[Federal Register Volume 63, Number 24 (Thursday, February 5, 1998)]
[Notices]
[Pages 6012-6015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2853]
[[Page 6011]]
_______________________________________________________________________
Part IV
Department of Labor
_______________________________________________________________________
Mine Safety and Health Administration
_______________________________________________________________________
Federal Mine Safety and Health Act of 1977: Sections 104 (d) and (e)
``Significant and Substantial'' Phrase, Interpretative Bulletin; Notice
Federal Register / Vol. 63, No. 24 / Thursday, February 5, 1998 /
Notices
[[Page 6012]]
DEPARTMENT OF LABOR
Mine Safety and Health Administration
The ``Significant and Substantial'' Phrase in Sections 104(d) and
(e) of the Federal Mine Safety and Health Act of 1977; Interpretative
Bulletin
The Interpretative Bulletin published below sets forth a statement
of the Secretary of Labor's Mine Safety and Health Administration's
(MSHA's) interpretation of the ``significant and substantial'' phrase
contained in sections 104(d) and (e) of the Federal Mine Safety and
Health Act of 1977 (Mine Act), an interpretation which will be
implemented in accordance with a Program Information Bulletin attached
as an appendix to this Interpretative Bulletin. This Interpretative
Bulletin provides an explanation of the Secretary's interpretation of
the statutory phrase and the rationale supporting this interpretation.
The Secretary of Labor is responsible for interpreting and applying
the statutes which she administers. Interpretation and application of
statutory terms to particular factual circumstances is an ongoing
process. Publication of all interpretative positions taken by the
Secretary is impossible, but from time to time the Secretary has found
it useful as a means of notifying the public in general, and interested
segments of the public in particular, to publish Interpretative
Bulletins or other material setting forth the Secretary's general
interpretative positions on particular provisions of certain statutes.
Purpose of This Interpretative Bulletin
The purpose of this Interpretative Bulletin is to provide notice of
the Secretary's interpretation of the statutory phrase ``significant
and substantial'' appearing in sections 104(d) and (e) of the Mine Act,
an interpretation which the Secretary will utilize in enforcing the
Mine Act. The Secretary's interpretation of the ``significant and
substantial'' phrase is that a violation must be found to be
``significant and substantial'' as long as it is shown to present a
hazard that is more than remote or speculative.
This Bulletin is also meant to provide notice that the Secretary
intends to challenge the interpretation of the ``significant and
substantial'' phrase set forth and applied in the existing case law of
the Federal Mine Safety and Health Review Commission (Commission).
Under the Mine Act, which is enforced by MSHA, the importance of
the ``significant and substantial'' phrase is that if a violation of a
mandatory health or safety standard is found to be ``significant and
substantial,'' the operator may be subject to increasingly severe
enforcement actions under sections 104(d) and (e) and to higher civil
penalties under section 110.
The Commission's existing interpretation of the ``significant and
substantial'' phrase is that a violation may be found to be
``significant and substantial'' only if it is shown to present a hazard
that is reasonably likely to result in a reasonably serious illness or
injury. The Secretary intends to challenge the Commission's
interpretation of the ``significant and substantial'' phrase because,
after conducting a careful review of the Commission's decisions and the
language, history, and purpose of the phrase, the Secretary has
concluded that the Commission's interpretation is legally incorrect.
The Commission's Interpretation of the ``Significant and Substantial''
Phrase, and the Secretary's Disagreement With the Commission's
Interpretation
The Commission has determined that a violation is ``significant and
substantial'' if, ``based upon 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 Division, National Gypsum Co., 3 FMSHRC 822,
825 (1981). Accord Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). The
Secretary has concluded that the Commission's interpretation of the
``significant and substantial'' phrase as requiring the Secretary to
establish a ``reasonable likelihood that the hazard contributed to will
result in an injury of a reasonably serious nature'' is inconsistent
with the plain language, legislative history, and remedial purpose of
the Mine Act, and that the Commission's application of its
interpretation of the phrase over the years has increasingly impeded
MSHA's attempts to improve health and safety by imposing meaningful
sanctions for violations of the Mine Act's mandatory standards.
For example, the Commission has in recent years vacated the MSHA
inspectors' significant and substantial determinations in a series of
cases involving permissibility violations 1 or violations
posing ignition or explosion hazards. Texasgulf, Inc., 10 FMSHRC 498,
501-503 (1988); Eastern Associated Coal Co., 13 FMSHRC 178, 184 (1991);
Energy West Mining Co., 15 FMSHRC 1836, 1838-1839 (1993). Texasgulf
involved three violations of 30 CFR 57.21078, the permissibility
standard for metal/nonmetal mines. The hazard presented was that the
violation would result in a methane ignition or explosion. In analyzing
whether there was a reasonable likelihood that the hazard would result
in an ignition or explosion, the Commission stated that there must be a
``confluence of factors,'' including a sufficient amount of methane in
the atmosphere surrounding the impermissible gaps and ignition sources,
to support a significant and substantial determination. Texasgulf, 10
FMSHRC at 501. At the time of the citation, methane measured .009%,
methane had never been detected in the explosive range at the trona
mine involved, and the geologic formations at the mine were not such as
to result in high methane liberation. On that basis, the Commission
concluded that there was not a reasonable likelihood that the hazard
would result in a mine ignition or explosion. Texasgulf, 10 FMSHRC at
502-503. The Commission made this determination despite evidence that
the mine liberated 50,000 to 90,000 cfm methane daily and that sudden
methane liberations could occur.
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\1\ Methane is a flammable gas found in underground mining. In
order to prevent methane from coming into contact with an ignition
source, electrical equipment used in many underground mines must be
permissible. Permissible means that the equipment has been approved
by MSHA for use underground. Permissible equipment is designed so
that the air in the mine atmosphere cannot enter the electrical
components of the equipment.
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The Commission subsequently applied its ``confluence of factors''
formulation of the ``reasonable likelihood'' element of its significant
and substantial interpretation in two other cases involving ignition
and explosion hazards. Eastern, supra; Energy West, supra. An analysis
of these cases establishes that the Commission's interpretation of the
``significant and substantial'' phrase and its application of the
``reasonable likelihood'' ``confluence of factors'' analysis requires
the Secretary not only to establish the presence of combustible
material or methane in large or dangerous amounts and the presence of
potential ignition sources, but also to establish that the ignition
sources are sparking either because of normal use, as with a continuous
miner, or because of a malfunction. For this reason, the Commission's
interpretation and application of the ``significant and substantial''
phrase to ignition and explosion hazards effectively equates a
``significant and substantial'' violation with an imminent danger. In
other
[[Page 6013]]
words, the Commission may, under its interpretation, require close to a
certainty that the hazard contributed to will result in an injury-
causing event to support a significant and substantial finding for
violations presenting ignition or explosion hazards. All of the
foregoing cases involved ignition or explosion hazards, which are among
the most serious hazards encountered in mining.
More generally, the Commission's narrow interpretation of the
``significant and substantial'' phrase as applying only to violations
which present hazards that are virtually certain to result in injury-
producing events impedes MSHA's ability to improve health and safety
conditions in mines in a broad variety of other cases because it
effectively removes the ``significant and substantial'' tool from
MSHA's enforcement arsenal. A review of the decisions issued by the
Commission and its administrative law judges indicates a decline in the
percentage of significant and substantial citations affirmed by the
Commission in the years since the Commission's 1988 decision in
Texasgulf. Similarly, a disturbing number of decisions issued by
Commission administrative law judges in recent years demonstrated a
restrictive and unrealistic application of the ``significant and
substantial'' phrase. In addition, the Commission's narrow
interpretation has resulted in recent years in an increasing amount of
unnecessary and unnecessarily complicated litigation. See United States
Steel Mining Co., 18 FMSHRC 862, 868-867 (1996) (Commissioner Marks,
dissenting) (calling for reexamination of the Commission's
interpretation and concluding, inter alia, that that interpretation has
``only serve[d] 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''). Most importantly, as
discussed below, the Commission's interpretation of the ``significant
and substantial'' phrase is inconsistent both with the plain language
of the Mine Act and with its legislative history.
The Plain Language of the ``Significant and Substantial'' Phrase
The Federal Mine Safety and Health Act of 1977 (Mine Act) amended
and replaced the Federal Coal Mine Health and Safety Act of 1969 (Coal
Act). The ``significant and substantial'' phrase which appeared in
section 104(c) of the Coal Act (the unwarrantable failure provision)
was carried over unchanged to section 104(d) of the Mine Act. The
phrase appears in section 104(d) of the Mine Act as follows: ``such
violation 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 * * *.'' In addition to appearing in the unwarrantable
failure provision of section 104(d), the ``significant and
substantial'' phrase appears in the pattern of violations provision of
section 104(e) of the Mine Act, which was a new provision.
In each section, the ``significant and substantial'' phrase
describes the type of violation which, when cited under the respective
sections in conjunction with other factors, results in the possible
imposition of further sanctions on the offending operator.2
The words ``significantly and substantially'' are adverbs modifying the
verb ``contribute.'' Therefore, it is the contribution of the violation
to the cause and effect of a hazard which must be ``significant and
substantial.''
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\2\ Under section 104(d), the other factors are that the
conditions created by the alleged violation were caused by an
unwarrantable failure of the operator to comply with mandatory
health or safety standards. Under section 104(e), the other factor
is a previously issued written notice from the Secretary to the
operator alleging that a pattern of significant and substantial
violations exists.
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Although the term ``hazard'' is not defined in the Mine Act, it is
a common word which has been defined as ``* * * a thing, or condition
that might operate against success or safety; a possible source of
peril, danger, duress or difficulty * * *.'' Webster's Third New
International Dictionary (1966 ed.) (emphasis added). The language of
section 104(d) does not indicate that any particular degree of hazard
is required to support a significant and substantial finding.
Similarly, nothing in section 104(d) requires that the violation
actually contribute to a hazard. On the contrary, the ``significant and
substantial'' phrase begins with ``could significantly and
substantially contribute to the cause and effect of * * * (a) mine * *
* hazard'' (in sections 104(d)(1) and 104(e)(2)) and ``could have
significantly and substantially contributed to the cause and effect of*
* * (a) mine * * * hazard'' (in section 104(e)(1)). Therefore, the
statutory language precludes application of the ``significant and
substantial'' phrase to those violations which present no hazard or
present a hazard that is only remote or speculative in nature.
Conversely, the statutory language mandates application of the
``significant and substantial'' phrase to violations which present
hazards that have a realistic possibility of occurring.
In addition, the Secretary's interpretation of the ``significant
and substantial'' provision of the Mine Act is consistent with the
legislative history and with the enforcement scheme of the Mine Act.
The Legislative History of the ``Significant and Substantial'' Phrase
In enacting the Mine Act, Congress specifically addressed the
meaning of the ``significant and substantial'' phrase as Congress
understood and intended the phrase to be applied. In discussing the
meaning of the ``significant and substantial'' phrase as it had been
interpreted under section 104(c) of the Coal Act, the Senate Committee
report on what became section 104(d) of the Mine Act harshly criticized
the holding of the Commission's predecessor, the Interior Board of Mine
Operations Appeals, in Eastern Associated Coal Corp., 3 IBMA 331
(1974), as an ``unnecessarily and improperly strict view of the
`gravity test' * * * (which) has required that the violation be so
serious as to very closely approach a situation of imminent danger.''
S. Rep. No. 95-181, 95th Cong., 1st Sess. at 31, 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 614 (1978). The Committee then noted with approval its
understanding of the IBMA's subsequent Alabama By-Products decision,
stating that in Alabama By-Products Corp., 7 IBMA 85 (1976), the Board
had ``ruled that only notices for purely technical violations could not
be issued under section 104(c)(1) (of the Coal Act).'' The Committee
then stated:
The Board's holding in Alabama By-Products Corporation is
consistent with the committee's intention that the unwarrantable
failure citation is appropriately used for all violations, whether
or not they create a hazard which poses a danger to miners(,) so
long as they are not purely technical in nature. The Committee
assumes, however, that when ``technical'' violations do pose a
health or safety danger to miners, and are the result of an
``unwarrantable failure'' the unwarrantable failure notice will be
issued.
S. Rep. No. 95-181 at 31, reprinted in Legislative History at
632.3 The Secretary's interpretation of the ``significant
and substantial'' phrase is consistent with the explicit statements
[[Page 6014]]
in the legislative history addressing the phrase, and the Commission's
is not.
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\3\ The significant and substantial phrase appears in Section
104(d) of the Mine Act which also includes the unwarrantable failure
provision. Thus, this provision is sometimes referred to as the
unwarrantable failure citation.
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The Purpose of the ``Significant and Substantial'' Phrase in Promoting
Health and Safety
The Secretary's interpretation of the ``significant and
substantial'' phrase is also consistent with the underlying purpose and
the enforcement scheme of the Mine Act. Mining is one of the Nation's
most hazardous occupations. The ``significant and substantial'' phrase
reflects the fact that Congress was attempting to root out and prevent
significant and substantial contributions, both actual and potential,
to mine health and safety hazards. See sections 2(c) and (e) of the
Mine Act. Congress' concern in preventing potential mine hazards, or at
least eliminating them before they result in accident, injury, or
illness, is the reason Congress established a low threshold for finding
a violation to be significant and substantial. Applying the
``significant and substantial'' provision to all violations which
present a hazard that has more than a speculative or remote chance of
occurring is fully consistent with the Mine Act's enforcement scheme.
Moreover, in addition to attempting to prevent significant and
substantial contributions to mine safety and health hazards, the
``significant and substantial'' provision also acts as a trigger for
additional, stronger enforcement tools available to MSHA to address
more serious operator conduct. For example, the unwarrantable failure
provision in section 104(d) addresses violations resulting from an
operator's indifference or other aggravated conduct in permitting a
violation to occur or in refusing to correct a known violative
condition, and provides for increasingly severe consequences for
repeated unwarrantable violations, including a withdrawal order
requiring all miners to be withdrawn from the area until the hazardous
condition is corrected. The first citation issued to an operator under
section 104(d)'s unwarrantable failure provision must allege that the
violation is both significant and substantial and the result of the
operator's unwarrantable failure to comply with the mandatory health or
safety standard. Subsequent unwarrantable failure violations are not
required to be significant and substantial. Thus, to trigger the
unwarrantable failure provision, the initial violation must be
significant and substantial.
In addition, the significant and substantial provision is important
for section 104(e)'s pattern of violations notice, which is issued to
an operator who establishes a pattern of recurrent significant and
substantial violations, i.e., the habitual violator. The Secretary has
promulgated regulations for the application of section 104(e)'s notice
of pattern of violations at 30 C.F.R. part 104. Those regulations
ensure that even with a broader interpretation of the significant and
substantial provision, the pattern provision is remedial and not
onerous. It is only if the extensive corrective efforts and procedures
outlined in 30 C.F.R. part 104 are not successful or if the operator
declines to institute such a program that the mine may actually receive
a pattern notice. Even if those efforts are not successful, a pattern
notice is not issued until after higher level review by the appropriate
MSHA administrator. However, if the Secretary's attempts to assist the
operator to correct the recurrent violations are unsuccessful, the
pattern of violations notice permits the Secretary to order the
withdrawal of miners until the hazardous condition is abated.
The Secretary acknowledges that she has refrained from challenging
the Commission's interpretation of the ``significant and substantial''
phrase for a number of years. However, the Commission's increasingly
restrictive application of that interpretation over the years has, as
discussed above, led the Secretary to reevaluate the Commission's
interpretation. After reevaluating the Commission's interpretation of
the ``significant and substantial'' phrase, the Secretary has concluded
that the Commission's interpretation is inconsistent both with the
plain language of the Mine Act and its legislative history, and with
the effective enforcement of the Act.
Dated: January 30, 1998.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
[[Page 6015]]
U.S. Department of Labor
Mine Safety and Health Administration, 4015 Wilson Boulevard,
Arlington, Virginia 22203-1984
NON-MANDATORY APPENDIX
ISSUE DATE: February 5, 1998
PROGRAM INFORMATION BULLETIN NO. P98-7
FROM:
MARVIN W. NICHOLS, Jr., Administrator for Coal Mine Safety and
Health
EDWARD C. HUGLER, Acting Administrator for Metal and Nonmetal
Mine Safety and Health
SUBJECT: Significant and Substantial
Scope
This program information bulletin is for all Mine Safety and
Health Administration enforcement personnel, mine operators, and
independent contractors.
Purpose
The purpose of this bulletin is to inform MSHA enforcement
personnel, mine operators, and independent contractors of how MSHA
intends to enforce and litigate its interpretation of the
``significant and substantial'' phrase which it set forth in the
Interpretative Bulletin published along with this Program
Information Bulletin in today's Federal Register.
Information
The Mine Safety and Health Administration's (MSHA's) enforcement
personnel will continue to cite violations as ``significant and
substantial'' in accordance with existing practices as outlined in
the Agency's Program Policy Manual.
For all ``significant and substantial'' findings which are then
litigated before an administrative law judge, the Solicitor's Office
will assert that the violation is ``significant and substantial''
both under the interpretation of the ``significant and substantial''
phrase announced in the Secretary's Interpretative Bulletin and
under Commission case law until there is a definitive judicial
decision regarding the validity of the Secretary's interpretation.
In the interest of administrative and judicial economy, the
Secretary will litigate a small group of cases until there is a
definitive ruling on the validity of the Secretary's interpretation
of the ``significant and substantial'' phrase.
Background
Along with this Program Information Bulletin, in today's Federal
Register, the Secretary published an Interpretative Bulletin which set
forth the Secretary's interpretation of the ``significant and
substantial'' phrase in Sections 104(d) and 104(e) of the Mine Act. As
the Secretary explained in the Interpretative Bulletin, after
conducting a careful review of the language, history, and purpose of
the ``significant and substantial'' phrase as well as a review of the
Commission's ``significant and substantial'' decisions both prior to
and after Texasgulf, Inc., 10 FMSHRC 498 (1988), the Secretary has
concluded that the Commission's existing interpretation of the
``significant and substantial'' phrase is incorrect.
Authority
30 U.S.C. 814(d) and 814(e).
Issuing Offices and Contact Persons
Coal Mine Safety and Health,
Robert A. Elam, 703/235-1140
Metal and Nonmetal Mine Safety and Health,
Claude N. Narramore, 703/235-1565
Distribution
Program Policy Manual Holders
Mine Operators
Independent Contractors
MSHA Special Interest Groups
[FR Doc. 98-2853 Filed 2-4-98; 8:45 am]
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