November 2003

Immediate Report Needed in Accidents

Commission reviews definition of an “accident” and says that MSHA must be notified within minutes.

By Adele Abrams, Esq., CSMP

The Federal Mine Safety and Health Review Commission decided to tackle the issue of what accidents must be immediately reported to MSHA under 30 CFR Part 50. In Cougar Coal Co., Inc. and Leslie B. Combs (FMSHRC, September 2003), the Commission reviewed, sua sponte, ALJ Weisberger’s decision to dismiss two citations after a serious accident that alleged the mine operator failed to immediately report the incident to MSHA as required by §50.10, and that the mine operator failed to preserve evidence for MSHA’s investigation, as mandated under §50.12.
The case involved an electrical accident in which a worker contacted an energized high line, received a shock of 7,200 volts, and fell approximately 18 ft., hitting his head on a power center. The miner was found unconscious and without a pulse, but was revived after CPR was administered and did recover. Before MSHA learned of the accident, during an inspection at a nearby facility, the operator cut the high line and moved both the power center and the truck the miner was driving without receiving permission from MSHA to do so.
In vacating the citations, the ALJ found that the Secretary failed to establish that an “accident” had occurred. Section 50.10 requires “immediate notification” if an accident, as defined in §50.2(h) occurs — criteria that includes, in part “a[n] injury to an individual at a mine which has a reasonable potential to cause death.” The Commission disagreed with the judge’s position that, because the miner was conscious and alert when management personnel arrived at the scene, they could reasonably surmise that his injuries were not life threatening. It noted that because a foreman performed the CPR, his knowledge of the gravity of the miner’s condition was imputed to the company. It also held that the fact that CPR was needed indicated that the injuries had a reasonable potential to cause death.
The Commission added that “an opinion of an inspector is sufficient, by itself, to establish that a hazard has a ‘reasonable likelihood’ of producing a ‘reasonable serious injury’” under the S&S analysis. It added that, if the ALJ’s construction of the standard were followed, it would frustrate the purpose of immediate reporting of near fatal accidents. The decision to call MSHA must be made in a matter of minutes, the FMSHRC concluded.
Because the Commission held that an immediately reportable accident had, in fact, occurred, the “preservation of evidence” requirements under 50.12 were also applicable, and both citations were reinstated. The case was remanded to the ALJ for the assessment of penalties. They directed the judge to consider whether there was any confusion in the Part 50 reporting requirements that might be a mitigating factor for penalty purposes.

Modification of citations at a moment’s notice
MSHA has long been recognized to have the authority to modify its citations, following their initial issuance, to cite a different standard, or to alter the text on the face of the citation. Recent citations indicate that mine operators and contractors face a heavy burden to demonstrate sufficient prejudice to block such amendments.
In Austin Powder Company (ALJ Bulluck, September 2003), MSHA had alleged an S&S violation of 30 CFR §56.6900, which requires that “damaged or deteriorated explosive material shall be disposed of in a safe manner in accordance with the instructions of the manufacturer.” The citation was issued in August 2002 and was conferenced shortly thereafter, at which time the contractor argued that the cited material was not an explosive product.
MSHA pursued the citation and, a week before trial was scheduled, filed a motion to amend the citation to change the description and to cite a different standard, 30 CFR §56.4104(b). The newly cited standard applies to “waste or rags containing flammable or combustible liquids that could create a fire hazard” and requires such materials to be placed in covered metal containers or other containers with flame containment characteristics. The product at issue was Hydrox 503 (ammonium nitrate solution in emulsified form).
Austin Powder disputed the new allegations and also challenged the amendment as prejudicial and untimely, noting that MSHA was now accepting an argument that was raised months earlier. It maintained that there was not adequate time to respond to the new citation’s assertions. The Secretary argued that there was no need to postpone the hearing.
The ALJ permitted the amendment, stating that the change did not alter the underlying facts (which claimed that a product was improperly stored) and that the Secretary was not acting in bad faith nor seeking to delay the proceedings. ALJ Bulluck added that the company could still raise its arguments concerning the nature of the product at a merits hearing. The case did have a happy ending in that the ALJ did postpone the trial, and MSHA subsequently vacated the citation prior to a hearing.
In the second recent case, Independence Coal Co., Inc., Bill Burgette and Greg Neil (ALJ Melick, September 2003), MSHA was permitted to stop a trial mid-stream and amend Section 104(d) Citation and Orders “to provide a more particular description of the charges, including a specification of the dates and times of the alleged violations.”
The judge likened MSHA’s request to amendment of pleadings under Fed.R.Civ.P. 15(a), which permits liberal amendment of pleadings unless the moving party is guilty of bad faith, has acted for the purpose of delay, or where the trial of the issue will be unduly delayed. Under this rule, legal recognizable prejudice to the operator would bar an otherwise permissible modification of citations.
The respondents argued that they would be prejudiced because the proposed amendment interjected a new issue into the case, and that the new allegations would delay proceedings because of the need to reopen depositions and recall at least one witness. It did not, however, assert that MSHA acted in bad faith or sought amendment for the purpose of delay.
ALJ Melick found that the original charging documents lacked particularity and the specific allegations now being asserted by MSHA were neither included or excluded in the original citation/orders. Although that might have been grounds for a motion to dismiss, the operator had not filed such a motion. He added that, through discovery, the operator could have determined that the Secretary had included within the scope of the original Order a violation of the on-shift examination standard after the roof fall (the newly added allegation). ALJ Melick found that there was no legal prejudice to the respondents and that the amendments would better enable the respondents to defend the charges and allow the trial judge to ascertain what charges had been brought in the case.

Don’t delay in challenging temporary reinstatement
ALJ Schroeder recently granted a miner temporary reinstatement as a truck driver pending litigation of his discrimination claims under Section 105(c) of the Mine Act. In Robert C. Gould, Jr. v. Gulf Transport LLC (ALJ Schroeder, September 2003), MSHA filed an application for temporary reinstatement of the miner who was terminated after participating in an MSHA investigation.
Under the applicable procedural rules, the mine operator has 10 days from receipt of the Secretary’s application to request a hearing. In this case, the mine operator’s request was due on Sept. 15, 2003. On Sept. 17, 2003, the ALJ received an e-mail from the company’s chief executive, requesting a hearing. The operator claimed that he only recently understood the procedures and that his distance from the scene (the executive spends most of his time in Australia) made it difficult to make a timely request for hearing.
The judge rejected these excuses. He noted that any person or organization in the U.S. mining business is held responsible for knowing the protections under Section 105 of the Mine Act. Moreover, the judge himself had telephoned the mine’s office on Sept. 5 to verify service of the application and spoke with the local manager and offered to answer procedural questions. The manager said he would contact the officer in Australia. Therefore, the ALJ concluded that the company had knowledge of the opportunity for a hearing well before the deadline. He added that the availability of electronic transmission of information further undercuts the “distance” argument.
With respect to the merits of the application, the ALJ found that the miner was terminated within days after engaging in conversations with MSHA representatives concerning the accident. The close proximity in time provided a sufficient basis to imply a connection and support a finding that the complaint was “not frivolous.” Temporary reinstatement was granted.

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.