Uncovering significant and substantial violations

Before 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, let’s 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.)

It is not a technical violation, such as a slightly out-of-date fire extinguisher inspection tag in an area where fire would be unlikely.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.”

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Michael Heenan and William Doran are with the national labor, employment and safety law firm Ogletree Deakins.