Submitted by jsharpe on Fri, 06/07/2013 - 2:10pm
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).
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
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
upholding the commission's position and denying
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."
"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.
"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
In disagreeing, the
commission remanded the case to the ALJ for penalty assessment. After the
fines were imposed,
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