Uncovering S&S

Name *
Name

Perhaps the most recognizable and feared box on any citation is the “Significant and Substantial” (S&S) designation. Many mine operators and their miners believe that S&S citations are a higher level of citations. Often the S&S designation is the primary issue that operators want removed when contesting a citation. While it is important to not have S&S violations on your record, the S&S designation is more a stepping off point for MSHA to issue greater, more serious citations in the future. In this article, I will review the Mine Act’s definition of S&S, the consequences of an S&S citation, and how mine operators can reduce the likelihood of receiving an S&S citation.

What is S&S and How is it Interpreted?

When an inspector checks the “S&S” box, they are saying that “the violation is such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard and such hazard has a reasonable likelihood to result in a reasonably serious injury or illness.”[1] While this is somewhat convoluted, it can be broken down into four main parts: 1) there must be a violation of a health or safety standard; 2) the violation must contribute to a discrete safety hazard; 3) there must be a reasonable likelihood of injury, and; 4) should the accident happen, the injury will be reasonably serious.[2]

It is helpful to know a few facts regarding S&S citations before interpreting the four requirements. First, an S&S designation has nothing to do with the negligence of the violation. Instead, S&S designations are based primarily on the gravity of the citation — the likelihood of an accident resulting from the violation and the seriousness of the injury should the accident occur. Second, an S&S citation cannot be issued for anything other than a violation of a mandatory health or safety standard. This means that only violations under 30 C.F.R. 46, 47, 48, 49, 56, 57, 58, 62, 70, 71, 72, 75, 77, and 90 may be designated S&S. Lastly, an inspector cannot issue an S&S citation for exclusively a paperwork citation. For example, a citation issued for failure to record a pre-trip inspection of equipment where the equipment does not have safety defects cannot be designated S&S.

Now that we know when an inspector cannot issue S&S citations, we look to how the courts interpret the four requirements of S&S as set out in Mathies Coal. The first requirement is relatively easy to satisfy — it is satisfied if there is a violation of a standard that can be written as S&S. The second, third, and fourth requirements, however, have been subject to much more judicial debate. The most recent interpretation of the application of the Mathies Coal S&S requirements determined that the second requirement — that the violation contributed to a discrete safety hazard — requires MSHA to show that the violation is at least somewhat likely to result in harm.[3] This means that it is the second prong where MSHA must show that the violation is likely to result in an injury, and if they cannot, then MSHA failed to satisfy the requirements of S&S. Moving to the third requirement — that there must be a reasonable likelihood of injury — is not whether an accident is reasonably likely to occur, but whether it is reasonably likely that a serious injury would result from the hazard.[4] In other words, the courts interpret the third requirement as the likelihood of injury, assuming the event occurred. Finally, the courts interpret the fourth requirement— that the injury is reasonably serious – also assuming the accident occurred. Under this requirement, however, the courts are considering the seriousness of the injury, now assuming now that the injury occurred.  

So, You Were Issued an S&S Citation…

Assuming the citation you received meets the above requirements and is valid, what are the consequences? In general, mine operators have a tendency to think that receiving an S&S citation is some extra citation — that the operator was especially at fault for the violation. But remember that an S&S citation has nothing to do with negligence. An inspector can issue an S&S citation even where mine operator negligence is low. All the issuing of an S&S citation means is that there is a reasonable likelihood of an accident and should that accident occur, it is reasonably likely to result in reasonably serious injuries. An S&S designation on a citation will also not affect the amount of the fine for the citation. S&S designation is not a category MSHA uses to calculate fines.[5] Therefore, two citations that are the same gravity and negligence will result in the same fine regardless of whether one of them is S&S.

From a purely MSHA standpoint, there are two main areas where an S&S designation is important. First, only S&S violations count toward Pattern of Violation (POV) monitoring under MSHA. Once a mine has reached a certain number of S&S violations,[6] the mine operator will be on notice that any further S&S citations will result in a withdraw order until the violation is abated. The only way to have the POV notice removed is by having no withdraw orders for 90 days or an MHSA inspection of the entire mine finds no S&S violations.

The second, and more applicable, reason S&S violations are important is that they are a requirement for 104(d) citations and orders. 104(d) citations are the “unwarrantable failure” citations where MSHA can issue personal fines. For MSHA to issue a 104(d) citation, the violation must be designated S&S and at least high negligence.

Pushing Back Against an S&S Designation

 While there are no extra monetary penalties for a 104(a) citation that has been designated S&S and it is a high standard for a mine operator to be on POV notice, receiving an S&S citation may have other consequences that are detrimental to your business. Even more significant, knowing the right questions to reduce an S&S citation may keep a mine operator from receiving a 104(d) citation. If you receive an S&S citation, ask the inspector why he feels the hazard is reasonably likely to result in injury and whether the injury is expected to result in lost workdays, restricted duty, or higher. Both categories of gravity are based on the inspector’s judgment of what accident would result from the hazard, so simply asking these questions may make an inspector realize the hazard may not be as likely to result in an accident as he initially thought. Even if the inspector sticks to his initial analysis of the gravity, a mine operator should document what the inspector says and why the mine operator disagrees with the gravity. Having these notes documented from the time of the inspection is extremely helpful in reducing an S&S citation if the mine operator chooses to contest.

 

About the Author:

Matt DeAtley is the fifth generation in a mining family and founded DeAtley Law, PLLC with the specific goal of assisting mine operators and contractors with MSHA Disputes. You can contact Matt at www.deatleylaw.com or by calling (208) 816-0625.

[1] 30 U.S.C. § 814(d)(1).

[2] Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984).

[3] Knox Creek Coal Corp. Sec. of Labor, MSHA, 811 F.3d 148, 164 (2016); see Sec'y of Labor v. Black Beauty Coal Co., 34 FMSHRC 1733, 1741 n. 12 (2012).

[4] Id. At 161.

[5] 30 C.F.R. § 100.3.

[6] Test One: (1) At least 50 S&S citations in the most recent 12 months; (2) a rate of 8 or more S&S citation per 100 inspection hours OR negligence of high or reckless disregard on 25% of the S&S citations of the past 12 months; (3) at least ,5 elevated citations and orders (under Section 104(b), 104(d), 104(g), or 107(a)) issued per 100 inspection hours during most recent 12 months; and (4) an Injury Severity Measure (SM) for the mine that is greater than the overall industry SM for all mines in the same mine type and classification over the most recent 12 months.

Test Two: (1) At least 100 S&S citations in the last 12 months; and (2) at least 40 elevated citations and orders issued during the most recent 12 months.