[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]



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Part IV





Department of Labor





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Mine Safety and Health Administration



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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  

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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

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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.

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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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