Pit & Quarry, February 2017

MSHA THE LAW BY MICHAEL T HEENAN AND WILLIAM DORAN WHAT IS S S B efore the Mine Safety Health Administration MSHA can issue an unwarrantable failure citation the violation must be significant and substantial Before MSHA can issue pattern of violations orders a pattern of significant and substantial S S violations must be found Such elevated enforcement actions must be preceded by inspector findings that a violation is significant and substantial That makes S S findings important The term significant and substantial derives originally from the Federal Coal Mine Health and Safety Act of 1969 so it has been around a long time It is short for a violation of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety and health hazard That is the phrase as it appeared in the 1969 Coal Act and is now in the 1977 Mine Safety Act Those are many words In law they must all be given meaning But what meaning According to MSHA when an inspector finds a violation S S the inspector is saying that based upon the particular facts surrounding the violation there exists a reasonable likelihood the hazard contributed to will result in an injury or illness of a reasonably serious nature WHAT IS NOT S S Of all the terms employed in MSHA enforcement significant and substantial or commonly S S is the least understood Before we try to nail down what it is lets say what it is not It is not negligence It has nothing to do with fault or lack of fault by the mine operator Over the years a number of people in the industry have been confused about this It is not a violation of anything other than a mandatory safety or health standard The law limits application of S S to mandatory standards A violation of an administrative regulation does not qualify It is not a pure paperwork violation such as failing to record a pre operation examination of mobile equipment that had no safety defects Proof an examination was completed might have to be produced A violation is not S S if a consequential injury is unlikely It is not a technical violation such as a slightly out of date fire extinguisher inspection tag in an area where fire would be unlikely Proof of regular inspections might be needed MSHA S S FINDINGS MSHA requires inspectors to make four findings before citing a violation as S S 1 There must be a violation of a mandatory safety or health standard 2 There must be a discrete safety hazard MSHA says this is generally satisfied whenever there is a violation of a standard 3 There must be a reasonable likelihood the hazard contributed to will cause an injury or illness after evaluating the circumstances surrounding the violation If no miners were exposed or likely to be exposed probably not S S 4 There must be a reasonable likelihood that the injury or illness would be reasonably serious COMMISSION INTERPRETATION The four findings MSHA requires are derived from a 1984 Federal Mine Safety and Health Review Commission interpretation in a case involving Massie Coal Application of the test to facts of particular cases has often been challenging With greater MSHA emphasis on pattern of violation enforcement multiple cases have focused on new interpretations of the Mathies test In a decision this year involving Newtown Energy the five commissioners split several ways The case involved a lockout of power to equipment but the supervisor who locked out could not remove the key Feeling time pressure during an MSHA inspection he left the key in the lock All of the commissioners agreed it was reasonably likely that the incomplete lockout contributed to a discrete hazard However based on other recent precedent two commissioners would not insist injury be reasonably likely They opined at least somewhat likely would be sufficient At one point the opinion says We recognize that reasonable likelihood is not an exact standard Rather the reasonable likelihood standard is a matter of degree evaluation with particular focus on the facts and circumstances This imprecision and the complexity of the facts in many Mine Act cases do not undercut the importance of the standard indeed it serves to emphasize the necessity for careful thoughtful review of all relevant facts in every S S proceeding P Q Michael Heenan and William Doran are with the national labor employment and safety law firm Ogletree Deakins michael heenan@ odnss com william doran@ odnss com 102 PIT QUARRY February 2017 pitandquarry com