June 2003
Beware the Boomerang
MSHA represents only one of the many levels of liability following an accident or fatality.
By Hugh Thatcher
Trinity Materials, a sand and gravel operator in Texas, received a dubious honor in March of this year: A $163.8 million jury verdict against it, described by the National Law Journal as “what may be the largest wrongful death award for a single death in Texas.” The catch? The individual who died was not an employee of Trinity, but that of an independent contractor that Trinity hired to come on-site to help with overflow mechanical work.
According to MSHA’s fatality report, on Feb. 17, 1999, Brad Johnson, an employee of RDO Equipment Co., went to Trinity’s Waco Pit to repair the brakes on a 1975 Euclid B-30 trailer. Johnson had difficulty removing the left rear tire/rim assembly from the wheel — despite his efforts to dislodge the tire/rim by tugging at it with a forklift, the tire/rim was stuck. After some time, Johnson began to use an acetylene torch to heat the rim in an effort to facilitate the removal of the tire/rim. After 45 minutes to an hour, the tire exploded, rendering Johnson unconscious. Johnson died from his injuries on March 1, 1999.
The fatality report notes that MSHA issued two citations for the accident — one to RDO and one to Trinity. Both citations were 104(a) citations for violations of 30 C.F.R. §56.4500, which provides that “heat sources capable of producing combustion shall be separated from combustible materials if a fire hazard could be created.” Although there is no record in the MSHA data retrieval system (DRS) for the citation that was issued to Trinity, the DRS shows that the citation issued to RDO was assessed at $35,000, and that $35,000 was paid.
Got your attention? There are many lessons in this story for an operator — not the least of which is the importance of using an independent contractor compliance program. The key, however, is understanding that an accident, fatal or not, may result in multiple levels of liability. The MSHA investigation that follows an accident is immediate, obvious, and relatively limited in its scope. It’s easy for an operator to become complacent, to think that workers’ compensation and the MSHA investigation will be the total extent of the liability from an accident, and, if the MSHA investigators see limited MSHA liability, to assume that the company’s exposure is minimal. As demonstrated by Johnson v. Trinity Materials, however, this is not the case.
So what should you do? First, if you have a fatal accident, or an accident in which someone is seriously injured, remember that there is more at stake than the company’s liability for an MSHA citation. This starts with your management employees. Under Section 110(c) of the Mine Safety and Health Act of 1977, an agent of the company can be prosecuted individually for criminal and civil penalties for a knowing violation or a knowing authorization of a violation of a health or safety standard. The MSHA inspectors investigating the accident may tell you that they are not “out to get anybody” and that they are not interested in determining if anyone should be held individually liable. This is probably true — because it’s not their job. Determining the potential for individual liability is the responsibility of the district office, and, if the district so desires, a special investigator — who does have the job of investigating individual liability — will begin a 110(c) investigation that is completely separate from the accident investigation.
Next, remember that MSHA standards may be used as evidence of standards of care in a civil lawsuit. In Johnson v. Trinity Materials, the plaintiffs argued that Trinity should have trained Johnson and informed him that MSHA had warned operators never to apply heat to a tire. Thus, although an operator may perceive minimal MSHA liability arising from an accident, it may be worth the time and effort to challenge MSHA’s assertion that a particular standard was violated, or that a particular standard applies to the facts surrounding the accident.
In this respect, the completion of worker’s compensation paperwork for the injured or deceased miner must be careful to describe the facts surrounding the accident in such a manner that does not compromise the company’s position. Moreover, if you are unfortunate enough to have a catastrophic event that results in significant property damage to your operation, you will be dealing with downstream business disruption, rebuild responsibility, and insurance coverage. Many of these issues will turn on who bears responsibility for the accident, and thus contesting the applicability of MSHA standards may again have significance outside of the MSHA enforcement scheme.
In addition to reviewing the company’s potential liability, don’t forget to look at claims that the company may have against third parties. Was the miner injured or killed by a piece of equipment? Is there a possibility that the equipment was defective? Was there a condition with respect to the equipment of which the manufacturer failed to warn you? These issues must be considered early in the process because evidence must be preserved if a product liability claim is to be asserted later.
Making sure that you engage “big picture” thinking as soon as possible after an accident is the key to successfully coordinating the company’s defenses and claims much further down the line. Because the company may be involved in litigation or other legal proceedings on multiple fronts, decision makers in the immediate aftermath of an accident must step back from the MSHA investigation and remember that much more is at stake. Maybe $163.8 million.
Hugh Thatcher is an associate in the Denver office of Patton Boggs LLP.
Higman Sand and Gravel Gets a ‘Brake’
ALJ throws out two of three producer citations related to brake defects on a haul truck.
By Adele Abrams, Esq., CSMP
In an April 15, 2003, decision, ALJ Zielinski tossed out two of three citations/orders issued to Higman Sand & Gravel related to brake defects on a haul truck, and reduced total penalties from $1,800 to $350. Inspector Christopher Willet conducted an inspection of the Iowa mine while accompanied by the mine’s mechanic. After flagging down a Euclid truck, the inspector determined that its service brakes and parking brake were defective and issued citations/imminent danger orders under 30 CFR §§ 56.14101(a)(1) and 56.14101(a)(2), which prohibited further use of the truck until repairs were made. The inspector added a third citation, for failure to perform a “proper pre-shift operational check” as required by 30 CFR § 56.14100(a), based on his findings concerning the vehicle’s brakes. That citation was written as high negligence.
After taking testimony, the ALJ concluded that while the service brakes were not functional, the inspector’s testimony that the vehicle operator admitted prior knowledge of the defect was not supported. He determined that negligence was “low” and that the citation was both “significant and substantial” and presented an imminent danger (although he disagreed with the inspector’s “highly likely” finding with respect to the probability of injury). An imminent danger order need not be based upon violation of a mandatory standard or a condition that poses an immediate danger. Judge Zielinski wrote: “[I]t is sufficient that the condition could reasonably be expected to cause serious physical harm if normal mining operations were permitted to proceed before the dangerous condition is eliminated.” See Cyprus Empire Corp. (Commission 1990).
The parking brake citation/order was vacated, however, after the ALJ found that the maximum grade traveled by the truck was a 4-in. elevation in 100 ft., and the truck had significant rolling friction. When testing the vehicle, the driver “throttled” the truck and caused the engine to override the parking brake. Although the parking brake adjustment was not set at high tension, the Secretary failed to prove that it was not capable of holding the truck on the flat ground over which it traveled. Judge Zielinski also vacated the preshift inspection citation, finding credible testimony that the vehicle had been inspected that morning, air and oil levels adjusted, and that the operator was unaware of any brake problems.
The ALJ also denied the Secretary’s motion to amend the citation, made three days before the hearing, where MSHA sought to allege that the mine operator failed to timely correct defects, as mandated by 30 CFR § 56.14100(b). The judge found merit in Higman’s claims of prejudice in having to defend against newly disclosed facts and potential duplication in alleged violations. Under Fed.R.Civ.P. 15(a), motions to amend pleadings in FMSHRC proceedings are freely granted unless the moving party is guilty of bad faith, acts for purposes of delay, or the result is prejudicial to the opposing party. He noted that the timeliness of MSHA’s motion was also a concern.
Permanent injunction affirmed against operator
The U.S. Court of Appeals, Third Circuit, affirmed issuance of a permanent injunction to prevent the owners of a Pennsylvania mine from interfering with MSHA inspections. On May 2, 2003, in Chao v. Rothermel, the court held that the agency was authorized to conduct respirable dust inspections to protect miners, and its powers were not limited to situations where the operator was “out of compliance.” Any other interpretation would leave MSHA “at the mercy of the mine operator’s own dust sampling, without any independent means of verifying the mine operator’s reporting.”
The Third Circuit also rejected the operator’s assertion that an MSHA procedural handbook was invalid because it did not go through “notice and comment” rulemaking under the Administrative Procedure Act. Such guidelines are “interpretative” and do not impact mine operators, but only describe uniform procedures for mine inspections.
Special Investigations under scrutiny?
In May 2003, MSHA announced reorganization of portions of its Special Investigations unit. The headquarters’ functions, previously split into coal and metal/nonmetal sections, were to be merged into a single office, under the MSHA Office of Assessments. The agency announced a series of four public stakeholder meetings to obtain input on the newly titled “Technical Compliance and Investigations Office.” The meetings were to have included presentation on the new structure, explanation of the office’s functions, and an opportunity for attendees to present their views. However, days before the initial May 13 hearing, MSHA abruptly “postponed” all hearings until further notice. No reason was given for the cancellation of the stakeholder sessions. Carolyn James, chief of the new office, was the designated point-person and her number is 202-693-9564.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.