"Significant & Substantial" - Subjective, and Tough to Undo

An “S&S” denotation can turn a minor MSHA citation into a major problem. A recent Federal Mine Safety and Health Review Commission (“Commission”) case underscores the subjectivity, and persistence, of the S&S elevation, and provides new incentive to resolve a potential S&S at the closeout conference or informal conference stages.

In Secretary of Labor, Mine Safety and Health Administration (MSHA) v. S&S Dredging Company (2013 WL 3759791, July 10, 2013), a dredging contractor at a sand mine in Georgia received a citation for violating 30 C.F.R. § 56.1400(b) (equipment defects). During a routine inspection, an MSHA inspector noticed that the contractor’s loader steps were defective – the bottom step hung loosely from chains and was unstable, and the second step was bent and caved inward. Believing that the steps existed in this condition for an extended period of time, the inspector wrote the citation under section 104(d)(1) of the Mine Act – an S&S unwarrantable failure to comply. The contractor admitted that it violated the standard, but contested the S&S and unwarrantable failure to comply aspects of the citation.

In order to establish that a violation of a mandatory safety standard constitutes an S&S violation, MSHA must prove the following four criteria:

    1. the underlying violation of a mandatory safety standard [1];
    2. a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation;
    3. a reasonable likelihood that the hazard contributed to will result in an injury; and
    4. a reasonable likelihood that the injury in question will be of a reasonably serious nature.

(See Mathies Coal Co. (6 FMSHRC 1, 4 (Jan. 1984); Buck Creek Coal, Inc. v. MSHA (7th Cir. 1995) 52 F.3d 133, 135; Austin Power, Inc. v. Sec’y of Labor (5th Cir. 1988) 861 F.2d 99, 103.)

On appeal, the Commission ALJ decided that the contractor’s violation was not significant and substantial because MSHA failed to prove the fourth criteria, i.e., “a reasonable likelihood that the injuries in question will be of a reasonably serious nature.” The ALJ decided that although the injury in question could be sprains, or even a broken ankle, such injuries were not “of a reasonably serious nature” because no evidence showed that such injuries would require hospitalization, surgery, or a long recovery period.

MSHA appealed the ALJ’s decision to the Commission, which proceeded to dismantle the ALJ’s decision. The Commission stated that it has “consistently recognized that muscle strains, sprained ligaments, and fractured bones are injuries of a reasonably serious nature” for purposes of the S&S criteria. The Commission also held that the potential for hospitalization, surgery, or a long recovery period is not required to establish that a violation is significant and substantial. The Commission sent the case back to the ALJ to confirm the S&S and order an appropriate penalty.

The Commission’s decision highlights the subjectivity inherent in its S&S criteria. In this case, the Commissioners, who are all lawyers and not medical doctors, first guessed at what hypothetical injuries could result from the contractor’s violation, and then concluded, somewhat arbitrarily, that those hypothetical injuries were “reasonably serious”. In making this decision, the Commissioners cited to a case in which the potential for a finger fracture was deemed “reasonably serious” (Buffalo Crushed Stone Inc. (19 FMSHRC 231, 238 fn. 9 (Feb. 1997)), which suggests that virtually any hypothetical injury could be deemed the same.

This flexibility in the S&S criteria also makes an S&S citation difficult to vacate or convert to a non-S&S citation. Once a citation is deemed S&S and a penalty assessed, the Commission’s decision here and preceding decisions dictate that most injuries beyond a minor scrape or bruise are “of a reasonably serious nature” and sufficient to support the S&S designation. While MSHA is required to prove the above four criteria to support an S&S citation, operators in effect must present credible evidence showing that the Commission’s hypothetical injuries would not actually occur.

Operators should take extra care to understand the four S&S criteria and the low threshold for what constitutes an injury of a reasonably serious nature. Operators should be ready to convince an inspector that the criteria are not met either on the spot or at the inspection closeout conference, before MSHA finalizes the citation and a penalty is assessed. If unsuccessful in doing so during the inspection, operators should consider requesting an informal conference with the District Manager within 10 days after receiving the S&S citation to make a second attempt to vacate or downgrade the citation.

This case is also instructive on a second point: operators should be very careful to avoid making incriminating admissions during inspections and informal conferences. The contractor, in the course of discussing the citation with MSHA, admitted that the loader steps had been in their defective condition for about two years. Though it did not directly say as much, the Commission’s decision suggests that this admission played some part in the Commission’s determination to reverse the ALJ and find that the violation was S&S.

[1] Because S&S violations require a violation of a mandatory safety and health standard, only violations of 30 C.F.R. Parts 46, 47, 48, 49, § 50.10, 56, 57, 58, and 62 can be evaluated as S&S. An MSHA inspector cannot write an S&S violation for violations of Parts 40, 41, 43, 44, 45, and 50 (except for § 50.10). (Cyprus Emerald Res. Corp. v. FMSHRC (1999) 195 F.3d 42.).

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Categories: MSHA