Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/141834
RockLaw mines that were not final, was historically not likely to lead to serious injury. Id. at 1280. The Commission rejected the operator's argument and upheld the S&S designation. In so doing, the Commission held that the operator did not distinguish between the nature of the "violation" and the nature of the "hazard," and that this distinction is critical. Musser, 32 FMSHRC at 1280. It emphasized that in the context of S&S, "[t]he test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation . . . will cause injury. The Secretary need not prove that the violation itself will cause injury[.]" Musser, 32 FMSHRC at 1280-81. In Musser, the Commission defined the hazard as "the danger of breakthrough." Musser, 32 FMSHRC at 1280-81. The Commission then found that this hazard presented a likelihood of serious injury. Musser, 32 FMSHRC at 1281. The Commission's treatment of S&S in Musser refocused the S&S analysis on the nature of the "hazard" as defined in the second element of Mathies, and created the basis for its decision in Cumberland. In Cumberland, the Commission picked up where it left off in Musser and redefined the S&S analysis by focusing on the definition of "hazard" under the second Mathies element. Cumberland involved four citations for inadequate lifelines in escapeways in underground coal mines. 33 FMSHRC at 2357. A lifeline is designed to be used in case of an emergency event to assist miners in escaping an underground mine when there is no visibility. Cumberland, 33 FMSHRC at 2358 n.3. The Administrative Law Judge (ALJ) found the violations to be non-S&S because evidence did not establish a reasonable likelihood of an event such as a fire or explosion that would necessitate the use of a lifeline. 33 FMSHRC at 2361. MSHA appealed the judge's decision on S&S. MSHA argued that, in evaluating violations of "evacuation standards," such as the requirement of an underground lifeline, an emergency event must be "assumed" when determining whether the hazard contributed to by the violation presents a reasonable likelihood of serious injury or death. In response, Cumberland contended that the ALJ's reasoning was appropriate, in light of precedent stating that the Mathies criteria must be viewed "based on the particular facts surrounding the violation." Cumberland, 33 FMSHRC at 2362. The Review Commission reversed the judge's decision, finding that he erred by requiring MSHA to prove the reasonable likelihood of an emergency event. Cumberland, 33 FMSHRC at 2366. It held that "[e]vacuation standards are different from other mine safety standards" because such standards "are intended to apply meaningfully only when an emergency actually occurs." Cumberland, 33 FMSHRC at 2367. It did not go so far as to mandate the assumption of an emergency event, but did hold that the S&S analysis of an evacuation standard "involves consideration of an emergency." Cumberland, 33 FMSHRC at 2366. While the Commission did not specifically say the event should be assumed, "consideration" of an emergency event involves speculation as to what the emergency would be. In this case, an event compromising both escapeways would have to occur — a very unlikely scenario. The Commission insisted that it was not changing the longstanding Mathies formula for determining S&S. Cumberland, 33 FMSHRC at 2366. Instead, it contended that it was merely "refocusing" the inquiry on the hazard. Cumberland, 33 FMSHRC at 2366. It specifically applied its recent decision in Musser, where it held that under the third element of Mathies, "the Secretary need not prove a reasonable likelihood that the violation itself will cause injury." Cumberland, 33 FMSHRC at 2365. Instead, according to the Commission, the focus of the third element is whether the relevant hazard would cause injury. Cumberland, 33 FMSHRC at 2366. In the context of the lifeline violations, the Commission found that the relevant hazard was "miners not being able to escape quickly in an emergency situation." Cumberland, 33 FMSHRC at 2366. Based on other factual findings the ALJ made, the Commission held that such was reasonably likely to lead to a serious or fatal injury as contemplated by the third and fourth elements of Mathies. Cumberland, 33 FMSHRC at 2370. The Commission does not address how it reconciles this holding with its own precedent that any S&S finding must be based on the likelihood of a "subsequent event" and "a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." See U.S. Steel Mining, 6 FMSHRC at 1836. Thus, the Commission's decision in Cumberland appears to be inconsistent with its own past precedent set in U.S. Steel Mining on this point. The Commission also plainly ignored the fact that a "hazard" should be evaluated in light of the particular circumstances — as provided by longstanding case law. Instead, the Commission has committed itself to using a generic presumed "hazard" unconnected with the facts surrounding an alleged violation. Using this generic "hazard" will almost always result in an S&S finding. The focus on the "hazard" in the second element of Mathies appears to be a way to evade any proof of actual likelihood and entirely reinvents the test for S&S. The Commission's decision in Cumberland specifically discusses "evacuation standards" but the "new" test for S&S is hardly restricted to situations involving "evacuation." The Commission and its ALJs have used this new test for S&S to uphold S&S findings in other contexts and dramatically expand the S&S designation which, in light of MSHA's new POV rule, could have a significant impact on mining operations across the United States. AM Aggregates Manager July 2013 RockLaw_AGRM0713.indd 35 35 6/14/13 12:45 PM