The saying "the more things change the more they stay the same" is certainly true concerning operators defending themselves against MSHA enforcement actions and the resulting civil penalties and other consequences that flow from enforcement actions.  Civil penalties have increased dramatically since the April 23, 2007 new Part 100 scheme went into effect.  The new penalty scheme has a regular assessment ceiling of $70,000 for individual violations and special assessments often exceed that amount.  "Flagrant" assessments have been issued, often at the maximum amount of $220,000 per alleged violation, and §110 civil and criminal penalties have been increased to up to $500,000.  Elevated enforcement actions, i.e., §104(d) citations and orders,  also continue to be used frequently by MSHA inspectors and unwarrantable failure allegations, even if later disproved in legal proceedings, immediately result in the withdrawal of men and equipment and cause operational impacts that in some instances result in losses that can be more substantial than the penalty assessments.  The increased use of the "pattern of violations" enforcement tool which is authorized by §104(e) of the Mine Act is also cause for concern among operators since the consensus belief is that any mine at which each alleged Significant and Substantial (“S&S”) violation is treated as a withdrawal order will have the practical impact of knocking the operation out of business.  MSHA's own published data for the coal side of its activities reveals that elevated enforcement actions increased 171% between calendar year 2000 (1,233 issuances) and calendar year 2008 (3,347 issuances) and civil penalties increased by 996% over that same period, from $11.4 million in 2000 to $125 million in 2008. In the first full year of the increased penalty amounts, civil penalties are up an incredible $84.6 million (from $40.4 million in 2007).

Can anything be done?  Just as successful football teams never stop practicing the "fundamentals" of blocking, tackling, footwork and timing by repetitive drills, a fundamental building block in understanding MSHA enforcement actions is the issue of what enforcement actions meet the criteria to be upheld as S&S violations and which ones do not meet that criteria.  The difference in civil penalty assessments for enforcement actions upheld as S&S versus those which are not upheld as S&S is material on a per item basis and the benefit of maintaining an S&S history at an operation and avoiding the §104(e) pattern of violations enforcement tool is "priceless" and may be the difference between an operation's success or failure.  For example, just looking at civil penalties, a citation assessed as S&S at 107 points under Part 100 would carry a penalty amount of $4,329 after the 10% good faith abatement reduction.  The same citation assessed as non-S&S would be for 87 points (the difference between “likely” at 30 points and “unlikely” at 10 points under Table XI Gravity at 30 CFR Part 100) and would carry a penalty amount of $874, a difference of $3,455, after the good faith abatement reduction.  While many other factors can and do impact civil penalty amounts and an operators' history, S&S analysis is often the first round in the fight against MSHA hyper-enforcement.

S&S has been explained by the Federal Mine Safety and Health Review Commission starting with its decision in Mathies Coal Co., 6 FMSHRC 1 (January 1984).  Mathies set forth a four part test for determining S&S: (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.  While the first element is relatively self-explanatory, the second, third, and fourth elements have been the subject of much debate and litigation and the Commission has further defined those terms.  The Commission has held that the second element that MSHA must prove to show S&S, "discrete safety hazard," is a "recognition that the violation must be more than a mere technical violation - i.e., that the violation present a measure of danger." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).  Further, the Commission has emphasized that "it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial." Texasgulf, Inc., 10 FMSHRC 498 (April 1988) (citing U.S. Steel Mining Co. Inc., 6 FMSHRC 1834).

The third element of the Mathies test, the "reasonable likelihood" test is perhaps the most litigated factor and is often combined in the analysis with the fourth factor, whether the injury will be of a reasonably serious nature.  The Commission has repeatedly held that significant and substantial determinations must be based upon the particular facts surrounding the violation in issue assuming continued normal mining operations.  Conditions in other mines or over extended periods are not relevant. Peabody Coal Co., 17 FMSHRC 508 (April 1995).  The Commission has emphasized that "[t]he third prong of the test for S&S is whether there exists a reasonable likelihood that the hazard contributed to will (not could) result in an injury or illness of a reasonably serious nature." Amax Coal Co., 18 FMSHRC 1355, 1358 (August 1996).  This is an important point because inspectors will often phrase their findings by noting what could happen in a worst-case scenario and fail to consider what is actually reasonably likely given the particular facts and circumstances, including mitigating factors, present at the mine.  It is important to remember that, just as a baseball player must touch all four bases to score a run, MSHA must prove all four elements to uphold S&S.  If facts can be shown that disprove any one element, then S&S cannot be found.