspector noted that the mine did nothing to comply with that provision and, again, Respondent presents no claim contending otherwise. Because they had instead opted to mine past the accident scene, it was more difficult for MSHA to assess what the conditions were at the location at the time of the accident. As opposed to the Inspector’s gravity designations for the failure to report violation, the accident alteration violation was marked as “unlikely” because Johnson did not have an accident scene to investigate. Tr. 91. Thus, while he felt the standard had been clearly violated, he believed that he had no basis to conclude whether it was “S & S,” because there was no scene to assess, the mine having elected to advance its mining beyond the accident scene. Tr. 92. While MSHA felt constrained, incorrectly in the Court’s estimation, believing that it was unable to assert that the violation was S & S, the Court believes that, from a civil penalty perspective, the mine should not be rewarded by its safety-hindering actions.

            In that light, the Secretary at least views the Respondent’s failure to preserve the accident scene as constituting a blatant disregard of the standard. Signal Peak did nothing to comply with the duty associated with the standard. Instead, it simply repaired the damaged ventilation before resuming mining three days after the accident and, notably, did so without any notification to MSHA before resuming its longwall mining. By failing to notify MSHA, there was no accident site for the Agency to assess and obviously that hindered the Agency’s ability to evaluate whether the accident could be part of a trend or problem which could present an ongoing or future hazard to miners. The Secretary also asserts that the excuse presented, that MSHA’s involvement would have prevented the repair of ventilation and stoppings, which would have created a greater hazard, is “unbelievable,” and the Court would agree that it took chutzpah for the Respondent to make that claim. Sec. Br. at 35. Further, the Secretary notes that, under the Mine Act, it is for the Secretary, not the mine operator, to evaluate accident scenes in order to protect the safety and health of miners and accordingly it is not appropriate for any mine to decide to preempt MSHA’s role.

The Secretary’s Additional, Independent, Basis for Liability; 30 C.F.R. § 50.10(d).

            The Secretary maintains that, in addition to liability under 50.10(b), liability also exists independently under 30 C.F.R. §§ 50.10(d) and 50.2(h)(8). Recall that under 50.10 there is a duty for immediate notification once a mine operator knows or should know that an accident has occurred involving events such as a death and, as discussed at length above, an injury which has a reasonable potential to cause death. However, the duty to make an immediate notification under § 50.10 also extends to “Any other accident.” 30 C.F.R. § 50.10(d). When one then turns to the definitions section, found at 30 C.F.R. § 50.2, the term “Accident” includes “. . . an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage.” 30 C.F.R. § 50.2(h)(8).

            The Respondent’s defense to this additional theory of liability is that as the fall occurred in the gob and the gob is not an active working, the section does not apply. To this, the Secretary’s view is that the ordinary definition of the terms “planned” and “impair” demonstrate that the section applies because the air blast was clearly not planned and the mine’s ventilation was significantly impaired by that blast. Sec. Br. at 36. Certainly, in terms of “planning,” there can be no serious argument that the great fall and attendant blast that occurred here was within the mine’s expectations, though some witnesses for the Respondent suggested that was the case.

            As to the more fundamental aspect of the Respondent’s defense, that the unplanned roof fall was not in active workings, the Secretary answers that the blast “materially affected the active workings by impairing ventilation of the entire mine and the violent blast of air that followed affected the health and safety of the miners working on the longwall,” noting that “[d]ebris from the roof blasted into active workings as well.” Sec. Br. at 36-37. Further, as the ventilation was impaired from the event and given the importance of ventilation, “it would never be intentionally compromised for purposes of a ‘planned’ roof fall.” Sec. Br. at 37, citing Tr. 328. Accurately, the Secretary observes that “the unplanned roof fall affected the active workings of the mine as well as any roof fall would if it occurred in a main travelway.” It notes that as the unplanned fall took out “at least 78 stoppings over 14,000 feet [and thereby] affecting the entire mine’s ventilation system, and throwing a miner in the working section approximately 50 to 80 feet, the roof fall affected active workings and therefore should have been reported pursuant to 50.2(h)(8).” Sec. Br. at 37. Since a purpose behind reportable accidents is to inform MSHA about such events so that it can investigate and ascertain their causes in order to prevent recurrences, the failure to report the unplanned roof fall prevented MSHA from performing those roles.

Findings of Fact relating to the Unplanned Roof Fall

            Inspector Johnson was of the view that the accident was also immediately reportable on the basis of the definition of an “accident,” per section 50.2(h)(8) which, as noted, refers to an unplanned roof fall in active workings that impairs ventilation. Tr. 77. Certainly part of this definition was met, as the event could not be described as other than an “unplanned” roof fall. Instead of a planned condition, there was instead a “violent” one, beyond the mine’s expectations “for controlling the particular roof fall behind the shields.” The event was “way beyond the controls [the mine] had in place and it affected the entire mine’s ventilation system and the violent expansion of air affected the health and safety of [the] miners.” Tr. 77. (emphasis added). Addressing the provision’s reference to “active workings,” the Inspector reasoned that the roof fall was not in control and that is why it affected the ventilation of the miners working the area. Tr. 77. While apparently no rock from the gob flew into the active workings, a lot of debris did, as the miners were covered in such material. Tr. 180. Thus, Inspector Johnson concluded that the roof fall did affect the working area of the mine. Tr. 77-78.                    

            Mr. Pete Del Duca, who is a licensed Professional Engineer in Colorado, is a supervisory mining engineer with MSHA. Del Duca’s investigative experience in dealing with coal and rock bursts and roof falls has been noteworthy and he has a bachelor of science degree from the Colorado School of Mines. Tr. 259-261. With MSHA since 2004, from 2006 through 2010, he worked in the roof control division where he reviewed roof control plans and investigated roof control related accidents. More precisely, his work pertained to ground control issues. Accordingly, he investigated such failures with the goal of determining if the ground control plans are adequate for the conditions, to ensure “that everything is being done to safely control the ground to protect miners.” Tr. 258.

            Mr. Del Duca’s experience with Signal Peak precedes the time when they began their longwall mining. Tr. 261. His involvement with this matter began on December 29^th. He was detailed there to evaluate the serious roof failure at the mine and to evaluate the “potential hazard [ ] for future and for current mining [at the mine].” Tr. 267. Engineer Del Duca’s notes, from his visit to the mine, are reflected in GX 14. He was accompanied by another roof control specialist during the visit, Venkatrao Thummala. Tr. 268. Referring to a map within GX 14, Del Duca traced his tour of the mine area in issue. Among other observations he noted that “[o]n the headgate side, the cave was hanging back about 45 to 50 feet behind the shields, meaning the roof remained up. Tr. 275. He noted that, before the accident, the first cave had not yet occurred. There was a “massive volume” 1250 feet wide face, 10 to 12 feet high and 220 feet long. While some blast out is to be expected from the initial cave, what occurred here was of an entirely different order. As Mr. Del Duca expressed it, “[t]o get an air blast of this magnitude is a very real problem and a real hazard.” Tr. 280. He concluded that the mine’s massive sandstone roof was the source of the roof hanging up. He considered that to be a very real hazard, requiring changes to the roof control plan. Tr. 283.

            The Court inquired of Mr. Del Duca whether the roof conditions he was examining came within the definition of an “accident,” per section 50.2 (h). His response was that though the gob itself is not an active area of the mine, “it materially affected the active area by knocking out ventilation, impaired ventilation, and it fell in an uncontrolled, unplanned manner, which is not how it was designed to fail.” Tr. 285. Thus, it was Mr. Del Duca’s position that what occurred here fell within the ambit of section 50.2(h)(8). Tr. 286.

            Engineer Del Duca, noting that the Agency had concerns a subsequent fall on the order that occurred here, informed that there were changes made to the roof control plan. Tr. 298. These changes, brought about through MSHA’s intercession, were successful in preventing another such massive fall. Tr. 299. There was no dispute that the roof problem originated from a massive sandstone hang-up. Significantly, as far as Del Duca knew, the mine itself did nothing in the wake of the accident to inquire into the problem. Thus there was no attempt to investigate how to avoid having a repetition of the massive fall which injured two miners. Tr. 300. Signal Peak merely cleaned up the damaged ventilation and then resumed their longwall mining. Tr. 300. The risk of a repeat massive fall, had no changes been instituted, would be when the mine started panel two if its longwall. Tr. 303. Politely calling it “disappointing,” Mr. Del Duca noted that he was unaware of anything the operator did to address the event: “You know, I’m unaware of anything that they did. My opinion was that they just continued mining and that they didn’t do anything to try to ensure that there wouldn’t be any more, to really take a good, hard look at all. If I recall right, there wasn’t anything documenting any increased precautions, anybody looking inby[] on every shift to ensure that it was following close, minimizing persons in the headgate entry so that way, no one would - - so it would only be one person in at a time or anything like that. To the best of my knowledge, there had been nothing at that point to mitigate the potential hazard there.” Tr. 303-304.

            MSHA issued its (k) Order which required precautions the mine would have to follow before resuming mining. Tr. 304. Ex. 15. The mine then developed their plans to mitigate the hazard. The result was that, prior to the start of the second longwall panel, the plan was revised to address these issues. Tr. 312. From the government’s perspective, Mr. Del Duca’s testimony is probative in two respects. First to show that there was an unplanned roof fall that affected active workings and second, to show the gravity and seriousness of the fall that occurred. Tr. 317. GX 25, a document created for the mine by an outside contractor, Malecki Technologies, was admitted. Tr. 321. Its use was limited to show, as corroboration, that Mr. Del Duca had discussions with the mine about the subject of what was needed to “take place to mitigate the same hazard from existing for the second longwall panel and panels thereafter given the roof conditions and given the outcome of his investigation and findings.” Tr. 320. It was also offered to show that the fall was not a run of the mill type of event and that measures were needed to prevent a similar occurrence. Tr. 321. Malecki was hired to “determine the best course of action to prevent these air blasts from continuing to occur.” Tr. 322. Thus the Malecki report came about as a result of MSHA’s involvement with the December 23, 2009 roof fall event, which was the originating cause of this proceeding. Tr. 322.

            Engineer Del Duca also made it clear that the December 23^rd event was “[a]bsolutely not” a run of the mill initial cave-in, as had been suggested by some who testified for the Respondent Mine. Tr. 323. Although an initial cave may blow out a stopping or two, that is not comparable to damaging 76 stoppings, nor is blowing a person down an entry considered to be a usual event. Tr. 324. As Mr. Del Duca put it: “[I]t was always a horribly violent air blast.” Tr. 324.

            As to the number of stoppings affected by the air blast from the fall, there really was not much dispute. Wayne Johnson provided that number to Del Duca and no one objected or disagreed with that figure. Tr. 326. Having some 78 stoppings blown out absolutely impairs a mine’s ventilation. Tr. 326. The purpose of such stoppings is to create resistance in order to ensure that air ventilates the entire gob. All gobs have to be either ventilated or be completely bleeder-less. Tr. 326. In this instance, it was a ventilated gob at that time. The blast made it so that the belt air course was no longer separated from the intake course. Tr. 327. All air courses must be maintained separate, as the hazards when air courses are not kept separate are well known. Tr. 327.

            Mr. Del Duca expressed that a roof fall comes within the 50.10(d) provision on the basis that, while the fall occurred in the gob area, material from it was expelled out and because the fall knocked out ventilations that were in the active workings. Thus, the fall very much affected the active workings of the mine. Thus, its effect was indistinguishable from a fall occurring in a main travelway. Tr. 329.  

            As alluded to earlier, the Respondent simply maintains that as the roof fall was not in active workings but rather occurred in the gob and as the gob is not a place where miners normally are required to work or travel, there was no duty to report the fall. Respondent argues that the language of the provision, section 50.10, controls and, as such a roof fall which does not occur in active workings, even though it has significant effects upon the active workings, be that impairing mine ventilation or injuring miners, is still outside the provision. R’s Br. at 19. Thus, for the Respondent the inquiry over the reach of the standard abruptly ends once it is acknowledged that the roof fall occurred in the gob and any effects on the mine beyond the gob are simply to be ignored. Because that perspective runs against the precepts of construing remedial legislation and its progeny, safety and health standards, the Court rejects this defense.

            As noted at the outset, MSHA maintains that the mine’s actions, or more accurately, its lack thereof, also violated the immediate reporting obligations under 30 C.F.R. § 50.10(d), requiring notification “at once and without delay,” for “[a]ny other accident,” with the term “accident” including “[a]n unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage.” 30 C.F.R. § 50.2(h)(8).

            As the Tenth Circuit has noted, the Commission’s interpretation of standards is to be consistent with the safety promoting purposes of the Mine Act. This is in keeping with the concept that the Mine Act should be liberally construed to accomplish its remedial purposes. Walker Stone Co., Inc. v. Secretary of Labor, 156 F.3d 1076, (10^th Cir. 1998), citing Joy Techs., Inc. v. Secretary of Labor, 99 F.3d 991, 996-97 (10th Cir.1996) (interpreting regulation to further safety promoting purposes of), cert. denied, 520 U.S. 1209, 117 S. Ct. 1691, 137 L.Ed.2d 818 (1997) and RNS Servs., Inc. v. Secretary of Labor, 115 F.3d 182, 187 (3d Cir.1997). In RNS Servs the Third Circuit noted it was mindful that "[t]he canons of statutory construction*187 teach us to construe such remedial legislation broadly, so as to effectuate its purposes," citing Stroh, 810 F.2d at 63.

            Accordingly, for the reasons articulated above in this decision, the Court agrees that this additional source of liability was established.

PENALTY ASSESSMENT

            The Mine Act requires that, in assessing civil monetary penalties, the Commission [ALJ] shall consider six statutory penalty criteria: [1] the operator's 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).       
                 

            In Secretary v. Ember Contracting, 33 FMSHRC 2742, 2011 WL 5826782 November 4, 2011 (Judge Paez), it was noted “[t]he determination of the proper civil penalty is committed to the Administrative Law Judge's discretion, which is bounded by the statutory criteria of section 110(i) of the Mine Act as well as the deterrent purpose of the Mine Act's penalty assessment scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983) (citation omitted), aff'd sub nom. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147 (7th Cir. 1984).

            Speaking to the subject of effective civil penalties, the Commission, looking to the legislative history of the Act, observed in Secretary of Labor v Double Bonus Coal Co. et al, 31 FMSHRC 886, 2009 WL 2915303, (Aug. 2009), that “Senator Williams, the sponsor of the Mine Act, emphasized that the civil penalty was ‘the mechanism for encouraging operator compliance with safety and health standards.’” and that “[i]n reviewing the relevant legislative history, the D.C. Circuit concluded that “Congress was intent on assuring that the civil penalties provide an effective deterrent against all offenders, and particularly against offenders with records of past violations.” Id. at *893, citing S. Rep. No. 95-181, at 41, 43 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 629, 631 (1978) Legis. Hist. at 85, and Coal Employment Project v. Dole, 889 F.2d 1127, 1133 (D.C. Cir. 1989). The same legislative history stated that “[t]o be successful in the objective of inducing effective and meaningful compliance, “a penalty should be of an amount which is sufficient to make it more economical for an operator to comply with the Act's requirements than it is to pay the penalties assessed and continue to operate while not in compliance.” S.Rep. No. 181, 95th Cong., 1st Sess. 40–41 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2d Sess., Legistative History of the Federal Mine Safety and Health Act of 1977, at 628–29 (1978). The Secretary seeks a minimum penalty of $51,400.00 for the two violations. By any measure Signal Peak is a large mine, presently employing about 240 people and with a goal of shipping a million tons of coal per year. Tr. 30. Sec. Br. at 7. In terms of the mine’s history of violations, the Court has taken into account GX 21, the certified Assessed Violations and History Report. There is no evidence that the penalty imposed would have an effect on the mine’s ability to continue in business. Nor was there any good faith on the Respondent’s part, in the sense that term is employed under 30 U.S.C. 820(i), because there could be no rapid compliance in either instance after notification of the violation.

            In addition to the findings already discussed, the Court makes the following additional comments in support of its penalty determinations. The Court considers both violations to be egregious failures on Signal Peak’s part. The decision not to call MSHA, in violation of the immediate notification requirement of 30 C.F.R. § 50.10, was in no way a borderline call for which reasonable minds could differ. Signal Peak’s negligence in both these violations matters. The penalties assessed are fully appropriate upon consideration of the gravity and negligence involved.

            As noted in numerous cases, including Secretary v. Newtown Energy, Inc., 2012 WL 1564583, April 19, 2012, (“Newtown Energy”)(Judge Gill), “[t]he gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The seriousness of a violation can be examined by looking at the importance of the standard which was violated and the operator's conduct with respect to that standard in the context of the Mine Act's purpose of limiting violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). Judge Gill went on in Newtown Energy to note that “the gravity of a violation and its S&S nature are not the same. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). The gravity analysis can include the likelihood of an injury, but should focus more on the potential severity of an injury, and the number of miners potentially injured. The analysis should not equate gravity, which is an element that must be assessed in every citation or order, with “significant and substantial,” which is only relevant in the context of enhanced enforcement under Section 104(d),” citing Quinland Coals Inc., 9 FMSHRC 1614, 1622 n.1 (Sept. 1987) Id. at *6.

            Here, in examining the effect of the hazard if it occurs, the first observation is that, for both citations, the hazard did occur. MSHA cannot perform its role if not notified and, by keeping the agency in the dark, miners potentially may suffer. For the preservation of evidence violation, the mine literally covered up the accident by continuing its longwall mining. Accordingly, the gravity for both violations was serious. Finally, regarding the violation of 30 CFR § 50.12, the failure of Signal Peak to preserve the evidence, that can be viewed as more serious because it eliminated MSHA’s ability to assess the accident site. Accordingly the gravity and negligence attendant with that failure warrant the five-fold increase from the modest penalty proposed by MSHA.

Civil Penalty Assessment

            Based on the findings above, the Court assesses a civil penalty in the total amount of $ 83,750.00.

ORDER

            Within 40 days of the date of this decision, Signal Peak Energy LLC, Respondent, IS ORDERED to pay a total civil penalty of $ 83,750.00 for its violations of 30 C.F.R. 50.10 and 30 CFR § 50.12, as set forth in Citation numbers 8463717 and 8463718, respectively.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Karen E. Wilcynski, Esq., Trial Attorney, Office of the Solicitor, U.S. Department of Labor,

1999 Broadway, Suite 1600, Denver, CO 80202-5710.

Ralph Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty

Avenue, Pittsburgh, PA 15222-1000.