Rock Law

| Published on August 1, 2010

Might doesn’t make right

A recent case underscores how far the Secretary of Labor will go to expand her regulatory reach.

By Mark Savit


I try not to write about “purely legal” topics, but a recent decision could have an effect on everybody — even though, at first blush, it may not seem like it. The story is about nothing more (or less) than a broken leg.

It seems every time I talk to a client about their latest citation, the story involves the Mine Safety and Health Administration (MSHA) taking a more expansive view of the regulation itself, or, if not the regulation, whether the alleged citation was significant and substantial (S&S). As we all know by now, the test for S&S was set out in a decision issued in 1981 (Cement Division, National Gypsum Co. 3 FMSHRC 822). That case, and the cases that followed and explained it, essentially held that a violation is S&S if it meets a two-part test: First, the violation must be reasonably likely to result in an accident; and second, that accident must be reasonably expected to result in a serious injury. Despite that well-established and long-standing test, I hear more and more stories about how MSHA came up with a very convoluted and improbable set of events that could lead to an accident and an explanation that, while the accident really wasn’t reasonably expected to result in a serious injury, a person “could die.”

A similar standard of “reasonable likelihood” is found in the accident reporting regulations. Section 50.2(h)(2) requires the immediate reporting of any accident at a mine that has the “reasonable potential” to cause death. Okay, so what does that have to do with S&S? Let me explain.

In 2007, a miner named Andrew Little was walking between an underground haul truck and the rib when the haul truck began to move. The haul truck ran over his right foot and his mine belt was caught by the truck. As a result, Little suffered a fractured femur. EMTs responded quickly to the accident, and Little was transported out of the mine and “life flighted” to a nearby hospital, where surgery was performed. Little was released in about four days. Interestingly, at the start of the next shift, an inspector appeared at the mine to conduct a regular quarterly inspection. Mine personnel told the inspector about the accident and explained that they did not report it because it did not have a “reasonable potential to cause death.” That inspector took no enforcement action regarding the failure to report.

Four days later, a different inspector came to the mine and, after an investigation, issued a citation for failure to report the accident immediately, alleging that it had a “reasonable potential to cause death.” Attempts to settle the matter were unsuccessful, and the case was eventually tried on cross motions for summary decision.

At trial, the Secretary of Labor made several arguments, first arguing that the totality of the circumstances of the accident, in addition to the actual nature of the injuries, must be reviewed when making a decision to report. In this case, the Secretary argued, everyone at the mine thought the miner had been “run over by a haul truck” which, she argued, had a reasonable potential to cause death regardless of the actual injuries incurred. Second, she argued that, since the injury required surgery and complications — such as fat embolisms and deep vein thrombosis — could result from the surgery, the surgery itself presented a potential to cause death, although the Secretary did concede the potential was minimal.

The company responded that the risks resulting from surgery alone cannot be enough to trigger the reporting requirement. If surgery presented a reasonable potential to cause death, the company asked, who in his or her right mind would opt for surgery to fix something like a broken leg? The company went on to argue that the Secretary’s interpretation would require all accidents resulting in surgery to be reported immediately, a scenario not required by the regulation. Finally, the company argued that, while the circumstances of the accident might have a bearing on whether to report, the fact that the victim was examined immediately, had good vital signs, was awake and alert, and was able to tell the EMT he had a broken leg, made the circumstances of this accident irrelevant.

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.

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