FMSHRC to Revisit 2009 Lifelines Case

Oral arguments on March 31 will be made as the commissioners decide whether four violations by Cumberland Coal Resources, LP were not "significant and substantial."

The Federal Mine Safety and Health Review Commission (FMSHRC) has scheduled oral arguments for March 31 in the case of Secretary of Labor v. Cumberland Coal Resources, LP. The issue is whether Administrative Law Judge Avram Weisberger correctly decided in September 2009 that four violations by the coal company were not "significant and substantial" because there was no evidence "that, in normal mining operations, would have tended to establish that there was a reasonable likelihood of a fire or explosion."

Weisberger's decision upheld the citations issued by MSHA special investigator Thomas H. Whitehair II in December 2007 against Cumberland. The citations alleged the company violated the regulation requiring continuous, durable lifelines to be available in escapeways and "located in such a manner for miners to use effectively to escape." Whitehair concluded the lifelines in the Cumberland coal mine could not be effectively used, however, because they were hung by hooks from the roofs of the escapeways, with waterlines and cables crossing beneath them at various points. Whitehair concluded miners, who would be effectively blind while trying to escape after an explosion, could not have pulled the lifelines down and followed them effectively.

"I believe that anything that would delay the miners' escape by trying to flotate and flip a lifeline with a stick when you can't see what you are even doing to get on that lifeline, to me, it's not adequate and it can't be safely used to escape the mine," Whitehair testified, according to the ALJ's decision. "The lifeline should be readily available for a miner to be able to get on that lifeline and quickly escape. I think it would take considerable doing and a considerable amount of time to do it. I mean, you have to bear in mind that you are totally blind. You can't see. You have no sense of direction, you know, and all you are trying to do is blindly try to flip this out of a hanger."

A "significant and substantial" violation is described in section 104(d)(1) of the Mine Act as a violation "of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard." Weisberger concluded no evidence had been prsented that a fire or explosion was likely, so the violations were significant and substantial. He ordered Cumberland to pay a total civil penalty of $14,935.

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