$afepro again thanks Jim Sharpe, Sharpe's Point, for permission to publish this very timely report.

$afepro is puzzled by the lack of reaction to this ruling from the M/NM associations and Safety Professionals in the Metal/Nonmetal Industry given MSHA'S disregard for rulemaking procedure and fondness for "instant rulemaking" on the spot.! Please note the highlighting which, at this time, limits this rule to Coal emergency evacuation plans.


Appeals Court Says S&S Appropriate for Violations of Mine Emergency Standards


An appeals court has upheld a decision by the Federal Mine Safety and Health Review Commission that violations of an MSHA emergency lifelines standard are significant and substantial (S&S). 

The S&S classification of violations is a gravity determination based on an inspector's belief that the hazard contributed to by a violation of a mandatory safety and health standard carries a reasonable likelihood of serious injury.  Cumberland Coal Resources, LP argued that four violations of MSHA's lifeline standard, 75.380(d)(7)(iv), written in 2007 at its Cumberland Mine in Pennsylvania, were wrongly classified as S&S because the associated hazard was not reasonably likely.

However, the commissioners, in a unanimous decision in 2011, said that the MINER Act and its enabling regulation on emergency mine evacuations had to be interpreted in the context in which the lifeline equipment becomes relevant; that is, in an emergency.  Because Cumberlandís violations would delay miners' evacuation in an emergency, the infractions were properly designated as S&S.

In unanimously upholding the commission's position and denying Cumberland's petition for review today, the decision by the three-judge panel of the D. C. Circuit Court of Appeals seems to mean that MSHA could classify any violation of a mine emergency standard as S&S.

To prove S&S, MSHA bears the burden of establishing all four elements of the so-called Mathias test, named after a 1984 coal case.  The third element is the stickiest for the government to prove.  It requires evidence that there is a reasonable likelihood the hazard contributed to by the violation will result in injury.  Cumberland argued that by assuming the existence of an emergency when there was none, the commission excused MSHA from proving that element as well as the second element, which requires evidence of a discrete safety hazard.

"The problem with these arguments," the appeals panel wrote in a 19-page decision, "is that they assume that the Mathies test forbids the decision maker from assuming the existence of an emergency.  It does not."

The case was being closely watched by the mining community.  Stakeholders feared the ruling might give MSHA a legal basis for classifying all violations of its standards as S&S, except those with no potential for injury. However, the court made it clear its ruling only applied to violations of emergency safety measures. (At this time it seems to limit the rule to U/G Coal. Highlighting added by $afepro)

"Because the stakes are much higher in emergency situations, a rule that would make many or most violations of emergency safety measures significant and substantial is distinguishable from a rule that would make all violations of all safety measures significant and substantial," the jurists said.

Cumberland had also argued that the commission had failed to consider evidence of preventative measures that would have rendered injuries from an emergency and the occurrence of an emergency in the first place less likely.  But the court said the focus of S&S is on the nature of the violation. 

"Because redundant safety measures have nothing to do with the violation, they are irrelevant to the significant and substantial inquiry," the judges said.

The case has a bit of a tortured history.  After Cumberland appealed the violations, an administrative law judge (ALJ) ruled in the operator's favor, saying MSHA had failed to establish the reasonable likelihood that an emergency situation would arise.  As a result, it was unlikely that the hazard contributed to by the violation; i.e., a delay in escaping would result in injury.

In disagreeing, the commission remanded the case to the ALJ for penalty assessment.  After the fines were imposed, Cumberland appealed to the commission once again, but took the case to the appeals court after the commission declined to review it.

The foregoing is a service provided to subscribers of Sharpe's Point: On Mine Safety, Extracting Insights for Industry. Sharpe's Point: On Mine Safety is a publication of Sharpe Media LLC. 4519 34th Street S., Arlington, VA 22206-1914 Tel: 703-379-0652, Fax: 914-840-0716 e-mail:info@sharpespoint.com.  Copyright 2013, Sharpe Media LLC.  All Rights Reserved.


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