                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                  No. 18-3078
                 _____________

CONSOL PENNSYLVANIA COAL COMPANY, LLC,
                        Petitioner

                        v.

FEDERAL MINE SAFETY AND HEALTH REVIEW
 COMMISSION; SECRETARY UNITED STATES
        DEPARTMENT OF LABOR,
                          Respondents
             ______________

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

                     Argued
                  June 25, 2019

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

         (Opinion Filed: October 22, 2019)
                     _______________

James P. McHugh [ARGUED]
Christopher D. Pence
Hardy Pence
500 Lee Street – Ste. 701
Charleston, WV 25329
      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
201 12th Street South – Ste. 401
Arlington, VA 22202

John T. Sullivan
Federal Mine Safety and Health
   Review Commission
1331 Pennsylvania Avenue, N.W. – Ste. 520N
Washington, DC 20004
      Counsel for Respondents
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

        As with many other things, when it comes to mining, it
is far better to be safe than sorry. To monitor and encourage




                              2
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).




                              3
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
[MSHA1] … 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


       1
          The statute uses the term “Secretary,” 30 U.S.C.
§ 813(j), referring to “the Secretary of Labor or his delegate[,]”
id. § 802(a). In this context, MSHA is the Secretary’s delegate.
29 U.S.C. § 557a.




                                4
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



       2
         We refer to the rulemaking that established that
regulation as the “post-MINER Act rulemaking.”




                               5
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.




       3
          A fire boss mine examiner “examine[s] the whole
mine with the provisions of the law” for issues such as safety
violations. (App. at 209.) EMTs are emergency medical
technicians, sometimes called paramedics. Smith was a
licensed EMT, and McDonald had EMT training but was not
licensed.
       4
          “Clearing the haulage” means to “clear[] the
equipment out of the way” within the mine to quicken
extraction from the mine. (App. at 134.)




                               6
       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.


       5
         Smith and McDonald were aware, however, that there
are different degrees of internal bleeding and that hardening
and swelling of the abdomen can be caused by things other than
internal bleeding.




                               7
        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 called6 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.




       6
         There is some ambiguity as to whether Tennant
learned about the call to Life Flight during the first or second
conversation with the bunker attendant.




                               8
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.




       7
         In testimony, however, both Tennant and McDonald
acknowledged that “red zone” incidents – where a miner enters
a pinch point between pieces of equipment – are quite serious.




                               9
       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




                               10
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




                              11
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.    DISCUSSION8

        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.


       8
         The Commission had jurisdiction pursuant to 30
U.S.C. §§ 815(d), 823(d). We have jurisdiction under 30
U.S.C. § 816(a)(1). We review legal conclusions de novo and
findings of fact for substantial evidence. Cumberland Coal
Res., LP v. Fed. Mine Safety & Health Review Comm’n, 515
F.3d 247, 252 (3d Cir. 2008).




                              12
       A.     The Commission’s Legal Standard

       Consol attacks various aspects of the legal standard
articulated by the Commission. But that standard is correct
and, indeed, compelled by the pertinent statute and regulation,
30 U.S.C. § 813(j) and 30 C.F.R. § 50.10(b).

              i. The Commission’s Legal Standard Is
                 Required by 30 U.S.C. § 813(j) and 30
                 C.F.R. § 50.10(b)

        The Commission’s legal standard, in summary, is as
follows. First, reasonable doubts must be resolved in favor of
notifying MSHA; second, liability must be assessed based on
whether a reasonable person in the circumstances would view
the injuries as having a reasonable potential to cause death;
third, the totality of the circumstances must be considered; and
fourth, the focus must be on the information available around
the time of the injury, so post-hoc medical evidence is less
probative.

       We have never had occasion to interpret 30 U.S.C.
§ 813(j) or 30 C.F.R. § 50.10(b), so we start from first
principles of statutory and regulatory construction.9 Cf. Pa.

       9
         Consol does not argue that the regulation conflicts
with the statute. Accordingly, we need not consider whether
the regulation is an appropriate construction of the statute and
we treat both provisions in tandem. We note, however, that
there seems to be a gap between the statute and the regulation.
Section 813(j) says that an operator must notify MSHA “within
15 minutes of the time at which the operator realizes that … an
injury … of an individual at the mine which has a reasonable
potential to cause death, has occurred[,]” 30 U.S.C. § 813(j)




                              13
Fed’n of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337,
351 (3d Cir. 2007) (“The basic tenets of statutory construction
apply to construction of regulations[.]”). Our Pole Star is the
principle that, if a statute or rule is unambiguous, we must give
effect to its plain meaning. See Kisor v. Wilkie, 139 S. Ct.
2400, 2415 (2019) (stating the principle in the context of
regulatory interpretation). We are further guided by the
Supreme Court’s recent admonition that “hard interpretive
conundrums, even relating to complex rules, can often be
solved” without “wav[ing] the ambiguity flag[.]” Id. Indeed,
we may not consider a statute or rule to be “genuinely
ambiguous” unless it remains unclear after we have
“exhaust[ed] all the ‘traditional tools’ of construction.” Id.
(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 n.9 (1984)). Consequently, our analysis
proceeds by “‘carefully consider[ing]’ the text, structure,
history, and purpose” of the statute and regulation. Id. (citation
omitted).

       We start with the language of the notification
requirement itself. See Food Mktg. Inst. V. Argus Leader
Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory


(emphasis added), whereas the regulation contains a similar
directive but uses the term “knows or should know” instead of
“realizes,” 30 C.F.R. § 50.10. But, even if we were to consider
that gap, it would not affect our analysis here. The
Commission’s decision was premised on its conclusion that
Consol “knew the requisite information” and that “a reasonable
person evaluating the known facts would have found a
reasonable potential for death.” (App. at 11 n.10 (emphasis
added).) Those factual premises are sound, and we take the
same approach.




                               14
interpretation disputes, a court’s proper starting point lies in a
careful examination of the ordinary meaning and structure of
the law itself.”). As referenced earlier, § 813(j) provides, in
relevant part:

         In the event of any accident occurring in any coal
         or other mine, the operator shall notify
         [MSHA]10 thereof and shall take appropriate
         measures to prevent the destruction of any
         evidence which would assist in investigating the
         cause or causes thereof. For purposes of the
         preceding sentence, the notification required
         shall be provided by the operator within 15
         minutes of the time at which the operator realizes
         that the death of an individual at the mine, or an
         injury or entrapment of an individual at the mine
         which has a reasonable potential to cause death,
         has occurred.

30 U.S.C. § 813(j). Similarly, the regulation says, in part:

         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: … (b) An injury of an
         individual at the mine which has a reasonable
         potential to cause death[.]




         10
              Again, MSHA is the delegate of the Secretary of
Labor.




                                15
30 C.F.R. § 50.10. On its face, that language does not specify
the standard by which one is to determine whether an injury
from a mine accident is one “which has a reasonable potential
to cause death.” Thus, we look to other sources of guidance.

       The first source we consider is the stated purpose of the
Mine Act. The “Congressional findings and declaration of
purpose[,]” set forth in 30 U.S.C. § 801, specify that the goal
of the Mine Act is to protect miners. Section 801 says, for
example, that “the first priority and concern of all in the coal
or other mining industry must be the health and safety of its
most precious resource – the miner”; that “deaths and serious
injuries from unsafe and unhealthful conditions and practices
in the coal or other mines cause grief and suffering to the
miners and to their families”; and that “there is an urgent need
to provide more effective means and measures for improving
the working conditions and practices in the Nation’s coal or
other mines in order to prevent death and serious physical
harm[.]” 30 U.S.C. § 801(a)-(c); see also Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 202 (1994) (“Congress adopted the
Mine Act ‘to protect the health and safety of the Nation’s coal
or other miners.’” (quoting 30 U.S.C. § 801(g)). Moreover,
§ 801 makes clear that miner protection is central to the mining
industry’s interests, so the Mine Act does not seek to balance
miners’ safety against any inconvenience associated with
compliance that mine operators might face. See 30 U.S.C.
§ 801(d) (“[T]he existence of unsafe and unhealthful
conditions and practices in the Nation’s coal or other mines is
a serious impediment to the future growth of the coal or other
mining industry and cannot be tolerated[.]”); see also id.
§ 801(f) (“[T]he disruption of production and the loss of
income to operators and miners as a result of coal or other mine
accidents … unduly impedes and burdens commerce[.]”).




                              16
       The second source of guidance we look to is the
objectives of the notification requirement itself.            That
requirement is plainly designed to encourage rapid notification
so that MSHA can respond effectively in an emergency and
preserve evidence to facilitate later investigation. Section
813(j) specifies that “any accident occurring in any coal or
other mine” is to be reported to MSHA. Id. § 813(j). So it is
not just potentially deadly accidents that are reportable.11
Furthermore, § 813(j) says that mine operators must “take
appropriate measures to prevent the destruction of any
evidence which would assist in investigating the cause or
causes” of an accident and, “where rescue and recovery work
is necessary, [MSHA] shall take whatever action [it] deems
appropriate to protect the life of any person, and [it] may, if [it]
deems it appropriate, supervise and direct the rescue and
recovery activities[.]” Id. Thus, concern for the preservation
“of any evidence which would assist in investigating the cause
or causes” of accidents, and, more importantly, the need for
government action “to protect the life of any person” and
manage “rescue and recovery activities[,]” id., justify reporting
of non-lethal accidents too. The 15-minute notification
window is in force for potentially deadly accidents, and reflects
the naturally heightened level of concern. When death is a
reasonable possibility, “[i]mmediate notification activates
MSHA emergency response efforts, which can be critical in
saving lives, stabilizing the situation, and preserving the

       11
          Under the Mine Act, “accident” is defined to include
“a mine explosion, mine ignition, mine fire, or mine
inundation, or injury to, or death of, any person[.]” 30 U.S.C.
§ 802(k).




                                17
accident scene[,]” and “[p]rompt notification enables MSHA
to secure an accident site, preserving vital evidence that can
otherwise be easily lost.”12 Emergency Mine Evacuation, 71
Fed. Reg. at 71,431, 71,435.

       The final source of guidance is the history of the
notification requirement. Relevant here, the 15-minute rule
was added to the statutory framework by the MINER Act,
which was enacted largely in response to three lethal mining
accidents. S. Rep. No. 109-365, at 1-2, 9; see also Cumberland
Coal, 717 F.3d at 1022 (“The violations at issue in this case
arose under amendments to the [Mine] Act enacted in response
to three multiple-fatality mine disasters, in which miners who
were unable to evacuate mines died.”). The MINER Act
Senate Report explained that “[t]hese tragedies serve as a
somber reminder that even that which has been done well can
always be done better.” S. Rep. No. 109-365, at 2. The
MINER Act codified an MSHA emergency regulation that first
imposed the 15-minute notification rule. See Emergency Mine
Evacuation, 71 Fed. Reg. 12,252 (Mar. 9, 2006).

      That earlier MSHA emergency regulation was
promulgated in response to two of the same incidents that

       12
           Under the regulation, the 15-minute notification
requirement attaches to all “accident[s,]” 30 C.F.R. § 50.10,
and the regulatory definition of “[a]ccident” includes 12
specific types of events, including “[a]n injury to an individual
at a mine which has a reasonable potential to cause death[,]”
id. § 50.2(h) (emphasis added). The statute and regulation thus
agree that potentially deadly accidents require notification
within 15 minutes. Cf. id. § 50.10(a)-(c) (requiring notification
within 15 minutes for deadly or potentially deadly accidents).




                               18
motivated the MINER Act. Id. at 12,252, 12,253-54; see also
Cumberland Coal, 717 F.3d at 1022 (“Also in the wake of the
disasters, MSHA issued an Emergency Temporary Standard on
emergency mine evacuations in March 2006.”).                 The
emergency rulemaking explained that, “[i]n response to the
recent accidents …, MSHA has determined that new accident
notification, safety and training standards are necessary to
further protect miners when a mine accident takes place.”
Emergency Mine Evacuation, 71 Fed. Reg. at 12,253. The
very first of the “new standards” described was the 15-minute
rule, and MSHA emphasized that the rule would serve to better
protect miners by facilitating the objectives of the notification
requirement, as set out above. See id. (“Such immediate
notification will enable help to arrive sooner at the mine, and
protect miners from the grave dangers of physical injury and
death.”); id. at 12,257 (“Notification alerts the Agency so that
accident investigations and assistance to trapped or injured
miners can be initiated.”). In sum, the history of the
notification requirement shows that a 15-minute provision was
adopted in response to deadly mine accidents and was meant
to increase the speed of notification to allow MSHA to more
effectively protect miners.

       Considering those several guideposts together, it is
plain that the notification requirement was designed to serve
the Mine Act’s unyielding purpose of protecting miners by
encouraging rapid notification, thereby allowing MSHA to
effectively initiate an emergency response and to ensure the
preservation of evidence for use in investigations. The
notification requirement should be interpreted to effectuate that
purpose. In light of that, the Commission’s legal standard is
entirely sound, as a consideration of each of the four
components of that legal standard demonstrates.




                               19
                       1.   Reasonable Doubts Must Be
                            Resolved     in Favor  of
                            Notification

        First, it makes sense that all reasonable doubts must be
resolved in favor of notifying MSHA. If the rule were
otherwise, mine operators would be encouraged not to call
MSHA until an accident was sure to be life threatening,13
despite the standard being an accident having “a reasonable
potential to cause death.” The severity and scope of an
emergency are rarely apparent in the moment, and by the time
clarity has been achieved, an MSHA response may be too little,
too late. Furthermore, no risk to miners would result from an
erroneous MSHA notification, whereas substantial risk could
result from a failure to notify, with MSHA being prevented
from initiating an emergency response and beginning a
successful investigation.        Given that the notification


       13
           The Commission said that it “has not found it
necessary to” define “reasonable potential to cause death.”
(App. at 7 (citing Secretary of Labor v. Signal Peak Energy,
LLC, 37 FMSHRC 470, 474 (2015)).) In Signal Peak, the
Commission observed that it was enough to say the accident
was “life-threatening[,]” because, in that case, the miner’s
“injuries clearly [fell] within the realm of a reasonable
potential to cause death[.]” 37 FMSHRC at 474 (citation and
internal quotation marks omitted). Therefore, the Commission
both here and in Signal Peak concluded that the injuries at issue
had a reasonable potential to cause death under a “life
threatening” standard. We follow the Commission’s lead in
that regard and use “life threatening” as a working
interpretation of “reasonable potential to cause death.”




                               20
requirement and the statutory and regulatory scheme at issue
are designed to provide robust protections for miners – and not
to balance those protections against compliance
difficulties – the only rule that effectuates the purpose of the
statute and regulation is one that requires notification in cases
where there is reasonable doubt whether the accident will
prove to have “a reasonable potential to cause death.”

        Consol argues that requiring reasonable doubts to be
resolved in favor of notification appears nowhere in the text of
the statue or regulation and that adopting such a rule shifts the
burden of proof to the operator. But that argument misses the
mark, because a logical reading of the text does support the
rule, as we have just explained, and, in any event, text is the
starting point in understanding a statute or regulation, not
necessarily the ending point. Moreover, the conclusion that
reasonably doubtful cases require notification has nothing to
do with who must prove whether a case falls into the
“reasonably doubtful” category.

                       2.   The Notification Requirement
                            Must Be Interpreted from the
                            Perspective of a Reasonable
                            Person in the Circumstances

       Second, the notification requirement must be analyzed
on an objective basis, asking whether a reasonable person in
the circumstances would view a miner’s injury as having a
reasonable potential to cause death. Only an objective test
ensures that mine operators cannot weaken miner protection by
asserting their subjective views as a defense against calling
MSHA. An objective standard – which focuses on the
reasonably perceived severity of an accident in the




                               21
moment – likewise reinforces the incentive for mine operators
to notify MSHA quickly, when the agency can take effective
action.

        To its credit, Consol does not claim that a subjective
standard would suffice. Rather, the alternative rule it argues
for would require MSHA to prove that the injured miner
actually faced a reasonable potential for death as a matter of
medical fact, even if the actual severity of his injuries was
unknowable at the time of the incident. That rule, however,
like a subjective standard, would undermine what the
notification requirement seeks to accomplish. In marginal
cases, it would encourage mine operators to forego calling
MSHA after an accident in the hopes that the true but presently
unknown medical facts would turn out to be better than those
perceived in the moment. Under Consol’s proposal, an injury
would not become reportable until a mine operator has gained
sufficient expert advice to say with medical certainty that the
injury had a reasonable potential to cause death. That, of
course, would mean almost certain delay, since physicians are
not on standby in mines.14 Consol’s rule would thus frustrate
rather than facilitate reporting. See Sec’y of Labor v. Cougar

       14
          Consol asserts that delay would not be a problem,
contending that “[t]he immediacy burden on Consol has
nothing to do with the elemental burden on the Secretary.”
(Opening Br. at 27.) But we fail to see how that could be so.
If MSHA can only prove whether an injury having a reasonable
potential to cause death occurred by resorting to medical
evidence, it follows that a mine operator could not have
sufficient awareness of the occurrence of such an injury until
the medical evidence is available, and it is highly unlikely to
be available on site.




                              22
Coal Co., 25 FMSHRC 513, 521 (2003) (“If we were to accept
the [ALJ’s] construction [requiring that MSHA furnish a
medical opinion that a miner’s injuries had a reasonable
potential to cause death], a medical or clinical opinion of the
potential of death would be needed before an accident is even
determined to be reportable under section 50.10. Such a
construction would serve to frustrate the immediate reporting
of near fatal accidents.”).

       The conclusion that a “reasonable person in the
circumstances” standard is the required one – and that a rule
focused on the eventually proven medical severity of an injury
is not – is further supported by our determination that
reasonable doubts must be resolved in favor of notification.
When the perceived severity of an injury is high but the true
medical severity is not yet known, a mine operator should
surely have a reasonable doubt about concluding that no
reasonable potential for death exists.

        Finally, in Mainline Rock & Ballast, Inc. v. Secretary of
Labor, 693 F.3d 1181 (10th Cir. 2012), one of the few Court
of Appeals opinions on point, the Tenth Circuit upheld a
citation under 30 C.F.R. § 50.10(b) by applying a “reasonable
person in the circumstances” test, and it did so without ever
addressing whether MSHA had proven that the injury involved
a reasonable potential for death as a matter of medical fact.
Mainline Rock, 693 F.3d at 1189. Further, and importantly, the
court nowhere described that regulation as ambiguous, but




                               23
rather treated the standard it applied as the one obviously and
logically required.15

       Although the foregoing analysis adequately
demonstrates that the statute and regulation are governed by a
“reasonable person in the circumstances” standard, that
conclusion is reinforced by the history of the regulation. The
post-MINER Act rulemaking expressly said that the
notification inquiry “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.’”          Emergency Mine
Evacuation, 71 Fed. Reg. at 71,434 (alteration in original)
(emphasis added) (citation omitted). And it rejected a focus on
the medical facts, stating, “the operator’s decision as to what
constitutes 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.’” Id. at 71,433-34 (citation
omitted).

        In short, the standard that best accomplishes the aims of
the notification requirement is one that focuses on whether a
reasonable mine operator in the circumstances would perceive
a reasonable potential for death. Consol challenges that
conclusion by asserting that, under a “reasonable person in the
circumstances” standard, “the operator would face an ever-
moving target and have no way to defend itself[.]” (Opening
Br. at 26.) Not so. The target is clear, even if it is not the one
Consol would prefer to have in its sights. Giving Consol what

       15
          Because the operative language of the statute and
regulation are the same, we view Mainline Rock as supporting
our interpretation of both.




                               24
it wants – a complete defense based on medical facts unknown
at the time – would, as set out above, substantially conflict with
the statutory and regulatory framework before us.16

                       3.    The     Totality       of        the
                             Circumstances         Must        Be
                             Considered

        It is also clear that § 813(j) and its regulatory
counterpart, § 50.10(b), must be applied in light of the “totality
of the circumstances.” Under a “reasonable person in the
circumstances” standard, the circumstances to be considered
are necessarily all of them, not just some. How else could one
be expected to assess whether an injury suggests a reasonable
potential for death, other than by using a “totality of the
circumstances” test? Injuries, by the very nature of the
accidents that cause them and the complexity of the human
body, come in too many varieties to easily catalogue. And the
factors suggesting that an injury is serious are just as diverse.
A “totality” inquiry is thus proper because, as with other
matters of judgment, whether an injury is reasonably perceived
as life threatening is “not readily, or even usefully, reduced to
a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232,
238 (1983) (concluding that a “totality of the circumstances”
test was appropriate in a Fourth Amendment case); see also


       16
         Consol also argues that, “[h]istorically, ALJs actually
required the Secretary to present medical proof to sustain a
violation[.]” (Opening Br. at 23.) That argument, however,
gains no traction because, even if the historical assertion is
accurate, the statute and regulation are unambiguous, and ALJ
decisions neither bind the Commission nor qualify as agency
precedent. 29 C.F.R. § 2700.69(d); Big Ridge, 715 F.3d at 640.




                               25
Mainline Rock, 693 F.3d at 1189 (upholding a citation under
30 C.F.R. § 50.10(b) after holistically analyzing a mining
accident and concluding that “the obvious circumstances of the
accident would have triggered some minimal degree of inquiry
in a reasonable person, thus prompting a call to the MSHA”).

       Again, the purpose of the notification requirement has
to be borne in mind. Myopically focusing on one factor or a
subset of factors, rather than the totality of the
circumstances, would permit mine operators to avoid calling
MSHA, even while possessing information reasonably
showing that an injury is life threatening, simply because that
information did not fit into an artificially-constructed category.
Any test other than one based on a “totality of the
circumstances” would thus put miners at unnecessary risk and
would undermine the purposes and design of the notification
requirement.

        The necessity of a “totality” approach is underscored by
the above-noted conclusion that all reasonable doubts must be
resolved in favor of notification. A holistic approach captures
the full range of information that could lead to reasonable
doubts about concluding that no reasonable potential for death
exists.

       The history of the regulation remains instructive. The
notification decision was expressly contemplated as being
“based on what a reasonable person would discern under the
circumstances[.]” Emergency Mine Evacuation, 71 Fed. Reg.
at 71,434 (emphasis added). And, the drafters of the regulation
explained that injuries involving a reasonable potential for
death “can result from various indicative events,” so they




                               26
encouraged that all factors, including the injury itself and the
nature of the accident, be considered.17 Id.

        Consol mainly challenges the “totality of the
circumstances” rule on the ground that it permits factors not
listed in the statute or regulation to overcome a lack of medical
evidence. In that regard, it contends that the focus must be on
the injury alone and not the circumstances surrounding it

       17
           We note that “totality of the circumstances” can be
read in two different, albeit related, ways. First, it can refer to
what the mine operator must consider in deciding whether to
call MSHA. Second, it can refer to the evidence courts and the
Commission should consider in evaluating a notification
charge. In our view, both readings are appropriate and
required. That is so for the first reading for all the reasons set
out above. And it is so for the second reading because that
reading is simply the adjudicatory corollary of the first.
        The second reading is broader than the first, as it allows
consideration of evidence that was not actually before the mine
operator at the time the operator made the decision whether to
notify MSHA. But considering all available evidence is
appropriate at the adjudication stage because it can provide
important circumstantial evidence of what a reasonable mine
operator would have perceived. For example, if there were
little direct evidence of what a mine operator actually saw
around the time of an accident, but the record demonstrated
that numerous mine employees were nearby when the accident
occurred and that a post-hoc medical examination revealed that
the injured miner had been bleeding profusely since the
moment of injury, the post-hoc medical evidence could be
viewed as significant circumstantial evidence of what was
known at the scene.




                                27
– such as the nature of the accident – because “injury” is what
appears in the text. It further asserts that “[r]ushing to get
someone to the hospital fast is not proof that someone may die”
and neither “is the nature of the accident (e.g., a car being
totaled sounds terrible, but people walk away from such
accidents).” (Reply Br. at 16 n.9.) And, more generally, it
warns that, “[i]f the Court allows uninterpreted generalized
observations to act as a substitute for evidence, then all the
Secretary will have to do is call one witness to describe a
chaotic injury scene and the ALJ, who also has no medical
training, would then be free to speculate that virtually any
injury has a reasonable potential to cause death.” (Reply Br. at
17.)

       Those arguments conveniently neglect that generalized
observations are evidence, often crucial evidence, and nothing
in the statute or regulation requires or even encourages that
they be ignored. Consol’s suggestion that a “totality” standard
is inappropriate because it allows consideration of factors that
are not listed in the statute or regulation rests on the blinkered
notion that only that which is express and nothing that is
plainly implied is the meaning of a text. Ordinary experience
and general legal principles prove that wrong. Cf. Gates, 462
U.S. at 232, 238 (adopting a “totality of the circumstances” test
in the probable cause context even though the Fourth
Amendment does not mention “totality of the circumstances”
or describe what those circumstances might include).

       Furthermore, Consol’s argument that a “totality”
inquiry can wrongly be used to “overcome” a lack of medical
evidence could only be true if the notification requirement
focused on whether the injured miner faced a reasonable
potential for death as a matter of medical fact. But that is not




                               28
the case, for reasons already discussed. Later-developed
medical evidence is not the focus. And, we cannot accept the
contention that the notification requirement forbids
consideration of the circumstances surrounding an injury, such
as the nature of the accident that caused it.

       Relatedly, Consol’s assertion that some factors
considered under a “totality” inquiry might not prove a
reasonable potential for death is beside the point. Yes, an
individual fact taken in isolation may not prove something, but
that does not make the fact irrelevant. The very reason to have
a “totality” inquiry is so that all facts can be considered
together and analyzed holistically. In that regard, the fear that
a mere description of a chaotic scene will lead to liability is
unfounded. Under a test that examines all available evidence,
a description of a chaotic scene, without more, is unlikely to
establish that an injury involving a reasonable potential for
death had occurred. It is the “more,” not the chaotic scene, that
Consol needs to be chiefly worried about.

       Lastly, Consol’s position is unconvincing in light of
what both the post-MINER Act rulemaking and Mainline Rock
persuasively instruct. The rulemaking explained that certain
injuries involving a reasonable potential for death “can result
from various indicative events,” demonstrating that the nature
of the accident is a relevant consideration. Emergency Mine
Evacuation, 71 Fed. Reg. at 71,434. And, in Mainline Rock,
the court made clear that the nature of the accident is relevant
and, indeed, could be dispositive. See 693 F.3d at 1189 (“Th[e]
knowledge [that a miner had been pulled through a roller] alone
would have alerted [a mining official] to the severity of the
accident and the potential for death.”).




                               29
                       4.    The Focus of the Notification
                             Requirement Must Be on the
                             Information Available at the
                             Time of Injury, So Post-Hoc
                             Medical Evidence Is Less
                             Probative

        Finally, because the focus of the notification
requirement must be on the information available to the mine
operator around the time of the injury, post-hoc medical
evidence is less probative of whether MSHA should be
notified. If reasonable doubts are to be resolved in favor of
notification, evidence that was not available at the time of the
injury, such as post-hoc medical evidence, will not resolve
reasonable doubts created in the moment by an injury that is
apparently life threatening. The focus must be on the facts
available at the time of injury, and post-hoc medical evidence
can, at best, serve in the attenuated role of raising an inference
about what the mine operator perceived, including the injury’s
apparent severity. If the totality of the circumstances around
the time of the accident is considered – as it must be – the
importance of post-hoc evidence will necessarily be diluted.18



       18
          Consol counters that, “[u]ntil now, hospital-based
information has been routinely relied upon by the Commission
in other cases.” (Reply Br. at 12.) But neither of the decisions
Consol cites actually relied on such evidence. See Signal Peak,
37 FMSHRC at 473, 476-77; Cougar Coal, 25 FMSHRC at
521. More to the point, however, nothing in the Commission’s
ruling or in ours today prevents reliance on hospital-based
information, when that information is kept in proper
perspective.




                               30
              ii.    Consol’s Additional Challenges to the
                     Commission’s Legal Standard Are
                     Unavailing

      Consol raises two additional arguments challenging the
Commission’s legal standard and its application here. Neither
convinces us that the Commission erred.

                     1.     Reasonable Person Comparator
                            Evidence

       Consol first argues that, if we adopt a “reasonable
person in the circumstances” standard, MSHA should have to
present comparator evidence to prove what a reasonable person
would have done. It says that, in Secretary of Labor v. Leeco,
Inc., No. KENT 2012-166, 2016 WL 4158378 (F.M.S.H.R.C.
July 18, 2016), the Commission required such proof.

       That argument overreads Leeco. In that case, the
Commission simply said that, when MSHA seeks to prove that
a mining company acted negligently, it cannot satisfy its
burden by saying the company “should have done more” and,
instead, must “show[] what additional steps” the company
should have taken to meet its standard of care. Id. at *4-5. That
observation is inapposite to notification cases, in which there
is no need to determine what “additional steps” might have
been required. The core question in cases like this is whether
a reasonable mine operator would have called MSHA, and that
question is answerable through evidence of the facts available
around the time of the accident. Indeed, that has been the
Commission’s approach, Secretary of Labor v. Signal Peak
Energy, LLC, 37 FMSHRC 470, 475-77 (2015), and the Tenth
Circuit followed it as well in Mainline Rock, 693 F.3d at 1189.




                               31
       Furthermore, whether someone acted reasonably is
typically a question for the finder of fact, at least as long as
“reasonableness” is within the factfinder’s common
knowledge and experience. See, e.g., Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 580 (3d Cir. 2003) (“A
reasonable jury could conclude that [Prison Health Service]
personnel were negligent absent expert testimony. … While
laypersons are unlikely to know how often insulin-dependent
diabetics need insulin, common sense – the judgment imparted
by human experience – would tell a layperson that medical
personnel charged with caring for an insulin-dependent
diabetic should determine how often the diabetic needs
insulin.”); Wilburn v. Maritrans GP Inc., 139 F.3d 350, 360
(3d Cir. 1998) (“The jury could have found [based on its
common understanding] that Maritrans was liable for
negligence because the Samson line was not released in a
manner that was reasonably prudent under the exigent
circumstances confronting the persons aboard the
Enterprise.”); cf. Vázquez-Filippetti v. Banco Popular de P.R.,
504 F.3d 43, 50 (1st Cir. 2007) (“[A] typical tort claim involves
the generic ‘reasonably prudent person’ standard of care (or
duty) and requires the plaintiff to present no evidence about the
defendant’s duty[.]”). It is within the province of the
Commission’s ALJs to determine whether a reasonable mine
operator would have perceived a reasonable potential for death.
Cf. Thunder Basin, 510 U.S. at 214 (explaining that claims
arising under the Mine Act “fall squarely within the
Commission’s expertise”).

       Nothing in the statute or regulation suggests an intent to
create a novel evidentiary rule requiring “reasonable person”
comparator evidence. We presume that rulemaking authorities
are aware of existing law when they promulgate statutes or




                               32
regulations. Cf. Mississippi ex rel. Hood v. AU Optronics
Corp., 571 U.S. 161, 169 (2014) (“[W]e presume that Congress
is aware of existing law when it passes legislation.” (citation
and internal quotation marks omitted)). If Consol’s proposed
evidentiary rule had been envisioned, it would surely have
been made explicit in the statute and regulation.

                      2.      Fair Notice

        Second, Consol argues that it did not have fair notice of
either the Commission’s “totality of the circumstances” test or
its “reasonable person in the circumstances” standard. Consol
raises a number of arguments in that regard, but, based on a
single line of reasoning, we conclude that all are without merit.

       The Fifth Amendment’s Due Process Clause is violated
for lack of fair notice if a statute or regulation “fails to provide
a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages
seriously discriminatory enforcement.” FTC v. Wyndham
Worldwide Corp., 799 F.3d 236, 249 (3d Cir. 2015) (citation
omitted). That “fair notice doctrine extends to civil cases,
particularly where a penalty is imposed.” Id. at 250. But, a
party necessarily has fair notice of how a statute or regulation
will be interpreted if only one interpretation is unambiguously
compelled by the provision at issue.19 See Sec’y of Labor v.


       19
          That is not to say that a party can never raise a fair
notice challenge to unambiguous laws. For example, a
provision may plainly require a certain legal standard that itself
does not provide fair notice of how it will be applied. A fair
notice challenge would be appropriate in that circumstance to
contest the required standard.




                                33
Beverly Healthcare-Hillview, 541 F.3d 193, 197-98 (3d Cir.
2008) (“Before we assess … whether Beverly had fair notice
of that interpretation, we must determine whether the meaning
of regulatory language is ‘free from doubt.’ … If Beverly is
correct [that the language is unambiguous], our inquiry would
be at an end.” (citation omitted)). Here, we have concluded
that the Commission’s legal standard is plainly compelled by
the statute and regulation. Consol thus had fair notice of it.

        To the extent Consol’s argument is that the
Commission’s legal standard fails to provide fair notice of how
it will be applied and so Consol lacked fair notice that the
specific factual scenario at issue here would constitute a
notification violation, again its position is unpersuasive.
Where, as here, an economic regulation is in question, fair
notice is deemed given unless “the relevant standard is ‘so
vague as to be no rule or standard at all[,]’” which is an
“especially lax” requirement.20 Wyndham, 799 F.3d at 250
(citation omitted). The Commission’s legal standard is not so
vague as to fall into that category,21 and, as suggested already

       20
          Recall that whether 30 C.F.R. § 50.10 is a proper
interpretation of 30 U.S.C. § 813(j) is not at issue here.
       21
           Courts commonly conclude that MSHA complies
with the fair notice requirement when it “take[s] action to
correct violations that would be apparent to a reasonably
prudent miner.” Consol Buchanan Mining Co. v. Sec’y of
Labor, 841 F.3d 642, 649-50 (4th Cir. 2016). Here, the
Commission’s legal standard allows mine operators to be
penalized only if a reasonable mine operator would have
viewed a miner’s injuries as involving a reasonable potential
for death.




                              34
and detailed further herein, we think it extraordinarily clear
that the injuries in this case reflected a reasonable potential for
death.

       B.     Substantial Evidence Supports the
              Commission’s Decision

       Consol also argues that substantial evidence does not
support the citation against it. That is a surprising argument,
to say the least. The factual finding at issue here is the ALJ’s
determination – agreed     to     and     affirmed      by   the
Commission – that “responsible Consol employees had
information that would lead a reasonable person to conclude
there was a reasonable potential for death[.]”22 (App. at 10.)
That finding is conclusive if it is supported by substantial


       22
           That conclusion is essentially a finding of fact. See
Restatement (Second) of Torts § 328B cmt. g (Am. Law Inst.
1965) (noting that “[n]ormally the determination of the
question whether the defendant has conformed to the standard
of conduct required of him by the law is for the jury” and that
“it is customarily regarded as a question of fact”); U.S. Gypsum
Co. v. Schiavo Bros., 668 F.2d 172, 176 n.2 (3d Cir. 1981)
(explaining that the issue of “how a reasonable person would
have acted in a like situation” is “a determination that is
peculiarly one for the factfinder”); cf. Cumberland Coal, 515
F.3d at 259 (“The Commission correctly concluded that there
was substantial evidence to support the January 16 citation,
since ‘a reasonably prudent person would have recognized that
the bleeder system failed to continuously dilute and move the
methane-air mixture from the worked-out area away from the
active workings.’” (citation omitted)).




                                35
evidence, “mean[ing] such relevant evidence as a reasonable
mind might accept as adequate to support [the] conclusion.”
Cumberland Coal Res., LP v. Fed. Mine Safety & Health
Review Comm’n, 515 F.3d 247, 252 (3d Cir. 2008) (citation
omitted).

       Like the Commission, “we conclude that someone with
sufficient authority at Consol was aware of Stern’s injury-
causing event[,]” given “the knowledge and training possessed
by Tennant, McDonald, and Smith,” and that “the evidence
overwhelmingly demonstrates that a reasonable person
possessing the available information would have concluded
there was a reasonable potential for death.”23 (App. at 11.)

       To recapitulate some relevant facts, McDonald learned
immediately after the accident that Stern had been crushed
between multi-ton pieces of equipment, was in severe pain,
could not move his legs, and could feel “the pinch” on one leg.
McDonald called for Smith (an EMT), for an ambulance, and
(along with Smith) for the mine haulage to be cleared so Stern
could be evacuated. McDonald knew the serious consequences
of such an accident. Smith viewed Stern’s injury as “[p]retty
bad” and “traumatic[.]” (App. at 220.) Demonstrating concern
that Stern might have a spinal injury, Smith placed him in a
neck brace.

       On the way out of the mine, Smith and McDonald
noticed that Stern’s stomach was becoming hard and distended,
a sign, they knew, of internal bleeding. Both recognized that

      23
         Consol does not challenge that the knowledge of
Tennant, McDonald, and Smith can be imputed to it for
purposes of the notification analysis.




                              36
internal bleeding can lead to death. And Smith and McDonald
were sufficiently concerned about Stern’s stomach symptoms
to request a Life Flight evacuation. Neither Smith nor
McDonald had ever called Life Flight before, and Smith had
not heard of anyone doing so since he started working at
Consol years before. Additionally, Stern himself evidently
thought the accident could be fatal, and he said as much by
asking Smith to pass on his love to his wife and family.

       Furthermore, Tennant was called about the accident and
decided to go to the mine, even though he did not always do so
after an accident. He did so in this instance because Stern had
been caught between two large pieces of equipment.

       In short, McDonald, Smith, Tennant, and Stern all had
reactions to the injury indicating an expectation that the injury
was life threatening. On this record, there is certainly “such
relevant evidence as a reasonable mind might accept as
adequate to support” the finding that Consol possessed
information that would lead a reasonable mine operator to
conclude that a reasonable potential for death existed.
Cumberland Coal, 515 F.3d at 252 (citation omitted). Consol
should have called MSHA within the prescribed 15-minute
window.

       None of this is to fault McDonald, Smith, or Tennant
for how they responded to Stern’s injury. They reacted quickly
and commendably to provide effective care to Stern in his
extremity. We simply conclude that a reasonable mine
operator, possessing the information they had, would have




                               37
believed the incident had a reasonable potential to turn fatal,
and there was thus an obligation to call MSHA.24

       C.     The Commission Was Bound by the
              Mandatory Minimum Penalty

      Consol’s final argument is that the Commission was not
bound by the $5,000 statutory minimum penalty under 30
U.S.C. § 820(a)(2) for notification violations. Again, the
company is wrong.

        Section 820 is the Mine Act’s penalties section. Under
subsection (a)(2), “[t]he operator of a coal or other mine who
fails to provide timely notification to the Secretary as required
under section 813(j) … (relating to the 15 minute requirement)
shall be assessed a civil penalty by the Secretary of not less
than $5,000 and not more than $60,000.” 30 U.S.C.
§ 820(a)(2). And, under subsection (i), “[t]he Commission
shall have authority to assess all civil penalties provided in this
chapter.”      Id. § 820(i).       The penalties set out in
§ 820(a), including the mandatory minimums, are “penalties
provided in this chapter,” meaning that the Commission is
bound by those minimums.

       24
         Additionally, and relatedly, our opinion should not be
read to discourage mine operators from taking precautions
such as calling for an airlift in the event of a mine injury. A
mine operator’s reaction to an injury is, of course, relevant in
assessing that injury’s reasonably perceived severity. But,
under a “totality of the circumstances” approach, a mine
operator’s reaction to a particular injury is considered
alongside, inter alia, how the operator has reacted to other, less
severe injuries.




                                38
       In addition, subsection (a)(4) provides, “If a
court … sustains [an order imposing a penalty described in this
subsection], the court shall apply at least the minimum
penalties required under this subsection.” Id. § 820(a)(4). We
agree with the Commission that, given that language in
§ 820(a)(4), “[a] statutory scheme that permit[ted] the
Commission to assess any penalty, however minimal, but
require[d] a reviewing court to impose a penalty of at least
$5,000, [would] make[] no sense.” (App. at 14.)

        In sum, the Commission was bound by the mandatory
minimum set forth in 30 U.S.C. § 820(a)(2), and its conclusion
in that regard was not erroneous.

III.   CONCLUSION

      For the foregoing reasons, we will deny the petition for
review.




                              39
