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

 

 

The Alleged Violation

 

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

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

 

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

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

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

reasonable potential to cause death when emergency personnel was alerted

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

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

hour and fifty seven minutes later.

 

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

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

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

            to other miners?

 

            A. No.

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

(Tr. 66-68).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

his (Tr. 103-106).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

The Secretary's Arguments

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

The Respondent's Arguments

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

MSHA, enforcement discretion would take those circumstances into

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

decision between rendering life-saving assistance and calling MSHA

would be penalized for providing that assistance.

 

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

 

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

 

 

FINDINGS AND CONCLUSIONS

 

Fact of Violation

 

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

 

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