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 awolfson@jacksonkelly.com.