The US Court of Appeals for the District of Columbia Circuit said the violation fell under the Federal Mine Safety and Health Act of 1977, known as the Mine Act, regardless of the likelihood of a mine emergency actually occurring at the time of the violation.

“The court unanimously upheld the secretary of labor’s interpretation that, in evaluating the significant and substantial nature of violations of standards that come into play only in the event of an emergency, one must assume the occurrence of the emergency,” US Mine Safety and Health Administration officials said.

“The court agreed that ‘emergency safety standards are fundamentally different from non-emergency standards because they are designed to apply meaningfully only in times of emergency’.”

The ruling, which was made June 7, upheld a determination initially made by the Federal Mine Safety and Health Review Commission stemming from an appeal case involving Cumberland Coal Resources’ Cumberland mine in Greene County, Pennsylvania.

The issue at Cumberland began in December 2007, when an MSHA special investigator’s inspection of four escapeways over a four-day period resulted in a citation for each, alleging a violation of the lifeline requirement.

The investigator designated each violation as S&S, or significant and substantial, on the grounds that, in the event of an emergency that required miners to use the lifeline, the location of the lifeline would have delayed miners' escape and that the delay would have been reasonably likely to result in serious injury or death.

“Cumberland argued that the commission applied the wrong standard when it reversed an administrative law judge’s determination that the violations were not significant and substantial, and that even if it applied the correct standard, its findings were not supported by substantial evidence,” MSHA said.

The regulation at issue in the case was implemented as a result of Mine Act amendments enacted following the fatal Sago, Aracoma and Darby mine accidents in 2006. In all, miners were unable to successfully evacuate their respective mines.

Specifically, the Mine Improvement and New Emergency Response Act of 2006, or MINER Act, requires mine operators to provide flame resistant and directional lifelines in escapeways to assist evacuation.

The US Secretary of Labor promulgated an emergency temporary standard, which became final, in the months following the fatal accidents. This standard required lifelines be located in a manner for miners to use them effectively to escape.

“Mine emergency protections need to be in place before an emergency occurs,” assistant secretary of labor for mine safety and health Joseph Main said.

“The court recognized that the absence of such protections is a serious matter, to be taken seriously if miners are to have these protections when they need them the most.”

Under Section 104(d)(1) of the Mine Act, a significant and substantial violation exists if the authorized representative finds there has been a violation of a mandatory health or safety standard and also finds the 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”

Such a finding, according to MSHA regulations, is a precondition for enhanced enforcement actions under the Mine Act.