By Mark Savit
A recent decision of the Federal Mine Safety and Health Review Commission may have “significantly and substantially” changed the way in which we evaluate penalties associated with MSHA citations. Historically, the commission considers a violation S&S if it is reasonably likely to result in a reasonably serious injury. The question in this case is what does “reasonably likely” mean in the context of a citation issued for violations of regulations that only come into play during emergencies. Companies have historically argued that, since emergencies are not “reasonably likely” to occur, violations of regulations related to emergencies are not “reasonably likely” to lead to an accident. This is precisely the scenario that arose in Cumberland Coal Resources LLP v. Federal Mine Safety and Health Review Commission D.C. Circuit June 7, 2013.
The coal mine operator was cited for four instances of out-of-reach emergency lifelines in its underground mine. The citations were designated as significant and substantial (S&S). The operator disagreed with the S&S classification and contested the citations.
The citations were written for four separate lifelines that were hung too high off the mine floor, were attached by J-hooks, and were hung over water lines and cables. Because of the condition and location of the lifelines, in the event of a fire or other emergency, miners would have to take time and effort and use tools to access the lifelines. The MSHA inspector who issued the citations reasoned that an out-of-reach lifeline would delay escape in an emergency, and therefore could lead to serious injury or death.
The operator saw it differently. They argued that an injury would only occur in the event of an emergency, and because an emergency is not reasonably likely to happen, the violation could not be S&S. The operator reasoned that a fire or other event that would necessitate evacuation was rare and unlikely. In the past, administrative law judges (ALJ) have considered and agreed with the operator’s reasoning. This case was not different. After a hearing, the ALJ agreed with the operator. He found that because an accident or emergency is unlikely, an injury resulting from the violation—improper lifeline location—was also unlikely.
The secretary of labor appealed to the commission. The commission unanimously reversed the ALJ’s decision and reinstated the S&S designation. The operator appealed to the D.C. Circuit. Before the appellate court, the secretary argued that when evaluating whether a violation of an emergency evacuation standard is S&S, one should assume the existence of an emergency. Therefore, even though it is unlikely that a miner would ever need to use a lifeline, when enforcing the regulation for lifelines, MSHA should consider the gravity of the violation as though an emergency were to occur. In other words, the inquiry would shift from, is the violation reasonably likely to lead to an accident in the circumstances in which it was found, or is it reasonably likely to lead to an accident in the context of the emergency to which it applies?
The operator and others in the mining industry were concerned that the secretary’s interpretation would render all safety and health violations S&S, except those that had no potential for injury. If MSHA were to issue citations assuming that an emergency situation is likely, that assumption would change the S&S calculation and dramatically increase S&S citations. After all, injuries and the likelihood of injury are much greater in an emergency situation than in normal mining operations.
The court specifically addressed these concerns and said that an inspector could only base an S&S designation on the assumption of an emergency for violations of standards that were specifically written for emergency situations, like lifeline or escapeway standards. The court said: “[E]mergency safety standards are fundamentally different from non-emergency standards because they are designed to apply meaningfully only in times of emergency.” However, the court recognized that its ruling would render many or most citations for emergency standards S&S, but justified this decision by acknowledging that “the stakes are much higher in emergency situations.”
Notwithstanding the language of the opinion, and given the current enforcement environment, it may well be “reasonably likely” that MSHA will attempt to expand this decision beyond its express limitations. How many of us have had conversations with an inspector where, in defense of an S&S designation, the inspector posited a hypothetical series of events which, had they occurred would render the alleged violation “significant and substantial?” The author has already heard inspectors and the lawyers who represent MSHA use the commission’s underlying decision to make the argument that, under the new ruling, the agency has to assume that the worst is going to occur. Of course, that’s not what the decision says, but, if not read closely, it can be overused to exaggerate the seriousness of what otherwise would be a “garden variety” non-S&S citation.
Whether this decision is restricted to its terms or not, it once again raises the stakes whenever a citation is issued, especially where the citation refers to any rule that might be construed to apply in an emergency. The cautionary tale to be taken away from the decision is that, notwithstanding how unlikely it is that an alleged violation might actually result in a serious injury, we are now confronted with the possibility that MSHA will use that remote chance to increase the gravity of a given citation.
Regardless, the one thing that we can be sure of is that it will lead to a “significant and substantial” increase in the number and intensity of penalty disputes.
Savit is a partner in the Denver office of Patton Boggs LLP. He can be reached at firstname.lastname@example.org.