Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/883641
28 AGGREGATES MANAGER / October 2017 Look to Commission decisions for guidance on the definition of "entrapment" for reporting purposes, but err to the side of safety. 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 bross@ jacksonkelly.com. Part 50: A Primer on Reporting Requirements T he Mine Safety and Health Administra- tion (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 regu- lations 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 entrap- ments, 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 minu- tes; and 3) might the entrapment have a reasonab- le potential to cause death? As mine operators know, the terms used in MSHA's regulations often can be vague or ambi- guous. Part 50 is no different. The Federal Mine Safety and Health Review Commission (Commis- sion) 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 variab- les 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 ent- rapment) 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 occu- pants 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 invol- ving either an injury or entrapment should be ROCKLAW by Benjamin J. Ross