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  • Gary Visscher, Esq.

Mine Commission: M/NM Ground Control Requirements Subject to ‘Reasonable Person’ Standard

A decision by Federal Mine Safety and Health Review Commission (FMSHRC) on August 24, 2020 addressed the distinction between the operator’s “strict liability” for violations of MSHA standards and the application of the “reasonably prudent person” test to determine whether the operator has violated a broadly worded MSHA standard.

The case, Secretary of Labor v. The Doe Run Company, involved an underground lead, copper, and zinc mine. In 2015 a large roof fall occurred during and in a section of the mine where scaling operations were underway. The roof fall fatally injured the operator of a mechanical scaling machine operating in the area of the fall.

MSHA cited the operator under 30 C.F.R. 57.3360 and 57.3201. Both standards are written as “performance” obligations. For example, 57.3360 requires (in part) that “[g]round support shall be used where ground conditions, or mining experience in similar ground conditions in the mine indicate that it is necessary.” 57.3201 allows scaling only in “a location which will not expose persons to injury from falling material.”

The Administrative Law Judge held that because the Mine Act is a “strict liability” statute, the “fact of the fatal accident itself…demonstrates a per se violation of the safety standard.”

On review, the Commission held (3-2) that the ALJ had misconstrued strict liability under the Mine Act. Strict liability, the Commission said, applies once it is determined that there was a violation of the standard. However, in the case of broadly worded standards such as the ground control standards at issue and in order to meet constitutional due process and “fair notice” requirements, the determination must first be made as to whether the standard itself was violated, by applying the “reasonably prudent person” test to the operator’s conduct. (The standard has sometimes been stated as “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.”)

The record showed that MSHA had inspected both the area of the mine and the mechanical scaler on the day before the accident and found no defects. The company was complying with its internal ground control policy, which included requirements on scaling, bolting, and drilling test holes. A very experienced roof bolter for Doe Run testified that he had installed roof bolts in the area and there were no signs of a hollow area or void above the roof, nor other problems with the roof support.

Moreover, the Commission said, the hearing record showed that the mine had no previous instance where the type of roof bolts used had failed in similar ground conditions, and the testimony from both workers and the MSHA inspector who had inspected the area the day before the accident indicated that “there was nothing that should have put the operator on notice that ground support or ground conditions in the area were insufficient or hazardous.”

Similarly, with regard to the second citation (for violation of 57.3201), the Commission found the testimony, including testimony of MSHA inspectors, showed that operating the scaler in the location it was, 60 feet from the face and under bolted ground, would not have been cited but for the accident occurring.

Applying the “reasonably prudent person” test, the Commission majority held that the operator did not violate either of the cited ground control standards.

Commissioner Traynor and former commissioner Jordan wrote separate dissents. They argued that the majority had indeed undermined the Mine Act’s “strict liability” with this decision, and that considerations such as the absence of previous ground control incidents at the mine went to the issue of the operator’s level of negligence, not to whether the standards themselves had been violated.

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