FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 October 5, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen and Nakamura, Commissioners

DECISION

BY THE COMMISSION:      

            This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). The case raises the issue of whether four violations of 30 C.F.R. § 75.380(d)(7)(iv) by Cumberland Coal Resources, LP (“Cumberland”), were significant and substantial (“S&S”). Administrative Law Judge Avram Weisberger found that the four violations were not S&S. 31 FMSHRC 1147 (Sept. 2009) (ALJ). The Secretary filed a petition for discretionary review challenging the judge’s determination, which the Commission granted. Oral argument was held in the case. For the reasons that follow, we reverse the judge’s decision and remand the matter for reassessment of the penalties.

I.

Factual and Procedural Background

            Cumberland operates the Cumberland Mine, an underground coal mine located in Waynesburg, Pennsylvania. On December 6, 2007, a special investigator from the Department of Labor’s Mine Safety and Health Administration (“MSHA”), Thomas H. Whitehair II, inspected the Number One belt entry, the secondary escapeway for the Five Butt East longwall section. 31 FMSHRC at 1157. He inspected the escapeway for a distance of approximately 6,650 feet. Id. A lifeline was suspended from the roof. Id. The height of the lifeline between these two crosscuts throughout the escapeway was seven feet, eight inches. Id.

            The inspector observed that portions of the lifeline were suspended by four-inch long hooks shaped like the letter J (“J-hooks”). Id. The J-hooks were approximately 50 feet apart. Id. The hooks were attached to the roof at the top, were open-sided, and curved upward at the bottom to hold the lifeline. Id. They were not pointed in the same direction throughout the escapeway. Id. The inspector testified that because of the lifeline’s height, a miner generally would not be able to reach the lifeline but would have to flip it off the hook. Tr. 48. He further stated that because of the multiple directions of the hooks, a miner would have to flip the lifeline in multiple directions in order to get it off the hook. Tr. 48. He believed that the positioning of the hooks in this manner would have an adverse impact on a miner’s ability to use the lifeline because it would be time-consuming and take a lot of effort to access the lifeline, which would hinder escape. Tr. 49.

            Additionally, the lifeline was hung so high – seven feet eight inches from the mine floor – that it was impossible to reach up and touch it. Tr. 53, 56, 60, 62. Moreover, several cables along the escapeway were hung from the roof just underneath the lifeline. Thus, if the lifeline could be pulled down, it would only fall as far as the cable underneath it. A miner attempting to escape in an emergency would have to release the lifeline in order to move around the cable. Tr. 63-64.

            As a result of the height of the lifeline and the placement of the J-hooks, Inspector Whitehair issued Citation No. 7019884 for an alleged S&S violation of section 75.380(d)(7)(iv). 31 FMSHRC at 1149; Tr. 67.

            On the next day, December 7, 2007, Inspector Whitehair resumed his inspection of the mine and inspected the lifeline in the Number Two track entry of the Five Butt East longwall section for a distance of approximately 750 to 850 feet. 31 FMSHRC at 1158. The entry was the primary escapeway for the longwall section. Tr. 76. The lifeline in the escapeway was located over various pieces of track equipment for a distance of 450 feet. 31 FMSHRC at 1158. The pieces of track equipment were all at least seven feet wide and between three and five feet high. Id. at 1159. In addition, at various locations along the cited lifeline, cables and waterlines ran perpendicular and under the lifeline at issue. Id. As a result, Whitehair issued Citation No. 7019885, for an alleged S&S violation of section 75.380(d)(7)(iv). Gov’t Ex. 5.

            On December 10, 2007, Whitehair was conducting a Mine Act section 103(i) spot inspection because the Cumberland Mine liberates one million cubic feet of methane within a 24- hour period. Tr. 112. He inspected the lifeline in the Number Two track entry, the primary escapeway for the Eight Butt East section of the mine. 31 FMSHRC at 1160. He indicated that the lifeline, which was hung from the mine roof approximately seven and half feet above the floor, was located over various pieces of track equipment, for a distance of approximately 120 feet, similar to the previous inspection. Id.; Tr. 118. The inspector also observed that at one location the lifeline was located over a waterline that ran perpendicular to the lifeline. Id. Additionally, the lifeline could only be accessed at its inby end, and any miners entering the escapeway from adjacent entries would not be able to reach the lifeline and use it to help them escape. Tr. 122, 126-27. As a result, Whitehair issued Citation No. 7019887 for an alleged S&S violation of section 75.380(d)(7)(iv). Gov’t Ex. 7.

            On December 11, 2007, Inspector Whitehair inspected the lifeline in the Number Two track entry, the primary escapeway for the 15 Butt East section of the mine. Tr. 133. He observed that the lifeline, which was hung approximately seven and a half feet above the floor, was located above track equipment for approximately 300 feet. Tr. 133-34. As a result, the inspector issued Citation No. 7019889 for an alleged S&S violation of section 75.380(d)(7)(iv). Gov’t Ex. 10.

            After a hearing on the merits, the judge determined that section 75.380(d)(7)(iv) requires that lifelines must be located in a manner for miners to use “effectively” to escape, i.e., to achieve the results of a quick escape in an emergency. 31 FMSHRC 1156. The judge found that Cumberland’s suspension of the lifelines by numerous J-hooks above cables and above track equipment did not comply with this requirement. Id. at 1158, 1160. Accordingly, he determined that Citation Nos. 7019884, 7019885, 7019887, and 7019889 constituted four violations of section 75.380(d)(7)(iv) at four different mine locations. Id. at 1157-60.

            With respect to the question of whether the violations were S&S, the judge applied the test set forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). 31 FMSHRC at 1162-63. The judge found that the record established the underlying violation, which is the first element of Mathies. Id. at 1163. He also reasoned that the second element was satisfied because these violations “contributed to the hazard of miners not escaping quickly in an emergency with attendant increased risk of injuries due to a delay in escape.” Id. at 1163. He determined that the third element of Mathies was at issue: whether there is a reasonable likelihood that the hazard contributed to will result in an injury, i.e., a reasonable likelihood of an injury-producing event. Id. The judge concluded that the “Secretary has failed to adduce the existence of facts that, in normal mining operations, would have tended to establish that there was a reasonable likelihood of a fire or explosion.” Id. He noted that “Whitehair conceded on cross-examination that a fire or explosion that would lead to reduced visibility to the point where use of a lifeline was necessary, was not reasonably likely.” Id. The judge rejected the Secretary’s assertion that the third element of Mathies must be “viewed in the context of continuing mining operations and of an emergency necessitating use of the escapeway, and by analogy, the lifeline.” Id. at 1163-64 n.6. The judge did not reach the fourth element of Mathies. Id. at 1163-64.

            In determining penalty amounts, the judge found that the level of gravity was “more than moderate” because the inspector testified that “in the event of a fire or explosion, due to the manner in which the lifeline was located, miners would either be delayed or prevented from using it to escape, which could result in a fatal injury due to carbon monoxide poisoning.” Id. at 1164 (emphasis original). However, he found low negligence and determined a penalty of $3,000 per violation to be appropriate, compared to the $39,161 proposed by the Secretary for the four citations. Id. at 1148, 1166; Stip. 6.

II.

Disposition

            The Secretary seeks review of the judge’s determination that the four violations of section 75.380(d)(7)(iv) were not S&S. She asserts that, in evaluating whether the violations were S&S, the judge should have assumed the occurrence of the sort of emergency contemplated by the standard. S. Br. at 8. The Secretary notes that, by its very nature, section 75.380(d)(7)(iv) is designed to protect miners only in the event of a mine emergency necessitating an evacuation. Id. at 10-11. The Secretary maintains that the judge’s approach is illogical because violations of emergency standards such as section 75.380(d)(7)(iv) would rarely, if ever, be found to be S&S, although those violations have an “especially high capacity for producing catastrophic injuries.” Id. at 12. She contends that Congress cannot have intended that violations of the lifeline requirements would be effectively immunized from the Mine Act’s graduated enforcement scheme. Id. at 15. The Secretary maintains that her interpretation is consistent with the statutory language of section 104(d)(1), the legislative history of the Mine Act, and its subsequent history contained in the Mine Improvement and New Emergency Response Act of 2006, Pub. L. No. 109-236, 120 Stat. 493 (“MINER Act”), which amended section 316 of the Mine Act. Id. at 12-14. The Secretary submits that her approach is consistent with Mathies, but that if the Commission were to deem it inconsistent, the Commission should defer to the Secretary’s reasonable interpretation of section 104(d)(1). Id. at 18-19.

            In response, Cumberland contends that the judge appropriately found that the Secretary did not meet her burden of establishing that the violations were S&S. Cumberland maintains that the Mathies criteria must be viewed “based on the particular facts surrounding the violation” and that an emergency cannot be assumed. Id. at 12-13. The operator emphasizes that the inspector admitted that his assumed emergency scenario “was not reasonably likely to occur.” Id. at 11 (citing Tr. 146-47). It asserts that the Secretary’s approach is contrary to longstanding Commission and courts of appeals precedent. Id. at 15, 25. Alternatively, Cumberland argues that, if the Commission assumes the occurrence of an emergency, the judge’s decision should be affirmed because substantial evidence supports the judge’s finding that the violations were not S&S. Id. at 27.

             A.        Legislative and Regulatory History of Section 75.380

            Before turning to the S&S question, we set forth the legislative and regulatory history of section 75.380 and the lifeline requirements.

            In 2006, in response to the tragic accidents at the Sago Mine and Aracoma Alma No. 1 Mine, Congress enacted the MINER Act, which amended the Mine Act in several respects. The MINER Act specifically requires operators to provide flame-resistant directional lifelines in escapeways “to enable evacuation.” 30 U.S.C § 876(b)(2)(E)(iv). Congress recognized that escape is the first and preferred option in a mine emergency and emphasized the importance of providing miners with a method to assist in locating and following an escape route. S. Rep. No. 109-365, at 6, 7 (2006). Similarly, when analyzing the escapeway provisions of section 75.380, the Commission, in The American Coal Co., 29 FMSHRC 941, 952 (Dec. 2007), stated that the “applicable statute and legislative history emphasize the need for miners on a working section to exit a mine expeditiously in emergency situations.” The Commission further noted that “[r]eady access to escapeways for all miners is a key component of an effective evacuation of a mine.” Id.

            On March 9, 2006, MSHA issued an Emergency Temporary Standard (“ETS”) because of the grave dangers that miners are exposed to during underground coal mine accidents and subsequent evacuations. Emergency Mine Evacuation, 71 Fed. Reg. 12252, 12253 (2006). The ETS enhanced the protection afforded to miners by broadening the requirements for lifelines. Id. at 12261. It added new section 75.380(d)(7) to require that each escapeway be provided with a continuous directional lifeline, made of durable material and marked with reflective material every 25 feet. Id. The lifeline must be located such that it can be used effectively to escape; equipped with directional indicators showing the route of escape; and attached to, and marking the location of, stored self-contained self-rescuers (“SCSRs”). Id. The preamble noted the importance of proper positioning of the lifeline regarding height, accessibility, and location, which “improves the ability of miners to effectively use the lifelines to escape during emergency situations.” Id. On December 8, 2006, MSHA issued its final rule, which stated that in the event of a mine emergency, the first line of defense is to evacuate the mine. Emergency Mine Evacuation, 71 Fed. Reg. 71430, 71431 (2006). The preamble provides: “To assist miners in evacuating the mine under conditions of panic and poor visibility, the final rule requires mine operators to provide . . . continuous directional lifelines.” Id. at 71431. The final rule remained unchanged from the ETS and required that the lifelines be located in such a manner that miners could use them effectively to escape. Id. at 71437.

            B.        The Mathies S&S Analysis     

            The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on 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. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (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.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 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. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984).

            The judge found that the first Mathies element was satisfied by his determination of the four violations of section 75.380(d)(7)(iv). 31 FMSHRC at 1163. He also found the second element, a discrete safety hazard contributed to by the violation, to be present by “the hazard of miners not escaping quickly in an emergency with the attendant increased risk of injuries due to a delay in escape.” Id. However, the judge determined that the Secretary had failed to meet her burden of establishing a reasonable likelihood of an injury-producing event, the third element of Mathies. Id.   

            Regarding the second Mathies element, the judge found that the hazard contributed to by the violations was “miners not escaping quickly in an emergency with attendant increased risk of injuries due to a delay in escape.” Id. (emphasis added). We conclude that this statement is an accurate description of the relevant hazard contributed to by the violations. The judge’s conclusion that the violations contributed to the hazard – the second Mathies factor – is supported by substantial evidence. The hazard contributed to by defectively placed lifelines necessarily involved consideration of an emergency situation.

            The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission concluded that the Secretary had presented sufficient evidence that miners who broke through into a flooded adjacent mine would face numerous dangers of injury. Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

            Hence, under PBS, in addressing the third Mathies element, the next question before the judge was whether there was a reasonable likelihood that this identified hazard would result in injury. Through the testimony of Inspector Whitehair, the Secretary presented abundant evidence regarding the likelihood of injury as a result of the identified hazard. The inspector testified at length as to the likelihood of injury caused by Cumberland’s positioning of the lifelines during an emergency evacuation. For example, he testified as to why a lifeline was needed and why miners could not use something else like a waterline to find their way out: “[I]f they needed to use something to find their way out, the miners are in so much smoke and so dense smoke that they can’t see. So if they are using a lifeline, that lifeline has directional cones on it to tell them they are going the proper direction and . . . if a miner is in a stressful situation of trying to escape from a mine disaster, that . . . trying to feel their way down a water line, it would be very easy to become confused and maybe turn around and go in the wrong direction.” Tr. 151. According to the inspector, this happened at the Alma Mine when miners tried to use a high voltage cable, which does not indicate direction, as a guide to find their way out of the mine. They became disoriented, and one miner went the wrong way and died. Tr. 151-52.

            With regard to the positioning of the J-hooks facing in different directions on one of the lifelines, as described in Citation No. 7019884, Inspector Whitehair testified that it was reasonably likely that injury would result from the hazard because of the length of the escapeway, the height of the lifeline above the mine floor, and the time it would take for miners to remove the lifeline from the J-hooks. With regard to the positioning of the lifelines above equipment on the track, as described in Citations Nos. 7019885, 7019887 and 7019889, the inspector stated that in addition to delays in escape because of problems reaching the lifelines, lead men following the lifelines in the smoke would walk into the end piece of equipment, causing injury, a fall, or a rupture of the breathing bag on the miner’s SCSR. Tr. 101, 127.

            Importantly, the inspector specifically testified as to the severity of injuries that would result from such a hazard, and that they would be fatal. Tr. 71, 110. He stated that the miners would either be delayed or unable to escape at all. Tr. 70. Inspector Whitehair further testified that as a result miners “would eventually succumb to [carbon monoxide] poisoning.” Tr. 71; 31 FMSHRC at 1164. He stated that “in the event of an emergency that the lifeline would have to be used, that the miners are wearing their SCSRs [and] . . . are not able to communicate verbally because they can’t take their SCSRs off. They are not going to be able to communicate any type of signal because they can’t see each other, and they are going to be panicked, scared to death, and . . . anything that would hinder or prevent them from escape could be a real catastrophe.” Tr. 108.

            Significantly, the judge’s gravity finding credited the inspector’s testimony with respect to the likelihood of serious injury as a result of miners not escaping quickly in an emergency. 31 FMSHRC at 1164. The judge found that the level of gravity was “more than moderate” because the inspector testified that “in the event of a fire or explosion, due to the manner in which the lifeline was located, miners would either be delayed or prevented from using it to escape, which could result in a fatal injury due to carbon monoxide poisoning.” Id. (emphasis in original).

            As explained above, under the PBS decision, the judge in this case should have determined whether there was a reasonable likelihood that the relevant hazard – miners not being able to escape quickly in an emergency situation – would cause injury. However, the judge instead focused on the likelihood of a fire or explosion occurring at the mine. In other words, the judge addressed the likelihood that an emergency might occur, not the likelihood that the hazard contributed to by the violation would cause injury. As in PBS, the judge has conflated “violation” with “hazard,” a position which the Commission has rejected. See PBS, 32 FMSHRC at 1280-81 (rejecting the operator’s argument that there must be a reasonable likelihood that the violation will cause injury).

             In so holding, the judge implicitly undercut his finding that a hazard had been established under the second element of the Mathies test. Without a mine emergency, the positioning of the lifeline would not constitute a danger to miners’ safety. The judge had already found that under element two of the Mathies test the violations in question would indeed contribute to the hazard of miners not being able to escape quickly in the event of an emergency. In effect, the judge imposed an additional test not set forth in Mathies – a test of whether emergency conditions would likely occur at the mine.

            The Commission has never required the establishment of the reasonable likelihood of a fire, explosion, or other emergency event when considering whether violations of evacuation standards are S&S. In Maple Creek Mining, Inc., 27 FMSHRC 555, 563-64 & n.5 (Aug. 2005), the Commission found that the failure to maintain an escapeway in safe condition was an S&S violation, noting that “in those circumstances [when] miners would be seeking quick exit from the mine in an emergency[,] . . . the potential for slips and falls would therefore be even greater during a mine evacuation.” In Rushton Mining Co., 11 FMSHRC 1432 (Aug. 1989), the Commission addressed whether an escapeway violation was S&S. In determining that the violation was not S&S, the Commission noted that the Secretary failed to show the reasonable likelihood of serious injury “in the event of an evacuation.” Id. at 1437. These decisions demonstrate that, with regard to evacuation standards, the applicable analysis under Mathies involves consideration of an emergency. See also Florence Mining Co., 11 FMSHRC 747, 756 (May 1989) (evaluating emergency escape methods in the context of a potential evacuation situation).

            Evacuation standards are different from other mine safety standards. They are intended to apply meaningfully only when an emergency actually occurs. When the citation for a violation of an evacuation standard is issued, presumably no emergency exists at that moment. While it is the hope and objective of all who work in mine safety that no emergency will ever occur in the future, if an emergency does occur, it is imperative that the requirements of the evacuation standard be met at that time. As the Secretary points out in this case, “lifelines serve no purpose except in the event of an emergency necessitating an evacuation in which visibility is poor.”

S. Br. at 11. We note with approval Judge Manning’s conclusion in Twentymile Coal Co., 29 FMSHRC 806, 810 (Sept. 2007) (ALJ), that “it would be too simplistic to hold that the violation [of the escapeway requirements in section 75.380] was not S&S because it was unlikely that there would have been an emergency evacuation of the section or it was unlikely that the miners would need to use the alternate escapeway in an emergency.”

            In this regard, Cumberland’s arguments would lead to a situation where the Secretary rarely, if ever, could prove that the violation of an evacuation standard is S&S. According to Cumberland, the inspector here could have designated the violations as S&S only if he also simultaneously discovered conditions at the mine which made it reasonably likely that there would be a fire or an explosion at that time. Moreover, even if a hypothetical mine had a completely ineffective evacuation system or no evacuation system at all, Cumberland’s arguments would lead to the conclusion that the violations could not be S&S unless the inspector found conditions in the mine that are reasonably likely to cause a fire or explosion. This conclusion defies logic and would lead to the absurd result of defeating the purpose of the standard. Central Sand & Gravel Co., 23 FMSHRC 250, 254 (Mar. 2001) (refusing to adopt an interpretation that would lead to an absurd result and defeat clear purpose of standard).

            Additionally, Cumberland’s arguments are flawed in that they overlook the passage of the MINER Act in 2006. The MINER Act specifically requires operators to provide flame-resistant directional lifelines in escapeways “to enable evacuation.” 30 U.S.C. § 876(b)(2)(E)(iv). As noted above, in enacting the MINER Act, Congress recognized that escape is the first and preferred option in a mine emergency and emphasized the importance of providing miners with a method to assist in locating and following an escape route. S. Rep. No. 109-365, at 6, 7 (2006). The statute’s legislative history further emphasizes the importance of planning for potential dangers to avoid future tragedies and of “[p]roviding underground personnel with assistance in locating and following escape routes, particularly in circumstances of diminished visibility.” Id. at 7. Given the purpose of the legislation and Congress’s emphasis on the importance of safe and effective mine evacuations in emergency situations, it would be incongruous for major violations of evacuation standards not to be S&S unless an inspector also happens to observe conditions that are reasonably likely to cause a fire or explosion. If important escapeway equipment is not functional when a mining catastrophe occurs, miners may be unable to escape, causing precisely the kind of disaster that the MINER Act was expressly enacted to prevent.

            Cumberland argues that the Secretary’s position that emergency conditions should be assumed when determining whether a violation of an evacuation standard is S&S, S. Br. at 8-9, is inconsistent with Mathies and related Commission precedents. In support of its position, Cumberland makes two related arguments. First, it maintains that every S&S determination must be based on the “particular facts” of each violation. C. Br. at 12. According to Cumberland, this means that the violation of an evacuation standard can be S&S only if the Secretary can prove that a confluence of factors was present so that a fire, explosion, or other emergency event was reasonably likely at the time of the citations. Id. at 16. Second, Cumberland contends that, if the judge evaluates the S&S determination in the context of emergency conditions, every violation of an evacuation standard will automatically become an S&S violation. Id. at 18. According to Cumberland, this would conflict with the well established principle that S&S determinations should be made on a case-by-case basis. Id. at 7, 12.

            We reject Cumberland’s arguments. First, the Commission is not changing Mathies. Rather, we are focusing on the specific “discrete safety hazard” at issue here, as required by the second element of the Mathies test. The judge defined this “discrete safety hazard” with clarity – “miners not escaping quickly in an emergency with attendant increased risk of injuries due to a delay in escape.” 31 FMSHRC at 1163. We accept this definition of the “discrete safety hazard” herein.

            This method of analysis – focusing on the clear identification of the “discrete safety hazard” in the second element of the Mathies test – does not foreclose consideration of the “particular facts” of the mine in question. The point can be illustrated by this case, in which element two of Mathies involved the question of whether the violations of the lifeline standard would contribute to a “discrete safety hazard.” Mathies, 6 FMSHRC at 3; 31 FMSHRC at 1163. Here the judge found that the “violations contributed to the hazard of miners not escaping quickly in an emergency with attendant increased risk of injuries due to a delay in escape.” 31 FMSHRC at 1163. This was completely consistent with substantial evidence showing, among other things, that the violations extended over a substantial distance and that the nature of the violations was such that they could be expected to cause miners to become confused during an emergency and to be delayed in escaping. However, if the violations had instead been relatively minor in nature and scope, a fact-finder may well not have found that the violations contributed to the hazard of miners being delayed in escaping from the mine in an emergency under element two of Mathies.

            Therefore, Cumberland is wrong in claiming that every violation of an evacuation standard will automatically be an S&S violation if viewed in the context of an emergency. Because the particular facts in a case may not establish that a violation of an evacuation standard contributes to a hazard which is reasonably likely to result in injury, not every violation of an evacuation standard will be S&S. See Rushton, 11 FMSHRC at 1436 (reasoning that the Secretary failed to establish that an escapeway violation contributed to the existence of a “discrete safety hazard” in an emergency situation requiring evacuation in view of the specific facts of the violation).

            We are also not persuaded by Cumberland’s argument that, even if the Commission considers the S&S question in this case in the context of an emergency, substantial evidence would support the judge’s finding that the violations were not S&S. C. Br. 27. Cumberland primarily relies on its fire suppression systems, carbon monoxide monitoring systems, the miners’ training on escape procedures, and the belt as an alternate lifeline to show that the violation would not be S&S in any event. In Buck Creek, 52 F.3d at 136, the court rejected the operator’s reliance on the additional safety measures as factors that would prevent an S&S finding. The court stated that the fact that the operator “has safety measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to miners . . . . the precautions are presumably in place . . . because of the significant dangers associated with coal mine fires.” Id. Indeed, the court rejected many of the systems that Cumberland has put forth as weighing against a finding of S&S. Id. (rejecting the relevance of mine’s fire safety systems, the carbon monoxide detection systems, the fire-retardant belt, the fire-suppression system, the mine rescue team, the fire fighting equipment, the mine’s ventilation that pulled smoke away from the miners). See also Amax Coal Co., 18 FMSHRC 1355, 1359 n.8 (Aug. 1996) (rejecting operator’s contention that its redundant fire suppressions system reduced the likelihood of serious injury); Amax Coal Co., 19 FMSHRC 846, 850 (May 1997) (same); Crimson Stone, 198 Fed. Appx. 846, 851 (11th Cir. 2006) (unpublished opinion upholding a S&S determination, stating that “[a]lthough these [extra] safety precautions are all well and good, they do not change the fact that a violation occurred” and if a miner had come into contact with an unguarded conveyor he could have been injured).

            Moreover, adopting Cumberland’s argument that redundant, mandatory safety protections provide a defense to a finding of S&S would lead to the anomalous result that every protection would have to be nonfunctional before a S&S finding could be made. Such an approach directly contravenes the safety goals of the Act. RNS Services, Inc. v. Sec’y of Labor, 115 F.3d 182, 186-87 (3rd Cir. 1997) (providing that the “canons of statutory construction” teach us to construe the Mine Act “broadly” so as to effectuate its remedial purpose of promoting miner health and safety).

            Although we could remand this case to the judge for further analysis that is consistent with the traditional Mathies framework as recently discussed in PBS, 32 FMSHRC at 1281, the judge has essentially made findings on elements three and four of the S&S test. The judge, in making his gravity determination for penalty assessment purposes, credited the testimony of Inspector Whitehair that “in the event of fire or explosion, due to the manner in which the lifeline was located, miners would either be delayed or prevented from using it to escape, which could result in a fatal injury due to carbon monoxide poisoning.” 31 FMSHRC at 1164 (citing Tr. 158) (emphasis original). Thus, the judge has determined that the hazard of not escaping quickly in an emergency event will result in injury of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4. As discussed, supra, at 8-10, abundant evidence in the record substantially supports the judge’s conclusion. Since the judge has already found that serious injuries would likely result in the event of an emergency evacuation because of the location of the lifelines, remand would serve no purpose. See American Mine Services, Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not necessary when record supports no other conclusion). Accordingly, we reverse the judge and find that the four violations are S&S.

III.

Conclusion

            We vacate and reverse the judge’s determination that the violations contained in Citation Nos. 7019884, 7019885, 7019887, 7019889 are not S&S. We conclude that each of the violations is S&S. Accordingly, we remand the four penalties associated with those citations for reassessment and reevaluation under Mine Act section 110(i), 30 U.S.C. § 820(i).

s/      

Mary Lu Jordan, Chairman

s/

Michael F. Duffy, Commissioner

s/

Michael G. Young, Commissioner

s/

Robert F. Cohen, Jr., Commissioner

s/

Patrick K. Nakamura, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance, MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Avram Weisberger

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021