Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/742224
AGGREGATES MANAGER / November 2016 41 to will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). The Newtown decision, however, shifts the focus from the third prong to the second prong of the Mathies test. Previous- ly, the Commission and ALJs assumed that a discrete safety hazard existed when analyzing the second prong, and opera- tors seldom challenged this assumption. Now, however, New- town likely makes the second prong the most important part of the Mathies test for operators challenging S&S citations. Newtown makes ALJs consider, under the second prong of the Mathies analysis, the reasonable likelihood that a hazard will occur. Previously, the Commission considered the reasonable likelihood of both the occurrence of a hazard and whether the hazard would contribute to an injury in the third prong. Newtown bifurcates that analysis, assigning the reason- able likelihood of the occurrence of a hazard to the second prong and the reasonable likelihood that a hazard will cause an injury to the third prong. This shift in the analysis likely makes the second prong the most important point for opera- tors to dispute when contesting S&S designations. For the reasonable likelihood analysis of the second prong, an ALJ must first determine what hazard is at issue, which it can glean from the standard cited. Newtown at *6. Next, an ALJ must consider all the facts to determine whether the al- leged violation and all the facts at issue create a reasonable likelihood of the identified hazard actually occurring. Id. If a judge finds that the violation satisfies the second prong, the analysis for the third prong assumes that the hazard is rea- sonably likely to occur; the only question in the third prong then becomes whether the occurrence of the hazard is rea- sonably likely to contribute to an injury when it occurs. Id. Future challenges This change in the Commission's application of Mathies ap- pears to be a technical difference, because the reasonable likelihood that a hazard will occur is still the paramount con- cern. Commission ALJs, however, will likely view Newtown as a marked change in the law that could affect the outcome of many S&S citations advanced to a formal hearing. As ALJs analyze and rule upon S&S citations using New- town's revision of the second and third prongs of the Mathies test, Newtown's specific affect upon S&S citations will become clear. Newtown's focus upon the second prong, however, will almost assuredly change the focus and structure of effective challenges to S&S citations before the Commission. AM LaPlant-Choate: No Job Too Tough! AEM Inducts 2014 Class into Hall of Fame Insley Manufacturing Corporation An Unsung Hero: The Dry Batch Paver Double Dude…Out Front Again! SPrINg 2015 • ISSUE #116 READ ALL ABOUT IT! It's only $35 US in the USA and Canada, $45 US all others. To join, call us at 419-352-5616, or mail a check or money order to HCEA, 16623 Liberty Hi Road, Bowling Green, Ohio 43402. Join online and learn more about us at www.hcea.net. Thank you for your interest and support! That's not all we do! We also feature: International Convention & Old Equipment Exposition Held annually and featuring working demonstrations and static displays. National Construction Equipment Museum and Archives A world-renowned collection, open to the public, of everything from fully restored antique machinery to 1800s literature and photographs. Join the Historical Construction Equipment Association (a non-profit organization) and receive its quarterly magazine, Equipment Echoes. Read fascinating articles about all types of old construction equipment, illustrated by beautiful historic photos. ABOUT IT! That's not all we do! We also feature: International Convention & Old Equipment Exposition Held annually and featuring working demonstrations and static displays. National Construction Equipment Museum and Archives A world-renowned collection, open to the public, of everything from fully restored antique machinery to 1800s literature and photographs. Join the Historical Construction Equipment Association (a non-profit organization) and receive its quarterly magazine, Read fascinating articles about all types of old construction equipment, illustrated by beautiful historic photos. JOIN HCEA TODAY! READ ALL ABOUT IT! Untitled-38 1 10/22/15 1:27 PM