By Ellen Smith
The U.S. Court of Appeals for the 10th Circuit has upheld guarding and reporting violations issued by MSHA to Mainline Rock and Ballast Inc., a quarry located in Torrance County, N.M.
The case stems from a miner who was pulled into a conveyor by an unguarded return roller as he was shoveling material from under the belt. His head and torso had passed through a 7-in. space. Another miner called 911, while a second miner used a torch to cut the roller from the conveyor and free the trapped man. The mine superintendent arrived on the scene, stayed for “seconds,” then went to the office to call corporate counsel. According to the court record, at no point did the superintendent make any inquiries about the injured miner’s condition, nor did the supervisor report the accident to MSHA until after the injured miner was airlifted to a hospital.
The injured miner sustained severe internal injuries requiring a tracheotomy and surgery to his pelvis, pancreas, hip and spleen. His kidneys were permanently damaged, and he also broke his arm, his collarbone, and all of his ribs.
The company argued in part that it could not be held accountable for the miner’s intentional conduct by going beneath the conveyor and attempting to dislodge a rock. The court declined to adopt such an interpretation that “would defeat the safety promoting purposes of the regulation” §56.14107(a).
Guarding requirements for both coal and metal/nonmetal mines must take into consideration the reasonable possibility of contact injury, including contacts stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness, the court said.
Mainline Rock also tried to argue the standard did not apply because a return roller is not specifically mentioned in the regulation, and therefore the company did not have “adequate notice” of the standard. However, the court said the regulation also applies to “similar moving parts,” and return rollers are precisely the type of hazardous moving machine part covered by the standard.
While MSHA inspectors had never previously cited the company for failing to guard this return roller, and even if Mainline Rock had been told by MSHA it did not need to guard the rollers, it would not be absolved of its duty to do so. “Those who deal with the government are expected to know the law and may not rely on the conduct of government agents contrary to law.”
More importantly, however, the regulations provided adequate notice of the regulated conduct and satisfied the due process requirements. A reasonably prudent person familiar with the conditions that the regulations are meant to address, and the objectives the regulations are meant to achieve, would have fair warning of what the regulations require, the court said. “Here, we have little difficulty concluding that Mainline Rock had adequate notice of the regulatory requirements from both the plain language of the regulation and the explanatory notice published by the MSHA. ... The record indicates that the MSHA had previously warned the company to guard return rollers ... Mainline Rock was put on notice of the guarding requirement.”
On the issue of failing to report the accident, a violation of §50.10, the company argued there were no obvious signs of trauma to signal that the miner had suffered an accident with a reasonable potential to cause death. The company said when the life flight medics informed the manager of the nature of the injuries, he called MSHA within 15 minutes, but this was one hour and 38 minutes after the accident.
The mine manager easily could have asked what happened and immediately learned that the miner had been pulled through the roller, the court said. That knowledge alone would have alerted the mine manager to the severity of the accident and the potential for death. The obvious circumstances of the accident should have triggered some minimal degree of inquiry in a reasonable person, thus prompting a call to the MSHA. But the company chose to remain blind to those circumstances. The manager’s ignorance of the severity of the miner’s condition did not excuse Mainline Rock’s failure to timely report the accident.
The court upheld MSHA’s two penalties totaling $66,000 against the company.