United States Steel Mining Company, Inc.

Plain-English summary

United States Steel Mining operated an underground coal mine where a trolley wire safeguard was intended to prevent equipment from losing power because of excessive kinks, bends, twists, or a wide track-to-wire gauge. The Commission held that the violation was significant and substantial under the Mathies test. It rejected the argument that “reasonable likelihood” means an injury is more probable than not, and found substantial evidence that loss of brakes, lights, and communication, along with other hazards, could reasonably lead to serious injury. The Commission affirmed the ALJ’s S&S determination.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1403
• Outcome: The S&S determination was affirmed.
• Key point: The S&S reasonable-likelihood element does not require proof that injury was more probable than not.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

                                        June 20, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 92-783
:
UNITED STATES STEEL MINING :
COMPANY, INC. :

BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners1

                                         DECISION

BY: Jordan, Chairman; Holen and Riley, Commissioners

     This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), is before the Commission for the
third time and raises the question of whether a violation by United States Steel Mining Company
(“U.S. Steel”) of a trolley wire transportation safeguard issued under 30 C.F.R. § 75.14032 was
significant and substantial (“S&S”).3 In the decision now before us, Administrative Law Judge
William Fauver concluded that the violation was S&S. 16 FMSHRC 1189 (May 1994) (ALJ).
The Commission granted U.S. Steel’s petition for discretionary review, which challenges the

   1
    Commissioner Doyle participated in the consideration of this matter but resigned from

the Commission before its final disposition.
2
Section 75.1403, entitled “Other safeguards,” provides:

                    Other safeguards adequate, in the judgment of an authorized
            representative of the Secretary, to minimize hazards with respect
            to transportation of men and materials shall be provided.
   3
      The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.

§ 814(d)(1), which distinguishes as more serious in nature any violation that “could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard . . . .”

                                                  862

Page 2

judge’s S &S determination. For the reasons that follow, we affirm the judge’s decision.

                                                   I.

                                Factual and Procedural Background

     The facts of this case are fully set forth in the Commission’s first decision in this matter,

15 FMSHRC 2445 (December 1993), and are summarized here. Id. at 2445-46. On May 23,
1989, James Bowman, an inspector with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”), issued U.S. Steel a safeguard notice at its Gary No. 50 Mine, an
underground coal mine in Wyoming County, West Virginia. Id. The notice required that, to
prevent de-energizing of track equipment, all trolley wire be installed without excessive kinks,
bends, and twists. Id. at 2446. It also required that the trolley wire be installed within a gauge
where anti-swing devices could be used on all equipment. Id. On February 4, 1992, MSHA
Inspector Gerald Cook4 inspected the 5K track entry in a track-mounted jeep. Id. The trolley
pole disengaged and caused the jeep to lose power 15 times. Id. Cook determined that the
causes of the trolley pole disconnections were kinks in the wire and a wide gauge between the
track and wire. Id. Inspector Cook issued U.S. Steel a citation for violation of the safeguard
and designated the violation S&S. Id.; Gov’t Ex. 1. U.S. Steel contested the violation and
proposed civil penalty. 15 FMSHRC at 2446.

     The judge rejected U.S. Steel’s contention that the safeguard was invalid and found that

the cited conditions violated the safeguard. 15 FMSHRC 452, 457 (March 1993) (ALJ). In
concluding that the violation was S&S, the judge stated that the test was “whether the violation
presents a substantial possibility of resulting in injury or disease . . . .” Id. at 456 (emphasis in
original). The Commission granted U.S. Steel’s petition for discretionary review, which
challenged the judge’s determinations that the safeguard was valid and that the violation was
S&S.

     The Commission affirmed the judge’s ruling that the safeguard was valid and that U.S.

Steel violated it. 15 FMSHRC at 2447-48. The Commission concluded, however, that the
judge erred in his S&S analysis by applying a “substantial possibility” test. Id. at 2448. The
Commission remanded the case for proper application of the third element of the S&S test set
forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), whether there was a reasonable
likelihood that the hazard contributed to would result in an injury. 15 FMSHRC at 2448
(emphasis added).

    On remand, the judge determined that “reasonable likelihood,” as used in the third

element of the Mathies test, does not mean proof that an injury was “more probable than not.”

   4
      Inspector Gerald Cook is incorrectly identified in the transcript and by the judge as Earl

Cook. Compare Tr. 51-52; 15 FMSHRC 452, 453 (March 1993) (ALJ); PDR at 2 (erroneous
references to Earl Cook) with Gov’t Ex. 1 (citation signed by Gerald Cook); S. Br. at 3 n.2
(noting erroneous references). Earl Cook was the U.S. Steel official to whom Inspector Bowman
issued the notice to provide safeguard. Tr. 22; Gov’t Ex. 3.

Page 3

16 FMSHRC 829, 831-32 (April 1994) (ALJ). He certified this ruling for review by the
Commission. Id. at 832-33. The Commission denied review and directed the judge to issue a
final disposition pursuant to its remand instructions. 16 FMSHRC 1043, 1044 (May 1994).

      In the decision on review, the judge rejected U.S. Steel’s view that “reasonable

likelihood” means “more probable than not.” 16 FMSHRC at 1190. He concluded that an S&S
violation is not to be defined “in terms of a percentage of probability.” Id. at 1190-91(citation
omitted). The judge concluded that violation of the safeguard was S&S, concluding that the
reliable evidence supported Inspector Cook’s testimony that, taken as a whole, the hazards
presented by the violation made it reasonably likely that serious injuries would result. Id. at
1193.

                                             II.

                                         Disposition

      U.S. Steel argues that, to satisfy the third Mathies element, the Secretary must prove

that it was “more probable . . . than not” that the hazard contributed to by the violation will
result in an injury. PDR at 5. U.S. Steel also argues that substantial evidence does not support
the judge’s S &S determination. Id. In its view, the disconnection of a pole from the trolley
wire does not contribute to a “discrete safety hazard,”5 and it was not reasonably likely that the
cited condition could result in an injury. Id. at 5-6.

     The Secretary argues that the judge applied the “reasonable likelihood” element of

Mathies and properly concluded the violation was S&S. S. Br. at 6-12. He emphasizes that the
Commission has never held that “reasonable likelihood” requires a showing that it is “more
probable than not” that injury or illness will occur. Id. at 7. He contends that such a
construction is inconsistent with the Mine Act, its legislative history, and Commission case law.
Id. at 7-12. The Secretary also argues that substantial evidence supports the judge’s
determination that the violation was S&S. Id. at 12-13.

      Under the Commission’s test, a violation is S&S if, based on the particular facts

surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Div., Nat’l Gypsum Co., 3

   5
       U.S. Steel thus also argues that the violation is not S&S because the Secretary failed to

prove the second element of the Mathies test, i.e., whether there was a safety hazard contributed
to by the violation. Review of the second Mathies element, however, is not before the
Commission. U.S. Steel did not raise the second Mathies element in its first petition for review in
this matter and the Commission remanded the proceeding to the judge only for proper application
of the third element, 15 FMSHRC at 2448. The judge’s jurisdiction was therefore limited to that
issue. See Ronny Boswell v. National Cement Co., 15 FMSHRC 935, 937 (June 1993).

                                            864

Page 4

FMSHRC 822, 825-26 (April 1981). In Mathies, 6 FMSHRC at 3-4, the Commission further
explained:

                   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.

See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power,
Inc. v. Secretary of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988) (approving Mathies criteria).
An evaluation of the reasonable likelihood of injury should be made assuming continued normal
mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). The
Secretary bears the burden of proving that a violation is S&S. See, e.g., Peabody Coal Co., 17
FMSHRC 26, 28 (January 1995), citing Union Oil Co. of Cal., 11 FMSHRC 289, 298-99
(March 1989).

           A. Whether the Judge’s S &S Analysis Was Erroneous

     We agree with the judge that the third element of the Mathies test does not require the

Secretary to prove it was “more probable than not” an injury would result. See 16 FMSHRC at
1190-93. The legislative history of the Mine Act indicates Congress did not intend that the most
serious threat to miner health and safety, an imminent danger, be defined in terms of “a
percentage of probability.” S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 626 (1978). We do
not find error in the judge’s conclusion that, because an S&S violation under the Mine Act is
less serious than an imminent danger, it is also not to be defined in terms of percentage of
probability. 16 FMSHRC at 1191. Furthermore, Commission precedent has not equated
“reasonable likelihood” with probability greater than 50 percent. A “more probable than not”
standard would require the Secretary, in order to prove a violation is S&S, to prove it is likelier
than not that the hazard at issue will result in a reasonably serious injury. We reject such a
requirement.

     U.S. Steel relies on a judge’s decision in Texasgulf, Inc., 9 FMSHRC 748, 759-61, 763

(April 1987) (ALJ), to the effect that “reasonably likely” must be regarded as synonymous with
“probable.” PDR at 5. Although the Commission affirmed the judges’s determination that the
violation was not S&S, it did not endorse the judge’s probability analysis. Texasgulf, Inc., 10
FMSHRC 498, 500-04 (April 1988). The Commission specifically declined to revisit the S&S
test, as set forth in Nat’l Gypsum and Mathies. Id. at 500 n.4.

                                           865

Page 5

    Accordingly, we conclude that the judge did not err when he found that the term

“reasonable likelihood” does not mean “more probable than not.” 16 FMSHRC at 1193.

       B. Whether Substantial Evidence Supports the Judge’s S &S Conclusion

      We conclude substantial evidence supports the judge’s determination that the violation

was S&S.6 Inspector Cook cited 15 hazardous locations. Gov’t Ex. 1. The area in which the
violation occurred was lower in height than other areas of the mine and was uneven, with grades
and swags, increasing the likelihood of injuries resulting from a disconnected trolley pole. 16
FMSHRC at 1193. When a trolley pole disengages, the vehicle is deenergized, resulting in an
immediate loss of lights, communication, and electrically powered brakes. Id. Much of U.S.
Steel’s equipment has electrically powered brakes. Tr. 15. Although the operator represents
that its vehicles have a hydraulic brake backup system (PDR at 5), Inspector Cook testified that
he had never seen a jeep with hydraulic brakes stop after the trolley pole disengaged. Tr. 102-

3. Inspector Bowman similarly testified that he had issued many citations for failing hydraulic
   braking systems. Tr. 122. Further, a vehicle that lost its lights at a dip in the track would not be
   seen by drivers of other vehicles. 16 FMSHRC at 1193. A vehicle without communication
   would be unable to report its location to the dispatcher or request assistance. See Tr. 127; PDR
   at 5.

    In addition, disengaged trolley poles can dislodge or strike rocks in the roof. 16
   

   FMSHRC at 1193. The rocks may strike miners or cause sparks that could ignite methane. Id.
   See also Tr. 15, 58-59, 102. Inspector Bowman testified that this mine liberated approximately
   two million cubic feet of methane in a 24-hour period. Tr. 16. Moreover, the record indicates
   that disconnected trolley poles, even with anti-swing devices, are capable of causing injury,
   including breaking an arm, if a miner reaches out for the pole. Tr. 112, 119; see also Tr. 15.

   We are unpersuaded by U.S. Steel’s argument that an injury-producing event is not
   

   reasonably likely because the vehicle is deenergized for only 15 to 20 seconds until the operator
   replaces the pole. PDR at 5; Tr. 125. Taken together, the loss of brakes, lights, and

   6
   The Commission is bound by the substantial evidence test when reviewing an
   administrative law judge’s factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial
   evidence” means “such relevant evidence as a reasonable mind might accept as adequate to
   support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
   (November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
   we do not lightly overturn a judge’s factual findings and credibility resolutions, neither are we
   bound to affirm such determinations if only slight or dubious evidence is present to support them.
   See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest
   Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by the
   settled principle that, in reviewing the whole record, an appellate tribunal must also consider
   anything in the record that “fairly detracts” from the weight of the evidence that supports a
   challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

                                           866
   

Page 6

communication for even 15 to 20 seconds support the judge’s conclusion that an injury was
reasonably likely to occur. We reject U.S. Steel’s argument that the violation was not S&S
because Cook completed his journey through the mine without taking action to eliminate the
hazard. PDR at 6. Immediate abatement of a violation is only required when the condition
observed results in a withdrawal order. Citations, on the other hand, even those designated
S&S, “fix a reasonable time for the abatement of the violation.” 30 U.S.C. § 814(a). We also
reject U.S. Steel’s contention that the Secretary failed to prove the violation was S&S because
he offered no evidence that anyone has ever been injured by a pole equipped with an anti-swing
device disengaging from a trolley wire. PDR at 6. The fact that injury has been avoided in the
past or in connection with a particular violation may be “fortunate, but not determinative.”
Ozark-Mahoning Co., 8 FMSHRC 190, 192 (February 1986).

                                           III.

                                       Conclusion

    The judge did not err in applying the “reasonable likelihood” test set forth in the third

element of Mathies, and substantial evidence in the record supports the judge’s conclusion that
the violation was S&S. Accordingly, we affirm the judge’s determination that U.S. Steel’s
violation was S&S.

                                          Mary Lu Jordan, Chairman




                                          Arlene Holen, Commissioner




                                          James C. Riley, Commissioner




                                           867

Page 7

Commissioner Marks, concurring in result:

    My colleagues have concluded that the violation in issue was “significant and

substantial,” (“S&S”). I agree and concur in that result. However, I vigorously disagree with
the majority’s refusal to consider the core issue, i.e., that there is a compelling need to provide a
clear, unambiguous interpretation of the statutory term “significant and substantial.”

    In reaching their conclusion, the majority has applied the so-called “Mathies test,” which

is an amplification of the Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822 (April 1981)
decision, wherein the Commission enunciated its interpretation of S&S. After careful
consideration of this matter I have concluded that the Commission majority in both Nat’l
Gypsum and Mathies Coal Co., 6 FMSHRC 1 (January 1984) erred, and that the time for re-
examination of this vital issue is long overdue.

    The procedural history of this U.S. Steel case is, in many ways, illustrative and indicative

of the chronic enforcement and adjudicative quagmire that has been spawned since the ill
conceived Nat’l Gypsum decision was issued. The violation in this case was issued on February
4, 1992. Since that time, the case has been before the judge and Commission three times! In
each instance the issue related to the third element of the Mathies test which requires the
Secretary to prove that “a reasonable likelihood that the hazard contributed to will result in an
injury.” Mathies, 6 FMSHRC at 3-4.
Because that phrase is manifestly ambiguous, and because U.S. Steel argued for a
different interpretation, the judge attempted to set forth a clarifying interpretation of both the
statutory language and the Commission’s decisions by posing “a practical and realistic question,
whether the violation presents a substantial possibility of resulting in injury or disease, not a
requirement that the Secretary of Labor prove that it is more probable than not that injury or
disease will result.” 15 FMSHRC 452, 456 (March 1993) (ALJ) (emphasis in original) (citations
omitted). U.S. Steel objected and filed a petition for discretionary review, which was granted.
The Secretary, however, considered the judge’s formulation to be an attempt “to use more
familiar language that reflected the Commission’s practical application of the test.” S. Br. at 18.

    Clinging to the shopworn status quo, and apparently without revisiting the merits of the

underlying problem, i.e., that the third Mathies element is seriously deficient, the Commission
responded by concluding that the judge erred, and by instructing him to apply the “reasonable
likelihood” Mathies standard. 15 FMSHRC 2445, 2448 (December 1993).

    On remand the judge determined that the parties continued to be sharply divided in their

interpretations of the third Mathies element and that “[T]he Commission has not resolved this
issue.” 16 FMSHRC 829, 830 (April 1994) (ALJ). He went further:

   The parties’conflict is understandable because the term ‘reasonable likelihood’may

convey different meanings. To U.S. Steel, the word ‘likelihood’governs, and the term
‘reasonable likelihood’means ‘more probable than not.’ To the Secretary, the word
‘reasonable’modifies ‘likelihood’to mean a reasonable potential, not ‘more probable than not.’

                                            868

Page 8

Id. The judge then proceeded to analyze that issue and concluded that “the term ‘reasonable
likelihood’as used in the Mathies test does not mean ‘more probable than not.’” Id. at 832.
Recognizing the importance of that ruling, the judge then took the unusual step of certifying his
ruling to the Commission for interlocutory review. Id. at 832-33.

     Regrettably, the Commission declined yet another opportunity to consider this important

issue. The Commission refused to grant the review,1 and directed the judge “to issue a final
disposition, on the existing record, pursuant to the Commission’s previous remand instructions.”
16 FMSHRC 1043, 1044 (May 1994).

    On remand, the judge quickly complied, reiterating his previous conclusions rejecting the

“more probable than not” formulation urged by U.S. Steel and also concluding that the record
supported the issuing inspector’s conclusion that “the hazards presented by this violation made it
reasonably likely that serious injuries would result.” 16 FMSHRC 1189, 1193 (May 1994)
(ALJ).

      Once again U.S. Steel sought discretionary review seeking a ruling clarifying the

meaning of the Commission’s third Mathies element. U.S. Steel’s arguments squarely raise the
issue: what does reasonable likelihood mean? They urge a “more probable than not” meaning.
PDR at 4-5. The Secretary defends the judge’s rejection of the U.S. Steel argument. S. Br. at 6-

7. Thus, the Commission is again presented with the opportunity to better explain, and more
   clearly interpret, the statutory term of “significant and substantial.” Unfortunately, my
   colleagues have opted not to confront the obvious, which is, that the words used in the third
   Mathies element are not serving our nation’s miners, the regulated, or the regulators very well.
   The majority has chosen to narrowly dispose of the controversy in this case and to pass on this
   opportunity to provide clear direction to all potential litigants as well as to the Commission’s
   judges who have grappled with this issue since the Commission issued its two decisions.

    Accordingly, I find it necessary to disassociate myself from such a resolution. In the past
   

   year-and-one-half, the Commission has reviewed several cases that raised the very same
   question:

   1
   Although the Secretary opposed interlocutory review on procedural grounds, he
   explicitly stated that he “agrees with the judge that the legal issue presented is an important one.”
   S. Opp’n at 3.

                                            869
   

Page 9

what does reasonable likelihood mean? Moreover, since Mathies issuance in 1984,
approximately 47 Commission decisions involving S&S have been issued.2 Of those 47
decisions, over 93% of the cases related to the third Mathies element. It must be emphasized
that this high level of litigation has resulted, not from confusion regarding the meaning of the
statutory terms, but from the confusion created by the Commission’s own terms which purport
to set forth a framework for the uniform enforcement and adjudication of S&S violations.
Notwithstanding the foregoing, in the twelve years that have passed since the issuance of
Mathies, the Commission has responded by merely clutching to the same ineffective words.
That “strategy” has failed. As such, I believe the reasonable and appropriate Commission
response to this compelling indication of widespread confusion and uncertainty, is to end the
pretense that no problem exists -- confront the problem and find language that interprets S&S in
a clear, unambiguous way.

     To that end I continue to believe that the wisest course of action would have been to

defer decision in this case, and to have invited the litigants, as well as industry and union
intervenors to fully brief and orally argue this vital issue with a view toward crafting a clear
interpretation of S&S. Unfortunately, my colleagues did not support that approach. However,
because the parties in this action continue to dispute the meaning of the third Mathies element, I
render my present view on this issue. Notwithstanding the following, however, I remain ready
and willing to consider the differing views of the aforementioned parties because I believe the
S&S analysis can only benefit from such varied input.

     As I indicted above, I have concluded that the Commission’s present interpretation of

the statutory term “significant and substantial” is wrong. My conclusion is based on several
factors, not the least of which is the Mine Act itself and the compelling legislative history. Also
of great assistance is the incisive and prescient dissent of Commissioner A.E. Lawson in the
Nat’l Gypsum case.

     Everyone agrees that the Act does not define the term “significant and substantial.” Nor

does the Act contain language that sets limitations on the breadth of the violations that are to be
considered S&S, beyond the fact that Congress expressly stated that S&S violations do not
include conditions that have been determined by the Secretary to constitute an imminent danger.
30 U.S.C. § 814(d)(1). Also of significance is the fact that the Act does not contain the
disputed language found in the Commission’s third and forth Mathies test, that requires the
Secretary to prove that the violation in issue poses a reasonable likelihood of serious injury.
That is a burden that the Congress expressly rejected!

     Absent a determination that the meaning of S&S is clear on its face, a determination I am

unwilling to make, the primary basis for determining Congressional intent includes an
examination of the legislative history. In this case the evidence of that intent is clear and

   2
      Additionally, the number of S&S related petitions for discretionary review filed during

this time period, but denied, is unknown because no record of denied petitions is maintained.

                                             870

Page 10

convincing. The S&S language in the Mine Act was taken directly from section 104(c)(1) of the
predecessor Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976),
which had been the subject of important litigation before the Department of the Interior’s Board
of Mine Operations Appeals (“Board”). That litigation was expressly discussed in the Senate
Committee Report accompanying the Mine Act. Thus, the intended meaning of S&S in the
Mine Act is readily available and precisely set forth:

           The Interior Board of Mine Operations Appeals has until recently taken
   an unnecessarily and improperly strict view of the ‘gravity test’and has required
   that the violation be so serious so as to very closely approach a situation of
   ‘imminent danger.’ Eastern Associated Coal Corporation, 3 IBMA 331 (1974).

           The Committee notes with approval that the Board of Mine Operations
   Appeals has reinterpreted the ‘significant and substantial’language in Alabama
   By-Products Corp., 7 IBMA 85, and ruled that only notices for purely technical
   violations could not be issued under Sec. 104(c)(1). The Board there held that
   ‘an inspector need not find a risk of serious bodily harm, let alone death’in order
   to issue a notice under Section 104(c)(1). The Board’s holding in Alabama by-
   Products Corporation is consistent with the Committee’s intention that the
   unwarranted failure citation is appropriately used for all violations, whether or
   not they create a hazard which poses a danger to miners as long as they are not
   of a purely technical nature. The Committee assumes, however, that when
   ‘technical’violations do pose a health or safety danger to miners, and are the
   result of an ‘unwarranted failure’the unwarranted failure notice will be issued.

S. Rep. No.181, 95th Cong., 1st Sess. 31 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 619 (1978) (“Legis. Hist.”).

    In the referenced, overruled Eastern Associated Coal case, the Board had concluded that

violations designated S&S had to pose a “probable risk of serious bodily harm or death.” 3
IBMA at 334. Subsequently, the Board reversed itself and concluded that the S&S terms:

   when applied with due regard to their literal meanings, appear to bar issuance of
   notices under section 104(c)(1) in two categories of violations, namely, violations
   posing no risk of injury at all, that is to say, purely technical violations, and
   violations posing a source of any injury which has only a remote or speculative
   chance of coming to fruition. A corollary of this proposition is that a notice of
   violation may be issued under section 104(c)(1) without regard for the
   seriousness or gravity of the injury likely to result from the hazard posed by the
   violation, that is, an inspector need not find a risk of serious bodily harm, let
   alone of death.

Alabama By-Products, 7 IBMA at 94. As indicated, that holding was cited with approval in the

                                          871

Page 11

Senate Committee Report. Legis. Hist. at 619. The Alabama By-Products decision also
contained a separate opinion by Administrative Judge Howard J. Schellenberg, Jr. wherein he
concurred in result by expressly joining his colleagues in concluding that the Board’s prior
interpretation of section 104(c), as stated in Eastern Associated Coal, “was in error.” 7 IBMA
at 97. He then indicated “I would have preferred to adopt as a guideline, . . . that the pertinent
phrase be interpreted to mean, ‘a reasonable risk of danger to the safety or health of the
miners.’” Id. His comment is important, because it draws a bright line on what Alabama By-
Products did not hold!

     Thus, in citing with approval the Board’s Alabama By-Products holding, the task of

determining Congressional intent regarding the meaning of S&S became rather straightforward.
It clearly did not mean, as urged by Judge Schellenberg, “a reasonable risk of danger to the
safety or health of the miners.” 7 IBMA at 97. Yet that is essentially the formulation ultimately
adopted by the majority in Nat’l Gypsum!

    Apart from the Commission’s failure or refusal to follow clear legislative direction, the

Nat’l Gypsum interpretation of S&S is based on misguided concerns that were, and continue to
be, unfounded. The majority expressed its serious concern that maintaining the Alabama By-
Products interpretation of S&S, as urged by the Secretary, would result in almost all violations
being charged as S&S. Nat’l Gypsum, 3 FMSHRC at 825. Commissioner Lawson dashed that
concern by citing oral argument concessions that indicated that only 62% of all coal mine
violations cited prior to consideration of the Nat’l Gypsum case were characterized as S&S. Id.
at 835 (Lawson, A., dissenting). During that time period the Alabama By-Products S&S rule of
construction was in effect!

    The Nat’l Gypsum majority also expressed grave concern that by maintaining the

Alabama By-Products S&S construction, future enforcement under section 104(e) of the Mine
Act, 30 U.S.C. §814(e), would result in “continual shutdown” of the mines. Id. at 826-27.
Commissioner Lawson exposed the hollowness of that concern by quoting the Secretary’s
position regarding the “pattern” violation authority under section 104(e):

   The Secretary hasn’t issued a notice yet. The Secretary hasn’t issued a
   withdrawal order based on a notice of pattern yet. We haven’t got a case that
   presents that yet and I don’t believe the Commission should engage in this
   unwarranted speculation that the National Gypsum invites you to do, that we will
   not be able to effectively administer the Act if this definition of significant and
   substantial is adopted.

Id. at 837 (Lawson, A., dissenting) (citations omitted). Those words were uttered
approximately 16 years ago. However, they are no less accurate today, as I am unaware of any
section 104(e) enforcement, and certainly have not seen any cases seeking review of a section
104(e) violation. But more to the point, is Commissioner Lawson’s reaction to the majority’s
unfounded apprehension that an adverse effect upon section 104(e) enforcement would result
from a continuation of the Alabama By-Products interpretation of S&S:

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Page 12

              What this demonstrates about the enforcement of section 104(e) of the
      Act may well raise one’s eyebrows, but it can hardly be maintained, given this
      record, that any operator has reason to fear a 104(e) based closure of its mine.
      The adoption of all-encompassing rules to be applied to cases not yet--perhaps
      never--to be before us is both judicially premature and the unwise rendering of a
      judgment in a vacuum, before any experience or factual context exists within
      which to make such a decision. We should not promulgate rules for deciding
      non-existent cases which are not now and may never be before us.

Id. at 838 (Lawson, A., dissenting).

    Indeed, 15 years after those words were written, they continue to have vitality. That

demonstration of solid judgment and impressive 20/20 forward vision, is only surpassed by
Commissioner Lawson’s caution to the majority regarding the effects of their newly minted
interpretation of S&S:

      As a foundation for meaningful analysis, I can discern no improvement which will
      result from this alteration of the existing procedure, and no benefit accruing to
      either the inspector, the miner, or the mine operator. Unless the production of
      litigation is our goal, I confess that I can ascertain no purpose to this redefinition.

Id. at 839-40 (Lawson, A., dissenting).

     I am in total agreement with that insightful statement! The Commission’s Nat’l Gypsum/

Mathies interpretation of S&S has neither clarified nor facilitated a uniform application of S&S.
To the contrary, the present ambiguity only serves to fuel a constant stream of unnecessary
litigation that results in a diminished level of Congressionally mandated protection to our
nation’s miners and puts an unacceptable financial strain on operators and the government. The
recently decided Power Operating Co., 18 FMSHRC 303 (March 1996), presents a vivid
demonstration.

   In that case, the Secretary cited Power Operating Company (“Power”) for a violation of

30 C.F.R. § 77.1710(a) (1995)3 and charged S&S. 18 FMSHRC at 304. The Department of
Labor’s Mine Safety and Health Administration (“MSHA”) inspector observed a miner steam
cleaning a rock truck with a device (steam jenny) that delivers water under high pressure. Id.
The miner was not wearing goggles, and his face was splattered with black material that the
inspector believed to be dirt and grease. Id. Power did not dispute the foregoing, but
challenged

  3
        Section 77.1710(a) states:

                   Protective clothing or equipment and face-shields or
            goggles shall be worn when welding, cutting, or working with
            molten metal or when other hazards to the eyes exist.

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Page 13

the S&S charge. Id. The judge concluded the violation was not S&S. 16 FMSHRC 591, 607 (March
1994) (ALJ). Although he determined that an injury to the eye was reasonably likely to occur, he
concluded that “the record does not establish any evidence regarding the level of severity of an injury
occasioned by contact of the materials with an eye. Id. The Secretary appealed and the Commission ruled
that the judge erred in failing to conclude that the injury to the eye was reasonably likely to be serious. 18
FMSHRC at 306. The Commission majority (myself included) relied upon testimony of the inspector, that
had not been considered by the judge, which set forth the inspector’s opinion as to the seriousness of the
likely injury. Id. at 306-07. Although I had no difficulty concluding that the facts of that case clearly
established a S&S violation, I do not believe that Congress ever intended or expected that inspectors,
judges or Commissioners possess medical skills and knowledge sufficient to make such fine
distinctiburdenoftheSecretary.4 In my opinion that issue should never have been litigated -- it was not
even a close call. However, because the existing interpretation of S&S provides room for the fly-
specking myopia noted below, operators have effectively been encouraged to do so.

   4
                    That all eye injuries are not ipso facto serious is evidenced
           by the Secretary’s own regulations for the reporting of accidents,
           injuries, and illnesses set forth at 30 C.F.R., Part 50. Sections
           50.20-3(a)(5)(i)&(ii) set forth the criteria for differentiating, for
           purposes of eye injuries, between first aid and medical treatment.
           First aid encompasses irrigation of the eye, removal of foreign
           material not imbedded in the eye, and the use of non-prescription
           eye medications. 30 C.F.R. § 50.20-3(a)(5)(i). Medical treatment
           encompasses removal of imbedded foreign objects, use of
           prescription medications, and other professional treatment. 30
           C.F.R.
           § 50.20-3 (a)(5)(ii). First aid is characterized as ‘one-time
           treatment, and any follow-up visit for observational purposes, of a
           minor injury’(emphasis added). 30 C.F.R. §50.2(g). It appears
           that the potential injury here could well fall into the category of eye
           injury characterized by the Secretary as minor (one requiring only
           first aid) and which need not even be reported to MSHA on its
           Mine Accident, Injury, and Illness Report Form 7000-1. 30 C.F.R.
           §§ 50.2, 50.20. Thus, I disagree with my colleagues that the only
           possible conclusion is that forcibly propelled ‘dirt, grease or hot
           water striking the eye is reasonably likely to cause reasonably
           serious trauma.’ Slip op. at 4.

Power Operating, 18 FMSHRC at 308 (Doyle, J., dissenting).

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Page 14

       Interestingly, this precise problem was also anticipated by Commissioner Lawson.5

    Enough is enough! Fairness dictates that we in the Commission better serve the interests of

miners, mine operators and the Secretary of Labor. Therefore, I conclude that the interpretation of S&S,
as understood and applied prior to the Nat’l Gypsum decision, should be restored. It was a faithful
implementation of clear Congressional intent.6

                                                    _______________________________
                                                    Marc Lincoln Marks, Commissioner




   5
                     The majority’s tampering will add to the statute words of
            limitation which will require every mine inspector to make
            judgments, not only as to the ‘likelihood’of the effects of the
            hazard, and the ‘reasonable[ness]’of that ‘likelihood’but will as
            well demand medical predictions to be made as to whether a hazard
            will result in an injury or illness of a ‘reasonably serious’nature.
            Must the inspector henceforth determine, not only whether the roof
            is safe or unsafe, but whether the unconscious miner who is the
            victim of a roof fall has suffered ‘merely’a concussion, or a
            fractured skull? Would only the hazard in the latter case, under the
            majority’s rationale, be one which is significant and substantial?

Nat’l Gypsum, 3 FMSHRC at 833 (Lawson, A., dissenting) (emphasis supplied).
6
Notwithstanding this present conclusion, I restate that I remain open to revisit this issue
after it has been thoroughly briefed and argued.

                                                  875