January 1, 2008
It’s more important than ever to develop and train employees on emergency response procedures.
by Peter S. Gould
As I write, Congress contemplates H.R. 2768, the Supplementary Mine Improvement and New Emergency Response Act (S-MINER Act), an effort to build on the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), which became law on July 15, 2006. While the fate of the proposed S-MINER Act remains to be seen, the MINER Act is alive and well, and the Mine Safety and Health Administration (MSHA) is testing its limits on a daily basis. Perhaps the most relevant MINER Act provision to Aggregates Manager’s readership is its 15-minute “accident” notification requirements, as it implemented and expanded by MSHA in its amended regulations.
The passage of 1969 Federal Coal Mine Safety and Health Act ushered in the first Congressionally mandated accident reporting requirement. MSHA’s “immediate notification” regulatory requirement for a dozen defined “accidents” evolved from the Coal Act and now applies to all mines. MSHA amended Section 50.10 in an emergency temporary standard (ETS) in the months preceding the MINER Act’s passage, and in doing so, formalized a new 15-minute mandate that was later adopted by Congress in the MINER Act. Congress’s incorporation of that regulatory mandate into a statutory one was accompanied by a minimum $5,000, and maximum $60,000, penalty for failure to timely report to MSHA (within 15 minutes) those accidents “which result in 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.”
MSHA concluded its emergency rulemaking concerning several MINER Act provisions by issuing a final rule, which applied the 15-minute reporting mandate to all defined Part 50 “accidents” that previously required “immediate” reporting. It revised its definition of “accident” to include both an entrapment, which has a reasonable potential to cause death, and an unplanned underground fire that is not extinguished within 10 minutes. MSHA also implemented a 24-hour call system for the reporting accidents that occur any time of the day or week; Section 50.10 now states that the “operator shall immediately contact MSHA, at once without delay and within 15 minutes at the toll-free number, 800-746-1553, once the operator knows or should know that an accident has occurred.” The following is MSHA’s revised list of “accidents,” which requires reporting within 15 minutes and appears at 30 C.F.R. Section 50.2(h):
A death of an individual at a mine;
An injury to an individual at a mine which has a reasonable potential to cause death;
An entrapment of an individual for more than 30 minutes or which has a reasonable potential to cause death;
An unplanned inundation of a mine by a liquid or gas;
An unplanned ignition or explosion of gas or dust;
In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery;
An unplanned ignition or explosion of a blasting agent or an explosive;
An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage;
A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour;
An unstable condition at an impoundment, refuse pile, or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area; or, failure of an impoundment, refuse pile, or culm bank;
Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than 30 minutes; and
An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs.
MSHA appears to recognize the difficulties inherent in determining what constitutes “reasonable potential to cause death,” especially in cases where a decision must be made in a matter of minutes or where an all-hands rescue or recovery may be in progress. The agency suggests that experience and common medical knowledge point to concussions, cases requiring cardiopulmonary resuscitation (CPR), limb amputations, major upper body blunt force trauma, and cases of intermittent or extended unconsciousness, as among the type of injuries which have a reasonable potential to cause death.
Even with MSHA’s guidance, 15 minutes is often not enough time to analyze whether an event is a “defined” accident. The 15-minute rule improperly prioritizes accident reporting over emergency response. Despite its recognition that small mines may have difficulty complying with the 15-minute requirement because all personnel could be engaged in emergency response, MSHA refused to include in its final rule any exceptions for small mines. Nonetheless, MSHA will continue to vigorously enforce this provision at large- and mid-size mines.
It is, therefore, more critical than ever to have a plan in place establishing procedures for mine personnel, primary and alternates, to make an immediate report to MSHA in the event of an accident. Mine operators should also ensure their site personnel are trained and re-trained on the new accident reporting requirements and mandate and make it a company rule that the instant a member of management thinks an event might meet MSHA’s revised 15-minute reporting requirement, notify MSHA. On the other hand, if one believes MSHA has improperly cited the mine for allegedly violating Section 50.10, engage the agency in some thoughtful discussion, and seek counsel. Although MSHA is serious about aggressively enforcing the 15-minute notification requirement, it is our recent experience that having poorly written citations vacated remains a possibility.
Peter S. Gould is an associate at Patton Boggs LLP. He advises clients on administrative law matters and complex litigation, with a focus on environmental, heath, safety, and land use. Gould may be reached via phone at 303-894-6176 or via e-mail at firstname.lastname@example.org .