Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/85648
Rock by Arthur Wolfson A IS S&S GOING? Where few years ago, I attended a mine safety seminar where one speaker lamented that the Mine Safety and Health Ad- ministration (MSHA) and mine opera- tors have been fighting about the same issues since the enactment of the Mine Act more than 30 years ago. One such issue that always sparks disagreement is whether a violation is significant and substantial (S&S). Of late, it appears that MSHA is making a conscious effort to expand the scope of S&S due to the political makeup of the Federal Mine Safety and Health Review Commis- sion. A recent decision from the coal sector — Cumberland Coal Resources, LP, Docket No. PENN 2008-189 (Rev. Comm. Oct. 5, 2011) — is evi- dence of just such efforts. That decision, which is currently on appeal before the D.C. Circuit Court of Appeals, has the potential to affect S&S deter- minations of a wide variety of standards across all sectors of the mining industry. Arthur Wolfson is an associate in Jackson Kelly PLLC's Pittsburgh office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 412-434-8062 or awolfson@jacksonkelly.com. 42 S&S is not defined in the Mine Act; however in 1984, the Review Commission announced that a violation is S&S "if based upon the particular 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 na- ture." National Gypsum Co., 3 FMSHRC 822, 825 (Rev. Comm. April 1981). To establish an S&S violation, 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 ques- tion will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Rev. Comm. Jan. 1984). Historically, the third element of the Mathies test has proved dispositive. The Commission has explained that "[O]ur reference to hazard in the third element in Mathies contemplates the pos- AGGREGATES MANAGER May 2012 If it is upheld, the Cumberland case could expand the designation of S&S violations. sibility 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. Aug. 1984). In Cumberland, the Commission refocused the S&S analysis from the third element of Mathies to the second. Cumberland involved four citations for inadequate lifelines in escapeways in underground coal mines. 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. In Cumberland, the administrative law judge found the violations to be non-S&S because the evidence did not establish a reasonable likelihood of an event such as a fire or explosion that would necessitate the use of a lifeline. MSHA appealed the judge's decision on S&S. It argued that in evaluating violations of "evacu- ation 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 reason- able likelihood of serious injury or death. The Review Commission reversed the judge's decision, finding that he erred by requiring MSHA to prove the reasonable likelihood of an emergency event. It did not go so far as to mandate the assumption of an emergency event, but did hold that the S&S analysis of evacuation standards "involves consid- eration of an emergency" because such standards "are intended to apply meaningfully only when an emergency actually occurs." The Commission insisted that it was not chang- ing the longstanding Mathies formula for deter- mining S&S. Instead, it contended that it was merely "refocusing" the inquiry on the hazard and, in the case of evacuation standards, that inquiry must consider an emergency situation. The Com- mission did not address how it reconciles this