Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/742224
40 AGGREGATES MANAGER / November 2016 Newton reprioritizes the Mathies criteria of S&S violations and changes the challenge process. K. Brad Oakley is a member in Jackson Kelly PLLC's Lexington, Ky., office, practicing in the firm's Occupational Safety and Health Practice Group. He can be reached at 859-288-2835 or kboakley@jacksonkelly.com. Benjamin J. Ross is an associ- ate in the firm's Denver office, also practicing in the Occupa- tional Safety and Health Prac- tice Group. He can be reached at 303-390-0026 or bross@ jacksonkelly.com. Significant and Substantial Revisited O n Aug. 29, 2016, The Federal Mine Safety and Health Review Commission (Commission) issued Newtown Energy, Inc., a decision that changes the analysis used by adminis- trative law judges (ALJs) to determine whether a violation is properly classified as Significant and Substantial (S&S). Newtown Energy, Inc., __ FMSHRC ___ (Rev. Comm. August 2016) (Docket No. WEVA 2011-283). The Fourth Circuit Court of Appeals' deci- sion in Knox Creek Coal Co. prompted the Commission to clarify that the Fourth Circuit's decision in that case did not remove the "reasonably likely" analysis employed by the Commission's Mathies test for S&S citations. Knox Creek Coal Co., 36 FMSHRC 1128 (Rev. Comm. May 2014), aff'd, 811 F.3d 148, 163 (4th Circuit 2016). Although Newtown retains the "reasonably likely" language, it appears to change the analysis that the Commission and its ALJs will likely use to determine if a cita- tion is properly designated as S&S. Case law background By way of background, Section 104(d) of the Mine Act authorizes the Mine Safety and Health Administration (MSHA) to issue elevated citations for hazards that could sig- nificantly and substantially contribute to the cause and effect of a safety or health hazard in the mine. 30 U.S.C. § 814(d)(1). In Mathies, the Commission applied the S&S language from § 104(d)(1) and defined the elements of an S&S violation as: (1) the underlying violation of a manda- tory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard con- tributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Circuit 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Circuit 1988) (approving Mathies criteria). Those who are regulated by MSHA are likely familiar with the myriad ways MSHA inspectors justify issuing S&S citations. These types of citations are no longer uncommon and can play an important role in MSHA's decision whether to place an operator on the Pattern of Violations status. When challenging citations issued as S&S, the language con- cerning S&S in the Mathies decision is likely the most frequently cited Commission case law. ALJs rely on Mathies in nearly every in- stance of a challenge to the S&S designation for a citation and have done so since 1984. Shift in priorities Most challenges to an S&S designation have focused on the third prong of the Mathies test, with the Commission and ALJs often stating that it is the most difficult part of the test to apply. In order to satisfy the third prong of the Mathies test, the Secretary must prove "a reasonable likelihood the hazard contributed by K. Brad Oakley and Benjamin J. Ross ROCKLAW