Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/141834
Rock Through two recent cases, the Review Commission is expanding what can be considered an S&S violation. by Christopher G. Peterson The STATE OF S&S M Christopher G. Peterson is a member of Jackson Kelly PLLC's Denver office, where he works with the firm's Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or via email at cgpeterson@ jacksonkelly.com. any operators may not be aware of this, but we have been in a state of flux regarding significant and substantial (S&S) designations over the past 18 months. The confusion around what constitutes an S&S designation is significant in light of the Mine Safety and Health Administration's (MSHA) new Pattern of Violation (POV) rule — which creates an enforcement scheme that primarily focuses on the number of S&S citations/orders issued to a particular operator. While the POV rule has been the subject of a legal challenge, operators should be aware of the impact of the new interpretation of what constitutes an S&S designation. The term "significant and substantial" is not defined in the Mine Act, but in 1984, the Commission announced a violation is S&S "if based on the facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (Rev. Comm., April 1981). The Commission also held that, to establish that a violation is S&S, MSHA must show: 1) the underlying violation of a mandatory standard; 2) a discrete safety hazard; 3) a reasonable likelihood that the hazard contributed to will result in an injury; and 4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Rev. Comm., January 1984). The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (Rev. Comm., April 1988). The Commission has explicitly rejected a test for S&S based upon the "potential" that an injury "could" occur. Wolf Run Mining Co., 32 FMSHRC 1669, 1677 (Rev. Comm., December 2010); Texasgulf, 10 FMSHRC at 500-01; see also Ziegler Coal Co., 15 FMSHRC 949, 953-54 (Rev. Comm. June 1993). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Rev. Comm., August 1985). Historically, the third element of the Mathies test has been the controlling factor. The Commission has explained that "[o]ur reference to hazard in the third element in Mathies contemplates the possibility of a subsequent event. This requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Rev. Comm., August 1984). Despite the longstanding analytical precedent that is Mathies, the Commission fundamentally changed the significant and substantial analysis by way of two recent decisions, Musser Engineering, Inc. & PBS Coals, Inc., 32 FMSHRC 1257 (Rev. Comm., October 2008) and Cumberland Coal Resources, LP, 33 FMSHRC 2357 (Rev. Comm., October 2011)(review pending, D.C. Circuit). Musser involved the 2002 Quecreek Mine inundation where citations were issued to an engineering firm and the production operator for failure to provide accurate up-to-date maps as required by 30 C.F.R. § 75.1200. Musser, 32 FMSHRC at 1262-63. The operator argued that the nature of the violation, i.e., relying on maps of abandoned AGGREGATES MANAGER July 2013 RockLaw_AGRM0713.indd 33 33 6/14/13 12:45 PM