Might Doesn't Make Right - Aggregates Manager

    5 August 2010

    I try not to write about “purely legal” topics but a recent decision could have an effect on everybody— even though, at first blush, it may not seem like it. The story is about nothing more (or less) than a broken leg.

    It seems every time I talk to a client about their latest citation, the story involves the Mine Safety & Health Administration (MSHA) taking a
    more expansive view of the regulation itself, or, if not the regulation, whether the alleged citation was significant and substantial (S&S). As
    we all know by now, the test for S&S was set out in a decision issued in 1981 (Cement Division, National Gypsum Co. 3 FMSHRC 822). That
    case, and the cases that followed and explained it, essentially held that a violation is S&S if it meets a two part test: First, the violation
    must be reasonably likely to result in an accident and second, that accident must be reasonably expected to result in a serious injury.
    Despite that well-established and long-standing test, I hear more and more stories about how MSHA came up with a very convoluted and
    improbable set of events that could lead to an accident and an explanation that, while the accident really wasn’t reasonably expected to
    result in a serious injury, a person “could die.”

    To read the full article, click below.

    Reprinted with permission from Aggregates Manager Magazine.