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Consol Pennsylvania Coal Co., LLC v. Federal Mine Safety and Health Review Commission

United States Court of Appeals, Third Circuit

October 22, 2019


          Argued June 25, 2019

          On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission (FCMS-1: PENN 2014-816)

          James P. McHugh, Christopher D. Pence Hardy Pence, Counsel for Petitioner.

          Ali A. Beydoun Cheryl C. Blair-Kijewski [ARGUED] April E. Nelson Kate S. O'Scannlain United States Department of Labor Office of the Solicitor, John T. Sullivan Federal Mine Safety and Health Review Commission, Counsel for Respondents.

          Before: JORDAN, BIBAS, and NYGAARD, Circuit Judges.



         As with many other things, when it comes to mining, it is far better to be safe than sorry. To monitor and encourage safety, Congress and the Mine Safety and Health Administration ("MSHA") require that mine operators notify MSHA within 15 minutes after the occurrence of an injury having "a reasonable potential to cause death."

         This case involves that requirement, as embodied in both a statute and a regulation: 30 U.S.C. § 813(j) and 30 C.F.R. § 50.10(b). Robert Stern, a miner for Consol Pennsylvania Coal Company, LLC ("Consol"), suffered a crushing injury between two multi-ton pieces of mining equipment and quickly exhibited, among other worrying symptoms, signs of internal bleeding. Without delay, Consol got Stern out of the mine and coordinated getting him to a hospital, but it failed to notify MSHA for about two hours. Consequently, MSHA issued a citation to Consol for violating 30 C.F.R. § 50.10(b). The Federal Mine Safety and Health Review Commission (the "Commission") upheld the citation over Consol's protestations.

         Consol now petitions for review, challenging several aspects of the Commission's decision. We conclude that the Commission did not err, and we will therefore deny the petition.

         I. Background

         A. Statutory and Regulatory Background

         The Federal Mine Safety and Health Act of 1977 (the "Mine Act" or the "Act"), 30 U.S.C. § 801 et seq., was enacted "for the purpose of improving the working conditions of miners." Cumberland Coal Res., LP v. Fed. Mine Safety & Health Review Comm'n, 717 F.3d 1020, 1021 (D.C. Cir. 2013). It created the agency that is now called MSHA and "gave [it] broad authority to ensure the safety of mines[.]" Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631, 635 (7th Cir. 2013). MSHA inspectors act on behalf of the Secretary of Labor and are empowered to issue citations for violations of the Mine Act or regulations promulgated under it. Cumberland Coal, 717 F.3d at 1021. "A mine operator can contest a citation before the … Commission …, [which is] an adjudicative agency independent of the Department of Labor." Sec'y of Labor v. Spartan Mining Co., 415 F.3d 82, 83 (D.C. Cir. 2005).

         The provision of the Mine Act primarily at issue here is 30 U.S.C. § 813(j). It says that, "[i]n the event of any accident occurring in any coal or other mine, the operator shall notify [MSHA[1] … and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof." Id. When "the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred[, ]" the notification must "be provided by the operator within 15 minutes[.]" Id. The 15-minute requirement was added by the Mine Improvement and New Emergency Response Act of 2006 (the "MINER Act"), Pub. L. No. 109-236, § 5(a), 120 Stat. 493, 498 (2006). It codified a similar provision that had previously appeared in an MSHA emergency regulation. S. Rep. No. 109-365, at 13 (2006).

         Shortly after the MINER Act became law, MSHA promulgated a final regulatory version of the same notification requirement, codified at 30 C.F.R. § 50.10.[2] Emergency Mine Evacuation, 71 Fed. Reg. 71, 430, 71, 430-31, 71, 434-36 (Dec. 8, 2006). That regulation says that an "operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving: … [a]n injury of an individual at the mine which has a reasonable potential to cause death[.]" 30 C.F.R. § 50.10(b).

         B. Factual Background

         On August 12, 2013, at about 3:15 a.m., Stern was crushed between two multi-ton pieces of mining equipment. The mine section supervisor, John McDonald, was notified of the accident within minutes, and he got to the scene three or four minutes later. When he arrived, Stern told him that "he got pinched," that "he was in a lot of pain[, ]" that he could not move his legs, and that he could feel "the pinch" on one of his legs. (App. at 242, 249.) Stern also screamed in pain when his legs were moved.

         McDonald asked the mine "bunker to call 9-1-1 to get an ambulance running." (App. at 242.) He also radioed for Shannon Smith, a "fire boss mine examiner" and EMT, [3] to come to the scene, saying there was "a man crushed[.]" (App. at 209, 211.) Additionally, McDonald and Smith yelled for the "haulage" to be cleared out of the way - as is common in an emergency - to allow Consol to quickly get Stern out of the mine.[4] (App. at 237, 250.)

         Smith reached the scene eight to ten minutes after receiving the call. He noticed that Stern's knee had an unnatural bend to it, indicating it was broken, and that Stern could not feel or move that leg. Stern said he was in pain. Smith placed Stern in a neck brace, in case Stern had a spinal injury.

         Not all of Stern's symptoms gave cause for concern. For example, Smith told the shift foreman that Stern "was calm, collected, good, no high pulse beat or anything like that." (App. at 267.) And Stern never lost consciousness or the ability to respond to questions coherently, nor did he have any problem with his pulse or breathing.

         Nevertheless, Smith viewed Stern's injury as "[p]retty bad" and "traumatic," and he later described it as "[t]he worst of the accidents" he had treated - which otherwise mainly consisted of "[b]umps and bruises[.]" (App. at 220-21.) And, in fact, some of Stern's symptoms were alarming. Perhaps most significantly, McDonald and Smith noticed that Stern's stomach was becoming hard and distended. They both recognized that as a sign of internal bleeding.[5] Stern's own fears were plain when he told Smith "[s]omething [along] the lines that if something did happen to [him], please tell [his] wife and family that [he] love[s] them[.]" (App. at 220.)

         McDonald and Smith called the bunker to request "Life Flight," a helicopter medevac service. Smith "wanted to err on the side of caution" because he thought internal bleeding was possible, which he acknowledged can lead to death, and he feared "the possibility of - the uncontrollable." (App. at 226, 236.) McDonald likewise explained that when they felt Stern's stomach, which was swelling, they got nervous and called Life Flight as a precaution; he said that stomach swelling can mean internal bleeding, which he testified has a reasonable potential to cause death. Smith had never called Life Flight or heard of anyone doing so since he started working at the mine in 2009 - years before Stern's 2013 injury - and McDonald had never called Life Flight, although he knew of times it had been called. Despite all that, McDonald testified that he did not believe there was a reasonable potential that Stern could die.

         An attendant in the bunker called the mine safety supervisor, Michael Tennant, at home at about 3:30 or 3:45 a.m. The attendant told Tennant that there was an injured worker who had been "pinched between two [pieces of equipment] and EMTs were on their way." (App. at 279.) Tennant decided to go to the mine, even though he did not do so for every accident. He went this time "[b]ecause an employee was pinched between two large pieces of equipment." (App. at 289.) On his way, the attendant called again. The attendant gave more information about the medical personnel and Stern's extraction from the mine, and he said that Life Flight had been called[6] and that Stern "had a broken leg, [a] dislocated indicated hip or some lower-type pelvis-type incident," and "tightening of the stomach[, ]" but "was conscious and alert, [and] had been talking." (App. at 280, 330.)

         After Tennant arrived, at around 4:30 or 4:45 a.m., he spoke to Smith and others. He called MSHA at approximately 5:09 a.m. Tennant testified, however, that he did not think there was a reasonable potential for death. Rather, he reported the incident "because [inspectors] were going to be rolling in at any point in time, and [he] didn't want them to come in and not know anything about the event[, ]" given that "Life Flight was called" and there had been "a serious accident[.]" (App. at 318.) He also said that Life Flight is often called even if injuries are not severe enough to notify MSHA.[7]

         Stern was ultimately taken to a hospital by ground because it was too foggy for a Life Flight airlift. He did have internal bleeding, but doctors predicted it would stop within an hour and a half, and it did. Surgery was performed because Stern had a broken pelvis.

         MSHA inspector Thomas Bochna investigated the incident. He ultimately decided to issue Consol a citation under 30 C.F.R. § 50.10(b) for failing to alert MSHA about the accident within the first 15 minutes after it occurred. He testified that he issued the citation based on the following reasoning:

[A]fter interviews, investigating the accident, the conditions that the people onsite were observing, I thought in the first 15 minutes there was enough evidence with the things they were reporting that the person was complaining about, what he was feeling, what they were seeing, that it was reasonably - you know, an injury was - reasonable potential to cause death[.]

(App. At 157.) He proposed a fine of $5, 000, which was then the minimum under the statute and MSH regulations.

         C. Procedural History

         The citation was litigated before an administrative law judge ("ALJ") who upheld MSHA's citation and the proposed penalty. Consol promptly appealed to the Commission itself.

         The Commission affirmed. It first determined the appropriate legal standard. It observed that, "when assessing the merits of a violation under section 50.10(b), the Commission employs a reasonable person standard, resolving reasonable doubt in favor of notification[, ]" and it concluded that "[t]he outcome determinative inquiry in this case is whether responsible Consol employees had information that would lead a reasonable person to conclude there was a reasonable potential for death based upon the nature of the injury and the totality of the circumstances." (App. At 8, 10). It further said that, under the "totality of the circumstances" test, "the scope of the relevant evidence available to assist for purposes of section 50.10(b) generally will consist of the evidence available at the scene of the accident, at the time of the accident, and immediately following the accident[, ]" and, "[w]hile the record will often contain subsequent relevant information from medical professionals, this information" is less probative because it "will likely not materialize until the time to make a decision to notify MSHA has already passed." (App. At 8.) The Commission made clear that "[t]he notification requirement does not, and cannot, rest upon a post-medical treatment analysis of the likelihood of death from the injuries." (App. At 9.)

         Turning to a review of the facts, the Commission agreed with the ALJ that Consol was aware of information that would lead a reasonable person to conclude that Stern's injuries involved a reasonable potential for death. It said:

In light of the knowledge and training possessed by Tennant, McDonald, and Smith, we conclude that someone with sufficient authority at Consol was aware of Stern's injury-causing event. These employees surely realized from their training that, when a miner is pinched between major pieces of equipment and then suffers from a distended and hardened abdomen, there is a high potential if not a likelihood of internal bleeding. In turn, nearly every knowledgeable witness testified to the obvious - namely, internal bleeding is a potential cause of death. Under these circumstances, the evidence overwhelmingly demonstrates that a reasonable person possessing the available information would have concluded there was a reasonable potential for death.

(App. at 11; see also App. at 10 ("Perhaps most importantly and certainly outcome determinative here, … [Smith and McDonald] became aware of possible internal bleeding, knew such bleeding could cause death, and asked for a Life Flight due to concern over the nature and severity of Stern's injuries, including the circumstances which caused them.").) The Commission concluded that substantial evidence supported the ALJ's "finding that Consol had a duty to contact MSHA immediately after the accident." (App. at 3.)

         Next, the Commission considered the appropriate penalty. It rejected Consol's argument that the ALJ "erred in failing to consider a penalty lower than the statutory minimum of $5, 000 because the Commission assesses penalties de novo and is not bound by" the penalty provisions in 30 U.S.C. § 820(a)(2). (App. at 13.) The Commission explained that it "ha[d] determined that an assessment of penalty for a non-flagrant violation of section 50.10(b) is governed by" the limitations in § 820(a)(2). (App. at 13.) And, it reasoned that § 820(a)(4) requires courts to "apply at least the minimum penalties required under" § 820(a), so "[a] statutory scheme [of the sort Consol suggested] that permits the Commission to assess any penalty, however minimal, but requires a reviewing court to impose a penalty of at least $5, 000, makes no sense." (App. at 14 (citation omitted).)

         Consol timely petitioned for review.

         II. Discussion[8]

         Consol raises three primary challenges to the Commission's decision. First, it says the legal standard applied by the Commission is inappropriate. Second, it asserts that the citation is not supported by substantial evidence. And third, it contends that the Commission was not bound by the mandatory minimum penalty of $5, 000. Each of those positions is unpersuasive.

         A.The Commission's ...

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