Examining the refined test for ‘S&S’ violations

The Federal Mine Safety & Health Review Commission recently issued a decision refining what the Mine Safety & Health Administration (MSHA) has to prove to establish that a violation is “Significant and Substantial” (S&S). 

For inspectors, whether a citation is going to be S&S often comes down to a simple assessment of hazard exposure and injury level. They tend to issue it as S&S wherever there has been some exposure to the hazard coupled with any likelihood of injury.

As we will see, the commission has established a more detailed test for S&S, which emphasizes the “reasonable likelihood” elements of the test.

Why S&S citations matter

When inspectors issue citations, they must also make findings as to how serious the citation is. Among these findings is an assessment of the likelihood that the violation would cause a serious injury or illness – the S&S finding. The S&S designation on a citation is important because it signifies that the inspector believes the violation presents a heightened risk for miners.

Second, an S&S finding can be the basis for more significant enforcement, such as unwarrantable failure citations or Pattern of Violations closure orders.

S&S citations can lead to more frequent inspection activity by MSHA. Operators can see how their mine’s S&S rate compares to others using the S&S rate calculator available on MSHA’s website.

The new legal test for S&S

The specific “Significant and Substantial” terminology comes from Section 104(d) of the Federal Mine Safety & Health Act, which describes an S&S violation as one that “could significantly and substantially contribute to the cause and effect of a …  mine safety or health hazard.”

For many years, the commission had held fairly steady in applying what is often called the Mathies test for S&S, which is based on a 1984 commission decision, Mathies Coal Co., 6 FMSHRC 1 (January 1984). 

For a violation to be S&S under the Mathies test, MSHA must prove all of the following: the underlying violation of a mandatory safety standard; a discrete safety hazard (a measure of danger to safety) contributed to by the violation; a reasonable likelihood that the hazard contributed to will result in an injury; and a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Over the years, there has been some confusion over how to apply the second and third parts of the test. In Newtown Energy Inc., 38 FMSHRC 2033 (August 2016), the commission attempted to address this by explaining that steps two and three of the Mathies test require the court to determine whether the hazard was reasonably likely to occur given the particular facts of the violation.

Recently, on June 2, the commission issued its latest decision refining further the Newtown and Mathies tests. In Peabody Midwest, LAKE 2017-450 (June 2020) (FMSHRC) the commission said MSHA will now have to prove the following for a citation to be S&S: the underlying violation of a mandatory safety standard; the violation was reasonably likely to cause the occurrence of the discrete safety hazard against which the standard is directed; the occurrence of that hazard would be reasonably likely to cause an injury; and there would be a reasonable likelihood that the injury in question would be of a reasonably serious nature.

The adding of the phrase “reasonably likely” in that third step is important. MSHA has been urging the commission and courts to use “somewhat likely” as the measure in the test – which would make it far easier for inspectors to issue S&S citations.

MSHA also had taken the position that the correct application of the S&S test is to always assume the emergency definitely would occur, rather than have to consider whether it was reasonably likely to occur under the facts at hand. The commission in the Peabody Midwest decision rejected MSHA’s argument and held that the inspector must consider the likelihood of the emergency occurring under the facts presented. So key facts – like whether there was an ignition source present – do matter to the S&S finding.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com