October 24, 2017
The Mine Safety and Health Administration (MSHA) requires under Part 50 that mine operators immediately notify MSHA once an operator knows or should know that an accident has occurred. 30 C.F.R. § 50.10. The regulations list categories of accidents that operators must report, including entrapments that last for longer than 30 minutes or may reasonably cause death. 30 C.F.R. §§ 50.10(c), 50.2(h)(3). For entrapments, there are three elements under § 50.10 that a mine operator must evaluate in determining whether to report: 1) is the miner entrapped; 2) does the entrapment last for more than 30 minutes; and 3) might the entrapment have a reasonable potential to cause death?
As mine operators know, the terms used in MSHA’s regulations often can be vague or ambiguous. Part 50 is no different. The Federal Mine Safety and Health Review Commission (Commission) has considered the meaning of “immediate” under Part 50 and provided interpretative guidance for the industry. The Commission concluded that Part 50 allows a mine operator the opportunity to investigate an event to determine if it is reportable. Consolidation Coal Co., 11 FMSHRC 1935, 1938 (October 1989). The decision regarding whether an operator reported in a timely fashion is made on a case-by-case basis and takes into consideration the nature of the accident and a number of variables that affect reaction and reporting. Id. Once a good faith investigation reveals to the operator that an accident occurred, the operator must report that accident immediately (i.e., within 15 minutes). Wolf Run Mining Co., 35 FMSHRC 3512 (December 2013).
For purpose of deciding whether an entrapment has existed long enough to trigger the reporting requirement, case law discussing the reporting of unplanned fires under Part 50 is helpful. According to the Commission, a fire (and, similarly, an entrapment) ends upon the complete cessation of the condition. Phelps Dodge Tyrone, 30 FMSHRC 646, 656 (August 2008). A fire that continues to produce smoke remains a fire, and intermittent flames that recur are not separate fires. For entrapment, an elevator that momentarily moves without the occupants being freed does not end the entrapment and restart the 30-minute period.
The Commission has also considered how operators should determine whether an accident “may reasonably cause death” for the purposes of immediate reporting. Any reasonable doubt as to whether an operator should report an accident should be resolved in favor of notification. Signal Peak Energy, LLC, 37 FMSHRC 470 (March 2015). Operators should not delay reporting to perform technical or medical evaluations. Cougar Coal Co., 25 FMSHRC 513, 521 (September 2003); Donovan on behalf of Anderson v. Stafford Constr. Co., 732 F.2d 954, 959 (D.C. Cir. 1984). An accident involving either an injury or entrapment should be reported if the circumstances are of a nature or type that could reasonably cause death. For example, miners trapped in areas with exposure to airborne contaminants or a limited air supply are likely to trigger the immediate reporting requirement.
Despite examining numerous terms from Part 50, the Commission has given no guidance on what constitutes an entrapment. The dictionary definition of entrapment is “the condition of being entrapped” or caught “as if in a trap.” Merriam-Webster.com. 2017. https://www.merriam-webster.com (17 August 2017). “Trap” means “something by which one is caught or stopped unawares” or “a position or situation from which it is difficult or impossible to escape.” Merriam-Webster.com. 2017. https://www.merriam-webster.com (17 August 2017). It is clear that a miner is entrapped when that miner is unable to exit an enclosure, machine, or other area. When an area is possible but difficult to exit, it is less clear whether an entrapment exists.
One administrative law judge (ALJ) considered whether entrapment existed where a miner could exit an area, albeit unsafely. In J.S. Redpath, the ALJ analyzed whether a piece of mining equipment stopped in a 1,600-foot raise was “entrapment.” J.S. Redpath Corp., 30 FMSHRC 12, 24-26 (January 2008) (ALJ) (Barbour). Compressed-air powered climbers moved up and down the raise with one or two miners inside. The conduit supplying compressed air to a climber broke when the climber was some distance up the raise. Id. at 24. Without compressed air, the primary braking system could not function. Id. While the miners in the climber could use foot and hand brakes to affect a controlled descent of the climber, they chose not to move the climber. Id. at 25. As a result, the miners remained in the climber approximately 1,400 feet above the ground for more than 30 minutes. The ALJ examined whether the means to descend and exit the climber meant that no entrapment existed.
According to the ALJ, an alternate means of escape does not necessarily preclude an entrapment. The two miners remained 1,400 feet above the ground because they were concerned that hand and foot brakes may not provide a safe means to stop the climber. Id. at 25. Where escape is more dangerous than remaining in an area, an entrapment exists if miners remain for more than 30 minutes. Id. at 24.
J.S. Redpath is a reasonable interpretation of § 50.10. When a reasonable doubt exists, operators should err on the side of reporting. The definition of entrapment allows for the existence of possible, yet difficult, escape. However, if it is safer to remain in an area than to move, then it is reasonable the miner should not move. Thus, operators should report an entrapment to MSHA even when a means of escape exists if that escape poses a hazard to miner safety.
An operator must evaluate each specific situation and decide whether the miner would be safer staying confined than escaping an area. If escaping an area exposes the miner to additional danger, that miner is entrapped. Operators should report that situation to MSHA if the miner remains in that state for more than 30 minutes. Identifying specific hazards is key to deciding whether to report an entrapment. Remember: miner safety is always the most important consideration.
Benjamin J. Ross is an associate in Jackson Kelly PLLC’s Denver office, where he practices in the Occupational Safety and Health and Litigation Practice Groups. He can be reached at 303-390-0026 or firstname.lastname@example.org
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