Where is S&S Going?
If it is upheld, the Cumberland case could expand the designation of S&S violations.
By Arthur Wolfson
A few years ago, I attended a mine safety seminar where one speaker lamented that the Mine Safety and Health Administration (MSHA) and mine operators 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 Commission. A recent decision from the coal sector — Cumberland Coal Resources, LP, Docket No. PENN 2008-189 (Rev. Comm. Oct. 5, 2011) — is evidence 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 determinations of a wide variety of standards across all sectors of the mining industry.
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 nature.” 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 question 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 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. 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 “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. 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 consideration of an emergency” because such standards “are intended to apply meaningfully only when an emergency actually occurs.”
The Commission insisted that it was not changing the longstanding Mathies formula for determining 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 Commission did not address how it reconciles this point 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. On its face, the Review Commission’s decision in Cumberland appears to be inconsistent with its past precedent in U.S. Steel Mining on this point. It is anticipated that the Circuit Court will address this inconsistency on appeal.
If the Review Commission’s decision survives appeal, it can be expected that violations of all standards that address measures taken to mitigate the consequences of emergency situations would more readily be designated S&S. In that regard, violations of requirements of items such as firefighting equipment, first aid equipment, certain personal protective equipment, and emergency communication and training would more readily be designated S&S because MSHA could make that designation in consideration of the occurrence of an emergency event. MSHA would not have to show that an emergency event was, in fact, likely. In underground mines, it can be expected that MSHA would apply that reasoning to escapeways standards.
But it may not stop there. In Black Beauty Coal Co., Docket No, LAKE 2008-477, which involved a surface mine, MSHA attempted to apply this same reasoning to a violation for inadequate berms along a roadway. It argued that an incident of over-travel must be assumed when considering whether a berm violation is S&S. Even under Cumberland, this approach is strained. The requirement of berms along roadways is not an evacuation or emergency standard. Indeed, it has been held that the purpose of a berm is not to prevent over-travel, but instead to guide vehicular motion along a roadway. See Daanen & Janssen, Inc., 18 FMSHRC 1796, 1815-16 (ALJ Barbour Oct. 1996). The Black Beauty case is currently on appeal before the Review Commission. No matter how it turns out, that case importantly shows how MSHA may apply the rationale in Cumberland to further extend S&S findings in new areas.
Cumberland is the latest development in the ongoing battle as to the proper meaning and application of S&S. This argument will not end with the outcome of that case, but it may signal a change in how certain violations are evaluated for S&S and give insight into how MSHA may approach this concept in the future.
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 firstname.lastname@example.org.