The U.S. Court of Appeals for the District of Columbia Circuit recently decided that the failure to maintain emergency lifelines for miners to use effectively is a significant and substantial violation of the Federal Mine Safety and Health Act (FMSHA), regardless of the likelihood of a mine emergency actually occurring at the time of the violation (Cumberland Coal Res. LP v. Fed. Mine Safety and Health Review Comm’n, D.C. Cir., No. 11-1464, 6/7/13).
The Mine Safety and Health Administration (MSHA) applauded the court’s unanimous decision to uphold the agency’s interpretation that one must assume the occurrence of an emergency in evaluating violations of emergency standards. The court agreed that “emergency safety standards are fundamentally different from nonemergency standards because they are designed to apply meaningfully only in times of emergency.”
The mine-safety law states that if a violation of a mandatory health or safety standard has occurred and it “is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine-safety or health hazard,” then the inspector is to include that finding in the citation issued for the violation. Such a finding is a precondition for enhanced enforcement actions, such as heavier penalties and more stringent scrutiny by MSHA.
“Mine emergency protections need to be in place before an emergency occurs,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “The court recognized that the absence of such protections is a serious matter, to be taken seriously if miners are to have these protections when they need them the most.”
The decision upheld a ruling by the Federal Mine Safety and Health Review Commission that emergency-lifeline failures at Cumberland Coal Resources LP’s Cumberland Mine in Greene County, Pa., violated the law. Cumberland appealed, arguing that the commission applied the wrong standard when it reversed an administrative law judge’s ruling that the violations were not significant and substantial and that, even if it applied the correct standard, its findings were not supported by substantial evidence.
An MSHA investigator inspected four of Cumberland Mine’s escapeways over a four-day period in December 2007 and issued a citation for each, alleging a violation of the lifeline requirement. A lifeline is an emergency escape rope designed to help miners evacuate a mine in an emergency.
The inspector found that some of the lifelines were hung too high for miners to reach, some were hung from hooks that made them difficult to use, and some were obstructed.
The investigator designated each violation as significant and substantial, determining that the location of the lifelines would have delayed miners’ escape and that the delay would have likely resulted in serious injury or death in an emergency.
These lifeline violations arose under amendments to the FMSHA, passed in response to three multiple-fatality mine disasters in 2006, in which miners were unable to successfully evacuate mines.
Specifically, operators are required to:
- Provide flame-resistant and directional lifelines in escapeways to enable evacuation.
- Provide each mine escapeway with a lifeline that is located where miners can effectively use it.
- Provide lifelines equipped with directional indicators showing the route of escape, indicators that lead to a cache of stored self-contained breathable air devices, and indicators that lead to a refuge alternative for miners unable to escape.
Cumberland Mine argued that the commission was wrong to assume the existence of an emergency.
The court explained, “The hazard here is delayed escape from an emergency, but there can be no delayed escape unless there is an emergency in the first place.”
Furthermore, the court said, “[judges] have routinely assumed the occurrence of the contemplated emergency in evaluating the significant and substantial nature of violations that only come into play in the event of an emergency.”
Cumberland also contended that in the event of a fire, miners were unlikely to be hurt because they could use equipment other than lifelines to escape, such as “the belt structure to guide them out of the mine and the waterline running along the belt as a directional indicator.”
The court was not persuaded by this argument, stating that “the record demonstrates that miners are trained to use lifelines in emergencies, and thus, even if they did think to use the belt structure or the waterlines, they would still be delayed as they first attempted to find and use the lifeline.”
The court stressed that the hazard was not a hypothetical mine fire but delayed escape from an emergency.
Roy Maurer is an online editor/manager for SHRM.
Follow him on Twitter @SHRMRoy.
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