Adele Abrams

A pair of recent decisions show how complex it can be to analyze whether an incident is immediately reportable, and whether the $5,000 mandatory minimum penalty has any latitude for lower penalties in light of mitigating circumstances.

Under the MINER Act of 2006, enacted after the Sago mine disaster, Congress changed what had been a flexible definition of “immediately reportable” under 30 CFR 50.10 (at the time, generally interpreted by the courts as within two to three hours) and instead put in place a hard and fast rule that any fatality or injury with a reasonable potential to cause death triggered the obligation to notify the Mine Safety and Health Administration (MSHA) within 15 minutes.

 In addition, the other types of incidents defined in 30 CFR 50.2(h) as an “accident” (such as hoist outages, or fires that could not be extinguished within 30 minutes) also had to be reported within this time frame, but only failures to quickly report fatalities and serious injuries were punishable by the $5,000 fine. However, in imposing this burden on mine operators, Congress and MSHA both neglected to define the term “injury of an individual at the mine which has a reasonable potential to cause death.”

As a result, mass confusion ensued!

With respect to the mandatory minimum penalty, an Administrative Law Judge took on the issue in the case of 7/11 Materials Inc. (ALJ Manning, June 2012). In that litigation, a miner fell and hit his head, which resulted in a concussion and bleeding. The mine operator testified that it did not believe the injury was life threatening, but nevertheless did report the situation to MSHA within 15 minutes after it learned from the hospital that it was indeed serious.

The judge did not have to adjudicate the matter because a settlement was presented to him by the parties. He noted that Section 103(j) of the Act requires the 15 minute notification in such situations, stating that operators must make the notification “within 15 minutes of the time at which the operator realizes that … an injury … of an individual at the mine which has a reasonable potential to cause death, has occurred.” In settling, the Secretary of Labor had agreed to reduce the negligence level to “low” (most of these are initially issued as “high negligence,” in my experience), based on the fact that the company called 911 immediately after the injury occurred and reported the injury to MSHA within 15 minutes of learning from medical personnel that it was potentially serious. The parties agreed to settle because of genuine issues of material fact, including whether the operator in fact called MSHA only out of an “abundance of caution” even though it did not view the injury as life threatening.

ALJ Manning examined the provisions of the Act – which call for a range of penalties from $5,000 to $60,000 if there is a violation of the reporting requirement — and concluded that, while MSHA had the power to propose penalties (in this case, $5,000) the Commission still had the power to make a de novo assessment based upon the six statutory criteria in the Act, and determine the appropriate penalty on its own. The judges are not, therefore, bound by what MSHA proposes and can lower or raise the penalties on their own volition. The judge found that the language in the Act imposing a mandatory minimum penalty for infractions was binding only on the Secretary of Labor, not on the Commission or its administrative law judges.

Therefore, the judge concluded that he could assess a penalty for a violation of 50.10 that is less than $5,000 in appropriate circumstances (which at least one other judge did in 2011 decision that my firm handled, E.S. Stone & Structure Inc, where ALJ Augustine reduced MSHA’s proposed $5,000 penalty for a 50.10 violation to $2,000, but without discussing the statutory implications). In this most recent case, ALJ Manning reduced the penalty to $750, noting that the violation was not significant and substantial, and the company had only four employees and worked only 9,000 manhours in the previous year. The lesson: don’t simply assume that you must always pay the statutory minimum penalty even if there are considerable mitigating circumstances because at least some ALJs will listen!

The other noteworthy case involving litigation of 50.10 involved Cemex Construction Materials of Florida (ALJ McCarthy, June 2012). At issue was a citation (with a $5,000 proposed penalty) issued 13 months after an incident occurred at the mine where a contractor’s employee received an electrical shock that “could have resulted in a fatal injury,” according to MSHA. The late citation was due to MSHA learning of this through an anonymous Code-A-Phone complaint that claimed the operator had understated the seriousness of the injury when it filed its 7000-1 report.

A full evidentiary hearing was held and the ALJ vacated the citation, finding that no immediately reportable accident occurred because the worker’s injuries from electric shock did not have a reasonable potential to cause death under the totality of facts and circumstances present.

The injury occurred while the contractor was lying on his stomach on a metal surface and touched wires, receiving an electric shock that caused his muscles to tense up. The worker testified at trial that he thought he was having a heart attack after the shock occurred, and his left shoulder was dislocated by the shock’s effects. A co-worker immediately popped the arm back into position, but it popped out again and he started screaming, and was taken to the hospital and was in and out of consciousness. However, the ALJ found that the injured worker was not credible and that his testimony appeared rehearsed in an effort to establish a loss of consciousness and augment the intensity of his injury. More telling, the ALJ said, were the contemporaneous medical records, which failed to establish any loss of consciousness or life threatening injury.

When mine personnel testified, they were asked about how to determine when an injury had a reasonable potential to cause death and examples were given, such as “if they’re unconscious, delirious, bleeding, broken bones.” The company safety manager added that determining if an incident could be immediately reportable was a case-by-case determination and that a dislocated shoulder, coupled with a loss of consciousness of a minute or less was not such an injury. The company did not have a doctor on premises, who might otherwise have assisted in making such a determination, and MSHA did not have any specific guidance on the reportability of these types of electrical injuries.