The State of S & S
Through two recent cases, the Review Commission is expanding what can be considered an S&S violation.
By Christopher G. Peterson
Many 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 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.
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 firstname.lastname@example.org.
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