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Common Sense Discarded In Citation Over Fatality

By James Sharpe

An adult conversation about the Mine Safety and Health Administration’s 15-minute reporting rule is necessary after the agency slapped a Delaware aggregate operator with a $5,000 fine for failing to timely report a medical emergency.

The operations manager at Pennsy Supply’s Tarburton Pit was in his car 75 minutes away from the Tarburton Pit when he got a call from a plant employee, who told him about a medical incident involving a customer truck driver. Thinking the incident was not reportable, he drove to the mine and called it in after he arrived. MSHA got his call one hour and 57 minutes after the event had occurred.

Once upon a time, Part 50.10 required operators to contact MSHA “immediately” once an “accident,” as defined in the standard, had taken place. The Sago Mine disaster on Jan. 2, 2006, changed all that. The explosion occurred in the early morning hours of a national holiday. It took the operator about two hours to make direct contact with an MSHA employee, and rescue crews did not start arriving for another three hours.

Twelve surviving miners had barricaded themselves in to await rescue, so because of the bad air, time was of the essence. When rescue crews reached the men some 41 hours later, all but one had perished. It was believed more would have survived had rescuers gotten to them sooner.

An emergency mine evacuation rule promulgated in December of that year for the first time defined “immediately” as “at once without delay and within 15 minutes.” Fines ranging from $5,000 to $60,000 could thereafter be specially assessed for failure to timely report accidents involving the death of an individual at a mine or an injury or entrapment carrying a reasonable potential to cause death.

The Oct. 8, 2010, incident at Tarburton was clearly a case where, under the standard, notification was required. The driver was found around 12:40 p.m. unresponsive and not breathing in his truck at the weigh scale by his brother, who was waiting in line behind him. CPR was administered until emergency personnel arrived. The man died at a hospital about two hours later.

Pennsy was cited under 50.10(b) because the inspector determined the incident had the potential to cause death. The rule allows no exceptions. The incident would have been reportable even if the driver had not died. Administration of CPR is mentioned in the rule’s preamble as an example of when to report, and case law has upheld this interpretation.

It took an inspector about three hours to arrive after the agency was notified. By that time, 5:30 p.m., the mine was closed and only the operations manager remained. The inspector went to the hospital, talked to the police, visited the 911 dispatch office and EMS unit, and obtained a death certificate, although court documents don’t say when he did all this. He wrote the citation four days later.

Pennsy’s position was that the citation was unwarranted. It argued that MSHA, by pursuing the case, was not demonstrating common sense. In the judge’s words, Pennsy believed that MSHA’s “proposed application of the standard is illogical and contrary to the prioritization of the health and safety of miners.”

The judge affirmed the citation but cut the fine to $1,500 because he didn’t buy the high negligence classification the inspector had assigned to it.

The logic behind immediate reporting is contained in the preamble to the 2006 final rule, where MSHA wrote, “Timely reporting can be crucial in emergency, life-threatening situations to activate effective emergency response and rescue. Not only can this be vital to the saving of lives, but it can be instrumental to having expert Agency personnel at the scene with authority to assure that the accident site remains undisturbed and preserved for investigation into causes.”

This is a sensible rationale for the notification requirement. The trouble is, it didn’t apply at Tarburton. This was a non-occupational episode that put no one else at risk. Emergency personnel were alerted at once by the operator. There was no need to preserve the accident scene because, as a fatality not chargeable to the mining industry, there was no need to investigate it. Under these circumstances, a ticket should not have been written.

Regardless, the inspector ‒ a supervisor at that, with nearly a decade under his belt at the agency ‒ felt he had no discretion and so went strictly by the book. It’s time for practical heads to get together and redo this part of the text.