The Administrative Law Judge agreed with the company, holding that, based on the nature of the injuries, there was no reasonable potential to cause death. He went on to find that the risk of surgery was insufficient to raise the severity of the accident to such a level as to require that it be reported.

The conclusion of the decision is most encouraging. At the end of the decision, the Judge made clear what he thought of MSHA’s argument, stating:

“I am somewhat surprised that the Secretary pressed this case. If the subject Part 50 regulations were interpreted in the manner suggested by the Secretary, MSHA would receive many more calls from mine operators reporting all kinds of “accidents” that are presently not immediately reportable. Virtually every serious injury would have to be immediately reported because the operator would have to call MSHA before it could determine whether the injury had a reasonable potential to cause death. Most of these “accidents” would probably not require an immediate investigation by MSHA, but the agency would have to spend precious resources making this determination and, in many cases, MSHA would immediately send an inspector out to conduct an investigation. The MSHA inspection force is stretched pretty thin as it is, and the opportunity cost of immediately investigating these types of “accidents” could be significant.

“If the Secretary would like injuries similar to the injury sustained by Little to be immediately reported, she should consider modifying her regulations. It appears that the Secretary believes that a mine operator should immediately report any serious injury, at least if off-site medical care or hospitalization is required. As stated by the Commission in Cougar Coal, “it would benefit the mining community if the Secretary would clarify when it is urgent to notify MSHA, when it is not, and what reports are required.”

The import of this case goes far beyond the interpretation of the reporting regulations. It can be instructive as to the general issue of what “reasonably likely” means in the context of S&S determinations as well. From the looks of it, the judges may be getting as frustrated with the ever more far-fetched scenarios conjured up by MSHA in support of their ever broader interpretations. Operators should follow up on this victory and use it in as many contexts as possible. Good luck.

The decision is Newmont USA Limited v. Secretary of Labor, Mine Safety and Health Administration _ FMSHRC _ (April 21, 2010, ALJ Manning). AM

Mark Savit is a partner at Patton Boggs LLP. He counsels and represents clients on natural resources law and regulations matters, with emphasis on mine safety and health law, protected species law, public lands law, and more. Savit may be reached via phone at 303-894-6177 or via e-mail at msavit@pattonboggs.com.