By Ellen Smith
Operators must contact MSHA within 15 minutes for any reason that cardiopulmonary resuscitation is performed on a mine employee, Commission ALJ Thomas McCarthy has ruled.
The case stemmed from a fatal heart attack at Standard Sand and Silica Co.’s Lake Wales Dry Plant in Davenport, Fla.
In May 2010, a 51-year-old laborer, who had worked at the company for 19 years, was operating a bagging machine, while two other miners stacked the filled bags onto pallets. Tanker trucks arrived at the plant, and the other two workers left the miner alone. When they returned, they found him on the ground. One of the men performed CPR, while another called 911, and then called the plant manager. The plant manager arrived while emergency medical technicians were trying to revive the miner, but after unsuccessful attempts he was pronounced dead at 6:06 a.m. The safety director called MSHA at 7:12 a.m. to report the worker’s death.
When MSHA arrived at the plant, the inspector issued a citation under 30 CFR § 50.10(b) for failing to report to MSHA, within 15 minutes, an injury that has a reasonable potential to cause death. The citation was non-S&S, but MSHA rated the negligence as “high,” and assessed a $5,000 penalty as required under the MINER Act.
A later autopsy found that the miner suffered from heart disease, and that his death was “natural.”
The company argued that it did not violate the 15-minute reporting standard because the miner’s heart attack was not an injury, rather the result of a non-occupational illness from natural causes and not any work-related act. Since there was no “accident,” no immediate reporting was required.
The Secretary argued that Standard Sand did not alert MSHA until at least an hour and 32 minutes had lapsed – 77 minutes past the deadline prescribed in the regulation, and the proposed minimum penalty of $5,000 required by Congress should be upheld.
ALJ McCarthy agreed with MSHA that the company “knew or should have known that it experienced a reportable accident arguably at about 5 a.m.,” 15 minutes after CPR was initiated. More definitively, the company should have known that it should have called 15 minutes after the ambulance arrived and EMTs took over CPR functions.
McCarthy did not agree the violation was due to high negligence. The company “quickly implemented and exhausted life-saving efforts, contacted 911 and the plant manager conducted a prompt assessment at the scene and contacted MSHA reasonably promptly, although not immediately after learning of the death.” Given these circumstances, McCarthy said the operator’s negligence should be “moderate,” not “high.”
Although there was not a likelihood that the violation would cause an injury or illness, and the company demonstrated a good faith effort in achieving rapid compliance, the $5,000 penalty was still affirmed. McCarthy said the penalty would not affect Standard Sand’s ability to stay in business.
A similar decision was issued by ALJ Patrick Augustine in January 2011, requiring immediate reporting, where a company took 47 minutes to call MSHA after a worker experienced a fatal heart-attack. (33 FMSHRC 515).
Standard Sand and Silica, 12/19/2011, Docket No. SE 2011-242-M.
30 CFR § 50.10:
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 involving:
(a) A death of an individual at the mine;
(b) An injury of an individual at the mine which has a reasonable potential to cause death;
(c) An entrapment of an individual at the mine which has a reasonable potential to cause death; or
(d) Any other accident.