Secretary of Labor v. Peabody Midwest Mining, LLC

Plain-English summary

Peabody violated its emergency response plan by placing one refuge chamber in the direct line of sight of the working face. The Commission majority held that the violation was not significant and substantial because the properly located chamber could hold the 15-miner production crew, while more miners were present only during shift changes when production and coal haulage stopped. It restated the S&S test to require proof that the violation was reasonably likely to cause the specific hazard, followed by likely serious injury. The majority removed the S&S designation and remanded for a new penalty assessment. Commissioners Mary Lu Jordan and Arthur Traynor dissented, reasoning that emergency-standard analysis should assume the contemplated emergency and that the record supported the need for both chambers.

Decision snapshot

• Cited authority: 30 U.S.C. § 876(b); 30 C.F.R. § 75.1506
• Outcome: The ERP violation remained, the S&S designation was vacated, and the case was remanded for penalty reassessment.
• Key point: For S&S, the Secretary must connect the violation to a reasonably likely hazard under the mine's actual operating conditions, even when the standard concerns emergency readiness.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH      

ADMINISTRATION
(MSHA)

v.

PEABODY
MIDWEST MINING, LLC

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Docket No. LAKE 2017-450

BEFORE: Rajkovich,
Chairman; Jordan, Young, Althen, and Traynor, Commissioners

DECISION

BY:
Rajkovich, Chairman; Young and Althen, Commissioners

This proceeding arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act”). At issue is a citation issued by the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) to Peabody Midwest Mining, LLC
(“Peabody”). The citation alleges a violation of section 316(b) of the Mine
Act, 30 U.S.C.

§ 876(b), for failure to comply with a
provision of the mine’s approved Emergency Response Plan (“ERP”). The ERP requires
that “[r]efuge chambers will not be placed in direct line of sight of the
working face.” Sec’y. Ex. 1, 2. MSHA designated the violation as
“significant and substantial” (“S&S”) [1] and resulting from an
unwarrantable failure.

The
Administrative Law Judge affirmed the citation as written and increased the
penalty from $44,546 to $50,000. 40 FMSHRC 861 (June 2018) (ALJ). On review,
Peabody does not contest the fact of the violation or the unwarrantable failure
designation. It challenges the citation’s S&S designation.

For the reasons
that follow, we reverse the Judge’s S&S determination and remand the case
for reassessment of the penalty. [2]

I.

Factual and
Procedural Background

On July 19, 2017, MSHA
Inspector Bryan Wilson conducted an inspection of the Francisco Underground
Pit, an underground coal mine in Gibson County, Indiana. During the inspection,
Inspector Wilson observed a refuge chamber properly located in the 27 crosscut. [3]  

He also observed a second
refuge chamber. It was located in Entry 6, approximately 480 feet outby, and in
the line of sight of, the working face. As a result, Inspector Wilson issued Citation
No. 9105403, alleging that the placement of the refuge in Entry 6 violated the
mine’s ERP that, in relevant part, provides that “[r]efuge chambers will not be
placed in direct line of sight of the working face.” Sec’y Ex. 1, 2.

The use of
refuge chambers in underground coal mines is mandated by Section 2 of the Mine Improvement and New Emergency Response
Act of 2006, 30 U.S.C. §
876 (“MINER Act”) and 30 C.F.R. § 75.1506. The regulation requires that refuge
chambers in working sections must be located within 1000 feet of the face and
must be able to accommodate the maximum number of persons that can be expected
on or near the section at any time. The #1 Unit normally had 15 miners per
shift. However, during shift changes, two shifts (a presumed total of 30
miners) would be present on the section simultaneously for a brief period. Because
the refuge chambers employed by Peabody could accommodate 20 miners each, two
refuge chambers were utilized for the #1 Unit in order to comply with the
regulation during any brief influx of miners to the section.  

At the hearing, Inspector
Wilson testified that the placement of the refuge chamber in Entry 6 violated
the ERP and could contribute to a discrete hazard. He testified that if there
was an explosion, it could travel outby and damage the refuge chamber in that
entry. Tr. 42. If that occurred when more than 20 miners were present, then
there would not be the required place of refuge for all miners.

Inspector Wilson did not
base his finding that an injury would be reasonably likely on the particular
facts of the mine but rather upon “past history of mines with explosions . . .
.” Id . He further testified that he designated the citation as
significant and substantial because he “found it reasonably likely, if normal
mining conditions were to continue, an event of a serious nature would cause an
injury of a -- of a reasonably serious nature.” Tr. 46.

It is evident from the
testimony of Peabody’s Director of Safety and Compliance, Chad Barras, and the
evidence of record, that the only time more than 20 miners would be on section
was during shift changes when an oncoming crew would arrive before the current
crew left the section. He testified that no mining occurs during this
changeover period as the departing crew is preparing to leave and the incoming
crew is preparing to take over. Therefore, according to him, continuous mining
and coal haulage—that is, production activities—do not occur during the brief
period when more than 20 miners are present. Tr. 82-84. The Secretary did not
introduce any rebuttal testimony.

Nevertheless, the Judge
found the citation satisfied all the criteria for an S&S designation and
affirmed the finding that the violation was S&S. See Mathies Coal
Co. , 6 FMSHRC 1, 3-4 (Jan. 1984); Newtown Energy, Inc., 38 FMSHRC 2033,
2037 (Aug. 2016). He found that the violation contributed to a discrete safety
hazard. Specifically, he found that some miners would be unable to use a refuge
chamber if an explosion traveling outby damaged or destroyed the refuge chamber
in Entry 6 while more than 20 miners were present on the section. He opined
that the other refuge chamber, located in the crosscut, would be insufficient. The
Judge found that the only relevant factor was that more than 20 miners would be
“working” on the section during a shift change.

II.

Disposition

A. The Significant and
Substantial Standard— National Gypsum

The definition
of an S&S violation is found in Section 104(d)(1) of the Mine Act. There,
the Act identifies a significant and substantial violation as a violation “ of such nature as could significantly and
substantially contribute to the cause and effect of
a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1) (emphasis added).

For nearly 40 years, our fundamental precedent on
S&S findings, namely, Cement Div., Nat’l Gypsum Co. , 3 FMSHRC 822
(Apr. 1981), based its holding on this statutory language. There, the Secretary
posed an interpretation that “ a violation is of a significant and substantial
nature, so long as it poses more than a remote or speculative chance that an
injury or illness will result, no matter how slight that injury or illness.” Id. at 825. We
rejected that interpretation, finding that such an interpretation “ would result in
almost all violations being categorized as significant and substantial” and
that such an interpretation “would be inconsistent with the statutory language
and with the role we believe the significant and substantial provisions are
intended to play in the enforcement scheme .” Id.

We found that a violation is significant and
substantial if the “violation ‘significantly and substantially’ contributes to
the cause and effect of a hazard if
the violation could be a major cause of a danger to safety or health. In other
words, the contribution to cause and effect must be
significant and substantial.” National Gypsum at 827 (emphasis added). We then articulated the seminal holding
that a violation is S&S if, “based upon the particular facts surrounding
the violation, there is a reasonable likelihood that the hazard contributed to
by the violation will result in an injury or illness of a reasonably serious
nature.” Id. at 825. Obviously, the violation will be reasonably likely
to result in an injury if it is reasonably likely to cause a hazardous event
that, in turn, is reasonably likely to result in an injury.

The fundamental principles of National Gypsum form the
basis of our analysis in this case. Here, the facts show the uncontested
violation as a wrongly placed refuge chamber. Fundamentally, there must be
proof of a true unavailability of shelter for the miners affected due to this
violation. The cause and effect of the
violation is, then, predicated upon whether the unavailability of a second
shelter would significantly and substantially contribute to an inability of
miners on the section to shelter at the time an emergency occurred. 

B. The National Gypsum Standard as
Refined by Mathies and its
Progeny

The National Gypsum “reasonably-likely-to-result”
analysis necessarily involves the relationship of the violation both to the
“cause” and to the “effect” of a hazard. We refined this in Mathies, supra, by
applying a 4-Step
analysis:

In order to
establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum , the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (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.

6
FMSHRC at 3-4 (footnote omitted).

We further explained the roles of Steps 2 and 3 of
this analysis in Newtown , 38 FMSHRC at 2036-37. The
application of Step two of the Mathies test requires us to determine
“whether [the] hazard was reasonably likely to occur given the particular facts
surrounding this violation.” Id. at 2041.

Our
decision today recognizes that National Gypsum, Mathies, Secretary v. Musser

Engineering,
Inc. and PBS Coals, Inc., 32 FMSHRC 1257 (Oct. 2010) and, most recently, N ewtown, are all grounded
on the statutory language of the Mine Act, and that cases following National
Gypsum, including Mathies, Musser, and Newtown, have
been bound by National Gypsum ’s focus on a violation’s
contribution to both the “cause and effect” of the hazard.

Indeed,
Musser’s analytical focus of “reasonable likelihood” was grounded on the
statutory language. 32 FMSHRC at 1279-81. However, Musser left an
unanswered question of whether determination of the contribution of the “cause”
of the hazard under Step 2 required the Secretary to prove a reasonable
likelihood that the hazard would occur. Newtown answered that question
in the affirmative.

Thus, once a violation has been established in Step
1, we are required to analyze that violation to determine whether it could
significantly and substantially contribute to the cause (Step 2) and the effect
(Steps 3 and 4) of the hazard. Under National Gypsum and subsequent
precedents, that contribution must be such as to make the hazard reasonably
likely to occur (“cause”) and, in turn, reasonably likely to result in
reasonably serious injuries (“effect”). [4]

C. The Restated Significant and Substantial Standard

To set forth the Newtown refinement in
language helpfully parallel to Mathies , we hold that the proper test for
an S&S violation is:

In order to
establish that a violation of a mandatory safety standard is significant and
substantial, the Secretary of Labor under National Gypsum must prove:
(1) the underlying violation of a mandatory safety standard; (2) the violation
was reasonably likely to cause the occurrence of the discrete safety hazard
against which the standard is directed; (3) the occurrence of that hazard would
be reasonably likely to cause an injury; and (4) there would be a reasonable
likelihood that the injury in question would be of a reasonably serious nature. [5]

D.
Determination of “Significant and Substantial” in the Context of a Contemplated
Emergency under Cumberland, National
Gypsum and Restated Mathies

1. The Contemplated
   Emergency    under
   Cumberland

The Secretary and our
dissenting colleagues conflate the initiating emergency with the hazard at
which the standard is directed. The initiating emergency, in this case,
is the anticipation of an explosion at the face that requires miners at the
face to take shelter in a place of refuge. The hazard would be insufficient
refuge for those miners, if and when an explosion would occur that may destroy
or render useless the refuge chamber that was placed in the line-of-sight of
the working face.

Therefore, it is
crucial that we identify the “hazard,” precisely, in the context of the
occurrence of the envisioned “emergency.” Cumberland Coal Res., LP, 33
FMSHRC 2358, 2369 (Oct. 2011). The “hazard,” here, turns on whether the
violation renders shelter unavailable to any affected miner on the section
if and when an “emergency” occurs. 

As we held in Cumberland,
identification of the contemplated emergency is not the end of the S&S
inquiry. “Because the particular facts in a case may not establish that a
violation of an evacuation standard contributes to a hazard which is reasonably
likely to result in an injury, not every violation of an evacuation standard
will be S&S.” Id., citing Rushton Mining, 11 FMSHRC 1432,
1436 (Aug. 1989). A violation is S&S only if it meets the standards of Mathies/Newtown .
The Commission has never held that every violation of an emergency standard is
S&S, nor have we assumed the elements of an S&S are always present.

In
fact, we have expressly held to the contrary:   “[A]ssuming the existence
of an emergency is not the same thing as assuming that the violation is
S&S.” ICG Illinois, LLC , 38 FMSHRC 2473, 2476 (Oct. 2016). Yet
contrary to Cumberland and ICG , the Secretary and the dissent
seek here to merge the contemplated “emergency” with the “hazard.” They are not
synonymous. The emergency is an assumed explosion on the face that destroys or
renders unusable the refuge chamber left exposed to the explosion in Entry 6. The
hazard is that a miner will not have a place of refuge.  Thus, it must be
established that, at any time at which a plausible explosion might occur, there
would be insufficient shelter for the number of miners on the section at that
moment. There is no substantial evidence in this case to support such an
insufficiency.

2. The
   Number of Affected Miners

All agree that
during a shift change there would have been more than 20 miners on the section.
However, the key factor in determining whether this violation is S&S is the
number of miners on the section at a time when mining activities might have
resulted in an explosion. The problem with the Secretary’s theory is that
substantial evidence does not support a finding that there would be more than
20 miners on the section during that time.

As previously noted, Peabody engaged in a practice
whereby miners would not leave the section until the next shift neared the
section—a “hot-seat” shift transition. Through that process, the existing crew
stays at the section until the oncoming crew nears the unit. Tr. 82-83. The
evidence demonstrated that Peabody had instituted and followed a safety policy
whereby coal production would cease during the transition. [6] Tr. 82-84.

The Secretary points to the testimony of Chad
Barras, regarding the possibility of mining operations continuing during shift
changes. The Judge and our dissenting colleagues grievously misconstrue Barras
testimony, taking it out of context. Barras’ testimony does not indicate any
prospect for an ignition source during shift changes and, in fact, Barras
testimony directly disclaims such prospect.

Barras testified that not all work stopped on the
section, but a shift change “[d] oesn’t mean we’re not all up there, but
the mining part, we -- we stopped the car hauling” (Tr. 83) and without car
haulage the continuous miner would not be operating. Tr. 84. [7] He
further testified that the existing miners stay on the section until the
oncoming section gets “near” to the section.  Tr. 82-83. In fact, Barras
testified that miners would typically be ready to go home at the end of their
shift and would be waiting next to the mantrip when the next shift arrived. [8]
Thus,
Barras’ testimony directly undercuts any notion of the existence of an ignition
source during shift change. Importantly, this evidence was not contradicted.

The dissent again misrepresents our opinion, arguing
that we “assume” a shift will
have always entirely ceased mining activity while waiting for the on-coming
shift to arrive during a “hot seat” changeover. Slip op. at 15. In fact, as
demonstrated above, we do not assume anything. We reflect the unrebutted
testimony in the record. 

Critically, the Secretary did not introduce any
evidence of a plausible ignition source at the hearing, as was his burden. Likewise,
the dissent does not cite any evidence suggesting any type of active mining or
any other activities that could trigger an ignition, which in turn would lead
to an explosion occurring during the shift change. That is the crucial period
in this analysis since it is the only time when more than 15 miners would be
present on the section. This is the fact that the dissent continually seeks to
avoid but cannot be permitted to overlook.

Additionally, the dissent misstates our
opinion by incorrectly claiming that we assert a second refuge chamber will never
be needed, that the violation could never be an S&S violation, and
that we have launched an attack on the ERP itself. Slip op. at 15-16. That is
nowhere in our opinion, nor can it be implied. The ERP provision at issue here is
a general ERP provision applicable to many mines and, undoubtedly, to many
situations. It is not formed specifically to the facts and circumstances of
each and every individual mine or mining circumstance. Here, we are not dealing
with abstract future events or general, non-specific circumstances. This case
involves a specific and limited issue. Over the short operative period of the
specific violation in this case, the issue is whether more than 15 miners will
be on the section when any activity takes place that might produce an explosion.
As seen, there is no evidence that such an event would occur during the
operative period.
Refusing
to accept the evidence, the dissent again attempts to conflate the emergency
with the hazard attempting to d odge the fact that the evidence does not support
that such an event could occur over the brief operative period of this
violation.

The unrebutted facts are determinative.

The Secretary must prove his
case based upon those facts and not upon what he wishes them to be. This is
precisely the mandate of the Mine Act , as well as the
Administrative Procedure Act, 5 U.S.C. § 551, et. seq. Here, the
Secretary failed to prove his case.

Our dissenting
colleagues’ reference to Twentymile Coal Co. , 36 FMSHRC 1533, 1537 (June
2014), and Plateau Mining Corp ., 28 FMSHRC 501, 505 (Aug. 2006), (slip
op. at 16) underscores the necessity for facts and evidence demonstrating the
reasonable likelihood of an explosion. Both of those cases involved the
reasonable likelihood of an explosion during production activities with
supportive evidence based upon facts proven. That is what is absent in this
case. While the dissent laments that the “Secretary could never prove that a
violation of this emergency response provision was S&S” (slip op. at 20),
they nevertheless attempt to set parameters where the Secretary must prove
practically nothing. The Secretary cannot alter the state of facts and
evidence, much less ignore them altogether.

The Judge and
dissent confuse the elements of a violation with the proof required for an
S&S violation. The presence of more than 20 miners on the section at any
time that the refuge chamber was exposed to the hazard of an explosion at the
face constitutes a violation because it violates the plan requirements. That
violation is S&S however, only if it meets the elements of S&S.

Although not
stated explicitly, our dissenting colleagues directly contradict the settled
case law cited above that the assumption of the emergency is different from the
assumption of the occurrence of the hazard. They essentially take the position
that every violation of an emergency standard is an S&S violation because
one must assume the occurrence of the hazard at which the emergency provision
is directed. Thus, here, they assert we must assume the occurrence of an
explosion when more than 15 miners are present on the section during mining
operations, when there is no evidence that more than 15 miners would
be present on the section when mining is occurring . This reasoning
is fatally flawed given the uncontroverted facts.

The only time more than 15 miners were present, in
this case, is at a time when no mining activities were occurring. There is no
evidence to suggest otherwise. Moreover, the conditions of the area, at this
time, rendered nothing to indicate a potential explosion. The inspector found
proper rock dusting in place ( Tr. 27), did not note the presence of any float coal
dust, nor did he identify any nearly explosive level of methane. The dissent
manufactures a hypothetical explosion out of thin air without any evidentiary
support.

The dissenters
cite ICG , supra , which ironically undercuts their
argument. In that case, there was a working section with mining
activities actively occurring. ICG Illinois , 38 FMSHRC at
2475-82. The
assumption in that case was that there would be an explosion on a working
section . In turn, the S&S question in ICG was whether it was
reasonably likely that miners would not be able to reach a refuge chamber
placed farther from the face than allowed under the emergency provisions. Id .
The majority held that evidence supported the claim that miners would
reasonably likely not be able to reach the refuge chamber. Id . at 2479-80.
The assumed triggering event for the danger, however, was an explosion on a
section where mining was actively occurring . Thus, the finding of a
violation is not the same as the finding of S&S. Similarly, in referring to
Spartan Mining Co., Inc. , they again
fail to note that the case dealt with an assumed occurrence of an explosion on
a working section when mining is actively occurring . 35
FMSHRC 3505 (Dec. 2013). Again—that is not the case, here.

Our dissenting
colleagues effectively assert that every violation of an emergency standard is
an S&S violation. Assuming that all 15 miners left the section before
another 15 arrived, it would be absurd to concoct an S&S violation—only 15
miners would be on the section at any given time. There would still be a
violation of the ERP because of the location of the second refuge but there
would not be a possibility of a shortage of places in a refuge chamber. Yet,
for purposes of analysis that is virtually the situation here. During mining at
shift change, the section becomes as quiescent regarding mining, as if no
miners were present. [9]

3.          The
“Significant and Substantial” Analysis

The record developed below does not support a
reasonable likelihood of ongoing activities capable of igniting methane, and in
turn, causing an explosion when more than 20 miners would be present on the
section. To the contrary, the evidence shows that during mining activities of
the operative shifts, there would be only 15 miners working on the section at a
given time. Tr. 44. No evidence was presented that more than 15 miners would be
on the section when mining was occurring. More specifically, there was no
evidence that mining activities capable of igniting an explosion would occur
during a shift change.

Therefore,
substantial evidence fails to establish that more than 20 miners were, or would
be, present on the section when there was any reasonable likelihood of the
hazard—lack of refuge space—toward which the standard is directed. For this
reason, we do not find substantial evidence that the location of the second
refuge chamber in Entry 6 was reasonably likely to result in the absence of a
refuge alternative, and consequently, an injury of reasonably serious nature.

The Secretary suggested that there could be some
reason for more than 15 miners to be present on the section during mining. However,
this is pure speculation without any evidentiary support. In short, no
testimony supported a contention that a single refuge chamber would be
insufficient when any ignition sources existed on the section.

Under the basic tenets of National Gypsum, there is no proof of an unavailability
of shelter for any affected miner at the time of the emergency contemplated
under the facts of this case. At a time of an “emergency,” when an explosion
might occur, fewer than 20 miners would be on the section. There being no
unavailability, the “hazard” of insufficient shelter space does not exist. Without
such reasonable likelihood, the violation is not significant and substantial.

This result is
confirmed under a restated Mathies Step analysis. Under Step 2 of Mathies,
the Secretary would not be required to prove that the refuge chamber would
be unavailable. However, he is required to show that the violation (the wrongly placed refuge chamber) was reasonably likely to cause
the occurrence of the discrete safety hazard against which the standard is
directed—the inability of miners to shelter .

The Secretary’s
case also separately falters at Step 3—the duty to prove by a preponderance of
the evidence that the occurrence of the contemplated hazard would be reasonably
likely to result in injury. As noted, t he Secretary has not shown any mining
activities that could cause an explosion occurring while there were more than
20 miners on the section. Therefore, if there was a loss of one refuge chamber,
after an explosion, a functioning refuge chamber in the crosscut would have
accommodated all miners on the section.

As
in most S&S cases, our conclusion is a narrow one, based on the particular
circumstances of this case. Here, the operator conceded the violation. However,
one refuge chamber capable of housing 20 miners was properly located in a
crosscut and the Secretary did not introduce sufficient evidence to find that
more than 20 miners would be on the section at the time of any plausible
explosion. Therefore, the Secretary did not demonstrate that it was reasonably
likely there would be more miners on the section than the one remaining
20-person refuge alternative could accommodate. Accordingly, the Judge’s
finding of a significant and substantial violation must be vacated.

III.

Conclusion

For the foregoing reasons,
we reverse the Judge’s findings on S&S and vacate the S&S designation
for the violation. We remand the case so that the Judge may reassess the
penalty in accordance with this decision.

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Commissioners Jordan and Traynor,
dissenting:

In violation of its own emergency response plan,
Peabody Midwest Mining (“Peabody”) placed a rescue chamber in direct line of
sight of the working face. [10]
Peabody does not challenge the Judge’s finding of a violation before the
Commission, only the decision to affirm the significant and substantial
(“S&S”) designation. For the reasons set forth below, we would affirm the
Judge’s significant and substantial finding.

The
operator’s plan requires that “[r]efuge chambers will not be placed in direct
line of sight of the working face.” Sec’y Ex. 2. [11] The
purpose of this requirement is to ensure that refuge alternatives are intact
and available to the miners who might need them in the event of an emergency. [12]

Peabody
had two rescue chambers in the relevant area of the mine, the one at issue (480
feet from the working face and in direct line of sight of it) and a second one
that was properly situated. Each chamber housed 20 miners. Although the
operator did not challenge the violation, its primary defense to the S&S
designation is that even if the improperly located chamber were damaged by an
explosion, the second chamber could serve to protect all miners, as there would
never be more than 20 working in the area at one time when mining was taking
place. As we explain below, this contention is not supported by the record.

In
order to find that a violation of a mandatory safety standard is significant
and substantial, the Secretary must prove: (1) the underlying violation of a
mandatory safety standard; (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. Mathies
Coal Co. , 6 FMSHRC 1, 3-4 (Jan. 1984). [13]

Our
S&S inquiry hinges on whether, if there were an explosion, some miners
would not have access to a refuge chamber (the hazard) and whether there is a
reasonable likelihood that this would result in an injury. This analysis, in
turn, centers on whether there would ever be more than 20 miners at a time who
might need to take shelter in a rescue chamber. Our colleagues answer this
question in the negative, and, finding no need for two rescue chambers,
conclude that the violation was not S&S.

Before
the Judge and the Commission, Peabody asserted that more than 20 miners were
present at the face only during a hot-seat change, [14] and
that mining is not performed during those periods. The operator contends that
an ignition creating an explosion that would require the use of both chambers
would be unlikely at that time.

The
Judge rejected this argument. He stated that:

Peabody’s
claim that both chambers would only be necessary if an ignition occurred during
a hot-seat change and that no work is performed during those changes is not
supported by the ERP’s [emergency response plan] language or the record. The
number of refuge chambers required in a given area is dictated by the number of
employees that may work in the area, and the ERP explicitly requires two refuge
chambers with the capacity to hold 20 miners apiece. Tr. 81-82.

40 FMSHRC 861,
869 (May 2018).

The
Judge’s ruling is supported by substantial evidence. [15] In
rejecting Peabody’s assertion, he relied on the testimony of Chad Barras, the
operator’s safety director. Barras stated that both rescue chambers are
necessary because more than 20 miners could be present at the working face on a
given shift—and not only during hot-seat changes. He testified as follows:

Q. How many
refuge chambers are required to be present in an intake? Actually, let me ask
it a different way: How many refuge chambers are required to be present for use
by miners on the working section?

A. It really
depends on the total number of employees to be there at a given time. For the
plan at Francisco [the mine in question], it’s two.

Q. It’s two? Okay.
And why is it two?

A. The --there
are situations where we have changed it to face or had more people on the unit
than just A crew. [16]
It’s by alphabet and that could go past the capacity of a 20-man chamber.

Tr. 81-82.

Given
this testimony, it was reasonable for the Judge to conclude that there are
times when more than twenty miners work on the unit. 40 FMSHRC at 869. Conversely,
it is unreasonable for our colleagues to suggest that the Secretary’s assertion
that there could be more than 15 miners present on the section during mining is
“pure speculation.” Slip op. at 10.

In
the context of continuing normal mining operations, and mindful of the
production pressures inherent in mining, it would defy common sense if we were
to assume (as the majority has) that the out-going shift will have always
entirely ceased mining activity while waiting for the on-coming shift to arrive
during a “hot seat” changeover.

The Judge also correctly relied on the
language of Peabody’s emergency response plan itself, which explicitly requires
two refuge chambers with the capacity to each hold 20 miners. 40 FMSHRC at 869.
Peabody’s plan requires two chambers, but the operator now claims—and our
colleagues agree—that there will never be a time when two chambers will be
needed. [17]
Their
logic is that the unlawfully located chamber would never be needed to shield
miners from a hazard (and can therefore never form the basis of an S&S
violation). This assertion, however, is directly contrary to Peabody’s
agreement in its negotiated emergency response plan that at least two chambers
are necessary . Notably,
Peabody does not challenge the Judge’s finding that it violated its plan. 

In effect, the
claim that only one rescue chamber is ever needed is an indirect attack against
the plan provision itself. However, the plan’s mandate has the legal effect of
a mandatory standard. See Wyoming Fuel Co. , 16 FMSHRC 1618, 1624 (Aug.
1994) (“Once a ventilation plan is approved and adopted, its provisions and
revisions are enforceable as mandatory standards.”); see also UMWA v.
Dole , 870 F.2d 662, 671 (D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe ,
536 F.2d 393, 409 (D.C. Cir. 1976); Freeman United Coal Mining Co. , 11
FMSHRC 161, 164 (Feb. 1989); Jim Walter Res., Inc. , 9 FMSHRC 903, 907
(May 1987). Hence, the effort to negate the provision of the operator’s
emergency response plan is analogous to attacking the validity of a mandatory
safety standard in the context of an enforcement proceeding. [18]

Moreover, the majority’s reliance on
testimony that during a hot seat change there is no mining activity because at
that time the miners “typically” are ready to go home (slip op. at 7) hardly
explains away the need for the two chambers required by the operator’s plan. It
also ignores the possibility that an explosion may occur even in the absence of
active mining, as sparking and ignitions can be triggered by roof bolts
breaking during a roof fall. Twentymile Coal Co. , 36 FMSHRC 1533, 1537 (June 2014)
(inspector testified that sparking could occur from roof bolts breaking during
a roof fall); Plateau Mining Corp ., 28 FMSHRC 501, 505 (Aug. 2006) (roof
fall in the gob ignited hydrocarbons). [19]

In any
event, the operator’s contention—and the majority’s insistence—that the
violation is only S&S if an explosion would be reasonably likely to occur
during a hot-seat change (slip op. at 6-7) is entirely beside the point. Caselaw
regarding S&S violations of emergency standards makes clear that the
inquiry “should be considered in the context of the emergency contemplated by
the standard.” ICG Illinois, LLC , 38 FMSHRC 2473, 2476 (Oct. 2016). Although
our colleagues give lip service to this principle, they attempt to carve out an
exception that swallows the rule.

Commission
precedent (as well as guidance from the D.C. Circuit), makes clear that when
“evaluating the significant and substantial nature of violations of emergency
safety standards . . . [we] assume the existence of the contemplated
emergency.” Cumberland Coal Res. LP v. Fed. Mine Safety & Health Review
Comm’n , 717 F.3d 1020, 1025 (D.C. Cir. 2013), aff’g Cumberland Coal Res. ,
33 FMSHRC 2357 (Oct. 2011). This is because “[e]vacuation standards are
different from other mine safety standards. They are intended to apply
meaningfully only when an emergency actually occurs.” 33
FMSHRC at 2367 . In Cumberland , the operator was cited for S&S
violations of the lifeline requirement. The Commission found the violations
S&S and the operator appealed. The Court rejected the operator’s view that
an emergency should not be assumed, reasoning that without such an assumption,
“ it would appear unlikely that any violation of
those standards would ever be ‘significant and substantial.’” 717 F.3d at
1027. [20]

Under
Cumberland and Commission caselaw, we assume the existence of an
emergency (an explosion or fire) in evaluating the hazard in step 2 (the
inability to access the refuge chamber in a life-threatening environment when
escape from the mine is not possible). [21] As the
Commission stated in ICG Illinois , “[t]he likelihood that the emergency
will actually occur is irrelevant to the Mathies inquiry. . . . The
standard at issue is intended to apply in the context of an emergency so severe
as to make evacuation impossible, survival outside the refuge unlikely, and
travel extremely difficult in the face of smoke, debris, and possible injury.” 38
FMSHRC at 2476-77

In
ICG , the operator was charged with placing a refuge chamber 1,110 feet
from the nearest working face, in violation of a safety standard requiring that
the chamber be located within 1,000 feet. The Commission emphasized that the
violation should be considered in the context of the emergency contemplated by
the standard and found the violation S&S.

In a
prescient comment, the D.C. Circuit in Cumberland emphasized that “the
likelihood of an emergency will usually have nothing to do with the violation
of the emergency safety standard. Thus, if the decision-maker does not assume
the existence of the emergency, then his focus must necessarily shift away from
the nature of the violation to the likelihood of the emergency.” 717 F.3d at
1027.

And yet, that is precisely where the
focus of our colleagues in the majority lies, as they analyze the likelihood of
an ignition occurring during a shift change [22] (slip op.
at 6-7) and fix on the narrow inquiry as to whether activity leading to an
explosion might occur “during the operative period.” Slip op. at 8. This is
exactly the wrong inquiry. Our colleagues acknowledge that an emergency must be
assumed— except an emergency that occurs during a shift change (when there
would be too many miners to fit into one rescue chamber). This contention finds
no support in our caselaw, which may come as surprising news to readers of the
majority opinion, focused as it is on whether and when “activities capable of
igniting methane” took place. Slip op. at 10. [23]

ICG
teaches us not to cherry-pick the timing of the emergency that is assumed. Here,
the majority insists that no explosion or fire could occur during the shift
change (despite the Judge’s finding that work could be performed during a
hot-seat change, 40 FMSHRC at 869). However, in ICG , we emphasized that
the inspector charging the S&S violation correctly assumed “a ‘disaster’ or
‘worst case scenario’ when making his S&S determination.” 38 FMSHRC at 2476.
Here, the “worst case scenario” is a situation where, assuming an emergency
such as a fire or explosion that renders the refuge chamber at issue unusable
and makes escape from the mine impossible, more than 20 miners are in need of
shelter (either due to a shift change or to other circumstances).

The
Commission decision in Spartan Mining Co. , demonstrates the importance
of assuming an emergency when deciding whether a violation of an emergency
response standard is S&S. In Spartan , a unanimous
Commission affirmed the decision of the Judge holding that escapeway standard
violations were S&S. Notably, in Spartan, the parties stipulated that “ at
the times of the violations , an emergency requiring
evacuation was not reasonably likely to occur. ”
35 FMSHRC 3505, 3507 (Dec. 2013) (emphasis added). [24]
The Commission quickly rejected the operator’s contention that this stipulation
rendered an S&S finding impossible, noting that “[j]ust as the need for a
lifeline in Cumberland would arise only in the event of an emergency,
the need for adequate escapeways will only arise in the context of an emergency
evacuation from the mine.” Id . at 3509.

Not only do our colleagues misapply established case
law regarding when an emergency should be assumed, but they also turn other
longstanding S&S precedent on its head. They state that the Secretary did
not demonstrate the existence of “any mining activities that could cause an
explosion occurring while there were more than 20 miners on the section, and
thus, failed to prove step three of the Mathies test.  Slip op. at 10. However,
as just discussed, we must assume throughout the S&S inquiry that an
emergency—the explosion—has occurred. In addition, at step three we must assume
that the hazard—insufficient shelter space —also occurs.

The majority errs by deciding the record
compels the conclusion that an explosion could never occur at a time shelter
would be needed by more than 20 persons at the face (in addition to a given
production crew, maintenance crews, inspection parties, engineers, etc.). Not
only is that conclusion unreasonable, it is inconsistent with our precedents
directing us to assume the existence of the hazard at step three of the Mathies
test. Those precedents wisely prohibit us from entertaining hypotheses as to
whether the hazard would have occurred. [25] Thus the proper
inquiry at this step is whether, assuming an explosion (the emergency) and the
insufficiency of adequate space in the refuge chambers (the hazard), there is a
reasonable likelihood of injury. [26]

In
sum, under the majority’s reasoning, the Secretary could never prove that a
violation of this emergency response provision was S&S unless he
demonstrated that at the exact time when more than twenty miners would be
working at the face there was a reasonable likelihood of an ignition followed
by an explosion of such force and specific character that it would render the
subject rescue chamber unusable. The Secretary’s burden of proof under the Mathies
test does not require this level of granularity of detail in evidence, which
would make it nearly impossible for the Secretary to demonstrate that a
violation of this critically important emergency standard is significant and
substantial. Moreover, it is unlikely even the most thorough expert forensic
testimony could ever establish what the majority would accept as a “reasonable
likelihood” of a precisely timed ignition followed by a sufficiently large
explosion. We must not require the Secretary to satisfy our judicial
imaginations that there was a reasonable likelihood of the occurrence of an
event the courts have clearly instructed us to assume. We undermine enforcement
of the Act by demanding this sort of fool’s errand to establish that the
operator’s failure to locate refuge chambers consistent with the Secretary’s
standards and its own emergency plan is a serious and substantial violation.

For the
foregoing reasons, we respectfully dissent.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Commissioner

[1] The S&S terminology is taken
from section 104(d)(1) of the Act, which distinguishes as more serious any
violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).

[2] In its Petition
for Discretionary Review, Peabody notes that while it does not contest the
unwarrantable failure finding, the citation was classified as a section
104(d)(1) citation. If the S&S designation is deleted, Peabody further
notes that the citation must be reclassified as a section 104(a) citation as a
matter of law. PDR at 2 n.2. We agree.

[3] Refuge chambers
(also called “refuge alternatives”) provide shelter to miners during a
catastrophic emergency where escape may not be possible. The chambers are
equipped with tools, supplies, communication equipment, and oxygen sufficient
to sustain miners for 96 hours while awaiting rescue. See 30 C.F.R. § 75.1506.

[4] In his brief,
the Secretary suggests a desire to abandon nearly 40 years of precedent
regarding the National Gypsum “reasonably likely” standard in favor of
lay terminology of “somewhat likely” mentioned in dicta by the United States
Court of Appeals for the Fourth Circuit. Knox Creek Coal Corp. v. Sec’y of
Labor, 811 F.3d 148, 162 (4th Cir. 2016). There, the Circuit Court did
not say that Step 2’s analysis would be satisfied by a finding that the
hazard would be “somewhat likely” to materialize. Instead, the Court observed
that, “ the second prong of Mathies
requires proof that the violation in question contributes to a ‘discrete safety
hazard,’ which implicitly requires a showing that the violation is at least
somewhat likely to result in harm.” 811 F.3d at 163. The Court was not focused
upon the Commission’s longstanding “reasonably
likely” analysis in National Gypsum and subsequent cases. At oral
argument in this case, the Secretary was unable to identify a principled,
intended difference between the two phrases, insufficiently claiming only that
the “somewhat likely” standard would garner more S&S findings—a convenient
litigating position. The Knox Creek court, however, refused to provide
deference to such convenient litigating positions under Chevron U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837 (1984). 811 F.3d at 159-60.
The Secretary has advanced no rationale at all for overthrowing the recent
majority decision of the Commission reaffirming “reasonably likely” in Newtown ,
let alone a persuasive argument that would satisfy the threshold for Skidmore
deference. We thus reject the substitution of the phrase “somewhat likely”
based upon our sound precedent of “reasonably likely” as the proper S&S
standard.

[5]
Disregarding stare decisis and overstating the Fourth Circuit’s dicta in
Newtown , Commissioner Jordan continues to agitate for the practically
indecipherable term “at least somewhat likely” as a substitute for “reasonably
likely,” a term that has been used in forty years of case law. Slip op. at 13 n.

4. The majority decision rejecting this approach in Newtown is not a
   “new formulation.” Id. It simplifies and states more descriptively the
   separate “cause” and “effect” functions of steps 2 and 3 of Mathies in
   line with the description of “significant and substantial” in section 104(d)(1)
   of the Mine Act .

[6] The dissent notes
that “[t]raditionally, a ‘hot seat’ change requires a miner to remain at his or
her position until he is relieved by a miner on the following shift.” Slip op. at
14 n.5. However, this was not the practice at this mine. Mr. Barras testified,
without rebuttal, that in a hot seat change the miners stay “on the unit” and
“that they’re really ready to go home, and they’re sitting out closer to the
man trip and see [the next shift] come in.” Tr. 82-83. This directly
contradicts any notion that the miners were at their mining positions, let
alone working at such positions when the oncoming crew arrives. The facts do
show that at shift change there are more than 20 miners on the section. However,
the facts also show that no mining was occurring that could cause an explosion.
Our dissenting colleagues simply do not see, or refuse to acknowledge, the
difference and its importance to the S&S evaluation.

[7] As such,
machinery that could conceivably trigger an explosion—haulage vehicles and the
continuous miner—are not in operation. Additionally, Barras testified that the
policy decision to cease production during the shift changes was instituted to
avoid miners being injured by vehicles bringing the next shift to the section. Tr.
80-84.

[8] The Secretary
did not introduce any evidence showing that the man-trips bringing miners to
the section could constitute an ignition source.

[9] In a resort to hyperbole,
the dissent argues that our construction means an exception that “swallows the rule.”
Slip op. at 16. It is difficult to fathom this false proposition. This opinion
does not propose any “exception.” We enforce the longstanding S&S standard.
Here, as we have stated throughout our opinion, we assume an explosion may
occur during mining, and that the refuge chamber placed improperly in this mine
would be destroyed or unusable. We are not willing to assume without evidence,
however—and here none was presented—that an explosion will occur in the absence
of active mining operations at this otherwise compliant work face. As noted
previously, our position is entirely consistent with Cumberland and ICG
Illinois.

[10] A working face
is any area of a coal mine where work of extracting coal is performed during the
mining cycle. 30 C.F.R. § 75.2.

[11] This language
mirrors that of the safety standard that specifies that refuge alternatives
must not be placed “within direct line of sight of the working face.” 30 C.F.R.

§ 75.1507(a)(11)(i).

[12] As the preamble
to the final rule promulgating the analogous safety standard explained:

The final rule is consistent with the NIOSH
[National Institute of Occupational Safety and Health] report, which
recommended that refuge alternatives be positioned in crosscuts, rather than
entries, or located in dead-end cuts to decrease the possibility of damage from
overpressure or flying debris from an explosion. NIOSH also recommended that
refuge alternatives be located away from potential sources of fires, such as
belt drives.

Refuge Alternatives for
Underground Coal Mines, 73 Fed. Reg. 80656, 80687 (Dec. 31, 2008).

[13] Commissioner
Jordan notes that the majority articulates a new formulation of the Mathies
test. Slip op. at 5. Applying the facts in the record and properly assuming an
emergency, she believes that the outcome of this case is the same under either
standard.

Moreover, for
reasons stated in her separate opinion in Newtown Energy, Inc. , 38
FMSHRC 2033, 2051-52 (Aug. 2016), Commissioner Jordan would follow the analysis
utilized by the Fourth Circuit in Knox Creek Coal Corp. v. Sec’y of Labor ,
811 F.3d 148, 162 (4th Cir. 2016), which held that the Secretary establishes a
contribution for the purposes of the second step of Mathies when he
shows that the violation is “at least somewhat likely to result in harm.”

As she stated in
her opinion in Newtown :

In  Knox Creek , the Fourth Circuit held that the
Secretary establishes a “contribution” for the purposes of the second step
of  Mathies  when he shows that the violation is “at least
somewhat likely to result in harm.”  Knox Creek , 811 F.3d at
162, 163 . Similarly, in  Peabody Midwest
Mining, LLC v. FMSHRC , the Seventh Circuit held that “[a] violation is
significant and substantial if it  could  lead to some discrete
hazard, the hazard was reasonably likely to result in injury, and the injury
was reasonably likely to be reasonably serious.”  762 F.3d 611, 616
(7th Cir. 2014) (emphasis added). We find the
standard put forth by the Fourth and Seventh Circuits to be similar and would
apply this standard of proof for the second step  of Mathies.  In
short, a violation “contributes” if it is at least somewhat likely to result
in, or could result in, a safety hazard. In adopting this language, we note
that this standard is in harmony with the wording of section 104(d) of the Mine
Act.  30 U.S.C. § 814(d)(1)  (“[S]uch
violation is of such nature as  could significantly and
substantially contribute to the cause and effect of a … safety or health hazard
….”) (emphasis added).

38 FMSHRC at 2052.

[14] Traditionally, a “hot seat” shift change requires a miner to
remain at his or her position until he or she is relieved by a miner on the
following shift. See Rag Cumberland Res. , 26 FMSHRC 639, 643 n.9 (Aug.
2004). The miner’s “seat” on the idling machine remains “hot” during the
change.

[15]
When reviewing a Judge’s factual determinations under the substantial evidence
standard, we ask whether there is “‘such relevant evidence as a reasonable mind
might accept as adequate to support [the Judge’s] conclusion.’ Substantial
evidence has been found to be more than a scintilla, but less than a
preponderance of the evidence. The Commission has recognized that the
‘possibility of drawing two inconsistent conclusions from evidence does not
prevent an administrative agency’s finding from being supported by substantial
evidence.’” Alcoa World Alumina, LLC , 40 FMSHRC 655, 661 n.11 (May 2018)
(citations omitted).

[16] The crews were
identified by letters of the alphabet. Tr. 82.

[17] The majority
states that the Secretary’s suggestion that there could be some reason for more
than 15 miners to be present on the section during mining is “pure
speculation.” Slip op. at 10. However, the requirement in Peabody’s plan that
two rescue chambers be available belies this accusation.

[18] Challenges to
safety standards are governed by section 101(d) of the Mine Act, 30 U.S.C. § 811(d),
which provides that only the courts of appeals have jurisdictions to hear such
cases. As to provisions of emergency response plans to which an operator might
object, they are resolved pursuant to section 316(b)(2)(G)(ii) of the Mine Act,
30 U.S.C. § 876(b)(2)(G)(ii), which states that if there is a dispute between
an operator and the Secretary over a plan provision, the Secretary must issue a
citation. Emerald Coal Res., LP , 29 FMSHRC 956, 961  n. 7 (Dec. 2007). Nothing
in the record indicates that the requirement to provide two rescue chambers was
ever disputed by the operator when it negotiated its plan with MSHA.

[19] In his
testimony, the inspector explained that if there were to be an explosion, it
would travel out by the working face and could damage the refuge chamber. Tr.

42. The inspector stated that on the citation he marked the expected injury as
    “fatal” because there is no way to tell when an explosion would occur, and one
    could occur during a shift change. Tr. 43-44 (“I don’t know when an explosion
    would happen. I don’t know when an explosion will not happen, so the mine has
    to maintain both chambers in the event that an explosion happens during shift –
    shift change”). Furthermore, as the Commission stated in ICG Illinois, LLC ,
    “[i]t is of course impossible to predict the time, location, nature or severity
    of a mine disaster.” 38 FMSHRC 2473, 2479 (Oct. 2016).

[20] In Cumberland ,
a unanimous Commission rejected the operator’s argument—echoed by the majority
here (slip op. at 8-9)—that if the Judge evaluated the S&S determination in
the context of an emergency, every violation of an evacuation standard would be
S&S. 33 FMSHRC
at
2368. We also pointed out the somewhat unremarkable proposition that “if the
violations had instead been relatively minor in nature and scope, a fact-finder
may well not have found the violations [S&S].”  Id .

[21] Notwithstanding
the majority’s characterization (slip op at 6), the Secretary correctly
identified the emergency (“an explosion originating in the working face that
traps miners and forces them to seek shelter in the refuge chamber,” Sec’y Resp.
Br. at 20), and the hazard itself (“the inability to access a functioning or
operational refuge chamber in a life-threatening environment when escape from
the mine is not possible.” Id . at 18-19).

[22] Specifically,
the majority states that there was insufficient evidence to demonstrate that
the location of the refuge chamber at issue “was reasonably likely to result in
the absence of a refuge alternative, and consequently, an injury of a
reasonably serious nature.” Slip op. at 10. Their statement is consistent with
the majority’s holding in Newtown . However, in their S&S evaluation
the majority reconsiders the reasonable likelihood of an emergency situation
happening under a specific factual context. In doing so they erred. Cumberland ,
33 FMSHRC at 2366 (“The Commission has never required the establishment of the
reasonable likelihood of a fire, explosion, or other emergency event when
considering whether violations of evacuation standards are S&S.”). Case
precedent is clear that we must assume an emergency throughout the S&S
analysis. See, e.g., Spartan Mining Co ., 35 FMSHRC 3505, 3509 (Dec.
2013) (holding it is not necessary for the Secretary to prove the likelihood of
an emergency at step three); ICG Illinois , 38 FMSHRC at 2480 (stating
that, assuming the occurrence of an emergency the disaster would be fatal under
[a step four analysis]).

[23] The majority’s
willingness to assume an emergency has its convenient limits. Although there is
no precedent for refusing to assume an emergency only during a particular
timeframe or under certain conditions, our colleagues nonetheless state
categorically that they “are not willing to assume without evidence . . . that
an explosion will occur in the absence of active mining operations.” Slip op. at 9 n.
9.

[24] Thus, our
precedent recognizes that we must assume an emergency even if it is not
reasonably likely to occur. In an attempt to depart from our case precedent,
our colleagues nonetheless argue that a second chamber is never needed during
production because only 15 miners would be present. Slip op. at 7-8. We are not
ready to say with certainty that, assuming normal mining operations would
continue, U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574-75 (July 1984), the
operator’s asserted practice would always be followed. Indeed, as noted above,
the operator’s own safety director testified there are times there may be more
than 20 miners at the face. Tr. 81-82. We do not hope against the worst case
scenario emergency, we assume it.

[25] As the Fourth
Circuit has emphasized:

Every federal
appellate court to have applied  Mathies  has also assumed the
existence of the relevant hazard when analyzing the test's third prong. See Peabody
Midwest,  762 F.3d at 616 (“[T]he question [presented by  Mathies’  third
prong] is not whether it is likely that the hazard . . . would have occurred;
instead, the ALJ had to determine only whether, if the hazard occurred
(regardless of the likelihood), it was reasonably likely that a reasonably
serious injury would result.”);  Buck Creek,  52 F.3d at 135
(accepting as sufficient for satisfying  Mathies’  third prong
the ALJ's finding “that  in the event of  a fire [i.e., the
relevant hazard], smoke and gas inhalation by miners in the area would cause a
reasonably serious injury requiring medical attention” (emphasis added));  Austin Power,  861
F.2d at 103-04 (finding  Mathies’  third prong satisfied where a
workplace fall, i.e., the relevant hazard, was from a height of thirty-six feet
and so “would almost certainly result in serious injury,” without requiring
evidence that a fall itself was likely);  cf. Cumberland Coal Res.,
LP v. Fed. Mine Safety & Health Review Comm’n,  717 F.3d 1020,
1025–27 (D.C. Cir. 2013) (accepting the Secretary's interpretation that
the  Mathies  test allows the decision-maker to assume the
existence of an emergency when evaluating whether the violation of an emergency
safety standard is S & S).

Knox
Creek Coal Corp. , 811 F.3d at161–63.

[26] The majority’s
reliance on the presence of the second rescue chamber also contradicts our
longstanding case precedent that redundant safety measures do not mitigate
S&S findings for violations of emergency standards. See, e.g. ,
ICG Illinois , 38 FMSHRC at 2481-82; Black Beauty Coal , 36 FMSHRC
1121, 1125, n.5 (May 2014). In ICG , the Commission rejected the
operator’s argument that the presence of self-contained self-rescuers was a
mitigating factor in the S&S analysis. We relied on the D.C. Circuit’s
opinion in Cumberland Coal Resources in which the Court explained that
“assuming the existence of an emergency in which a lifeline would be necessary
also assumes an emergency in which all of the redundant safety measures   . . .
have failed.” 33 FMSHRC at 2481-82, quoting 717 F.3d at 1028-29. “Here,”
noted the Commission in ICG , “the same principle applies.” Id . at
2482. More recently, in Consolidation Coal Co. , the Court emphasized
that “[w]hen deciding whether a violation is [significant and substantial],
courts and the Commission have consistently rejected as irrelevant evidence
regarding the presence of safety measures designed to mitigate the likelihood of
injury resulting from the danger posed by the violation.” 895 F.3d 113, 118
(D.C. Cir. 2018), quoting Brody Mining, LLC , 37 FMSHRC 1687, 1691
(Aug. 2015).