Rock Products

JUL 2013

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When is an Emergency Emergent? A Recent Decision May Have 'Significantly And Substantially' Changed The Way In Which We Evaluate Penalties Associated With MSHA Citations. By Mark Savit A recent decision of the Federal Mine Safety and Health Review Commis‐ sion may have "significantly and sub‐ stantially" changed the way in which we evaluate penalties associated with MSHA citations. Historically, the Commission consid‐ ers 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 vio‐ lations of regulations that only come into play during emergencies. Companies have historically argued that, since emergencies are not "rea‐ sonably 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 42 ROCKproducts • JULY 2013 high off the mine floor, were attached by J‐hooks and were hung over water lines and cables. Because of the con‐ dition and location of the lifelines, in the event of a fire or other emer‐ gency, miners would have to take time and effort and use tools to ac‐ cess 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. It ar‐ gued that an injury would only occur in the event of an emergency, and be‐ cause 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 op‐ erator. He found that because an acci‐ dent 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 deci‐ sion and reinstated the S&S designa‐ tion. The operator appealed to the D.C. Circuit. Before the appellate court, the Secre‐ tary argued that when evaluating whether a violation of an emergency Mark Savit is with Jackson Lewis, a national employment law firm with more than 750 attorneys. He can be reached at 202-262-4081. 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 regula‐ tion for lifelines, MSHA should con‐ sider 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 cir‐ cumstances in which it was found, or is it reasonably likely to lead to an ac‐ cident in the context of the emer‐ gency to which it applies? The operator and others in the min‐ ing industry were concerned that the Secretary's interpretation would ren‐ der all safety and health violations S&S, except those that had no poten‐ tial for injury. If MSHA were to issue citations as‐ suming that an emergency situation is likely, that assumption would change the S&S calculation and dra‐ matically increase S&S citations. After

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