understanding how msha [s different citations and orders ... · mine, where rescue and recovery...
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Understanding How MSHA’s Different Citations
and Orders Affect My Company
Tina M. Stanczewski, Esq., MSP
Law Office of Adele L. Abrams
www.safety-law.com
Statutory Framework
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Paths to Litigation
1. Receive Citation or Order (Section 103, 104, 107 [110])
2. Receive notice of Pattern of Violation & Subsequent Withdrawal Orders (Section 104(e))
3. Receive written complaint of Discrimination from employee with Letter from District Office (Section 105)
4. Receive 110(c) Letter from District Office
Contesting Citations
Two paths that generally merge Can file Notice Of Contest within 30 days of citation. This should
be done where high negligence, imminent danger, fatality or serious injury case, or where abatement is unreasonable. [CONTEST PROCEEDINGS]
Can contest proposed penalty assessment AND fact of violation, negligence and gravity once penalty assessment arrives (file within 30 days of receipt). THEN a petition will be filed by the Secretary which you answer. [CIVIL PENALTY PROCEEDINGS]
If an expedited hearing has not been held, then the CONTEST PROCEEDINGS and the CIVIL PENALTY PROCEEDINGS can be consolidated for one hearing.
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Section 103
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103(j)
In the event of any accident occurring in any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof. In the event of any accident occurring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine.
In practice, MSHA issues an oral 103(j) order (via telephone) once the incident is reported, and then changes the (j) order to a (k) order upon arrival
103(k)
In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.
30 U.S.C. § 813(k).
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103(a) Denial of Entry
Authorized representative of the Secretary shall have the right of entry to, upon or through any mine for the purpose of making any inspection or investigation under the provisions of the Act.
Denials of entry can be either: (a) direct denials involving confrontation; or (b) indirect denials involving interference, delay and/or harassment.
Penalty will be assessed
Either file notice of contest or await penalty assessment.
When to Contest Under 103?
Has an accident as defined really occurred?
Is the scope of the 103(k) Order too broad?
Are the abatement requirements related to the 103(k) Order too broad?
Are there unreasonable conditions that MSHA is requesting to lift the order that are unrelated, too cumbersome, or too expensive for the mine to implement?
For denial of entry, was inspector
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Accident Mine Act – Section 3 Definitions
(k) "accident" includes a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person;
30 CFR Part 50.2(h)
“Dirty Dozen” for immediate reporting (15 minutes) under 30 CFR 50.10
Failure to report results in minimum $5000 penalty for: fatalities, injuries or entrapment with reasonable potential to result in death (includes death by natural causes or non-mining causes)
Other categories include: hoist outage for >30 minutes, fires lasting >30 minutes, unplanned ignition of gases, dust, blasting agent, or explosives, unplanned roof or rib fall in active workings that impairs ventilation or impedes passage, injuries to persons off-site caused by mining activities, impoundment failures …
Scope of 103(k)
A 103(k) order should include mine areas that are critical to any investigation and in which there could reasonably be concern for miners’ safety, in particular, “affected areas of such mine.”
Depending on mine’s configuration, this could SHUT DOWN the entire mine
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Holding the Mine Hostage
When abatement measures are unreasonable or too costly, either your attorney or experts hired by your attorney will need to negotiate with MSHA’s team of inspectors and experts.
Piecemeal modifications may be made to permit work.
For serious events, attorney and experts hired by your attorney should be consulted immediately.
Getting the mine open quickly is the goal.
Contesting a 103(k)
30 days from issuance to file a Notice of Contest.
If the 103(k) Order has not been LIFTED on day 29, a Notice of Contest MUST be filed or you will lose your right to contest it.
You can contest the issuance and subsequent modifications.
An expedited hearing is likely, but ALJ will encourage “settlement”.
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Standard of Review: Abuse of discretion
It requires an agency “to examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” The “agency must cogently explain why it has exercised discretion in a given manner,” and that explanation must be sufficient for a court “to conclude that the agency’s action was the product of reasoned decision making.”
Lifting the Order
Via negotiation with MSHA, through hearing with ALJ, or
Negotiating the LIFTING of the Order with MSHA will be encouraged by the ALJ.
MSHA maintains broad discretion to request measures that normally would not be required.
Experts are KEY.
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Section 104
Types of 104(a) Issuances
Typical issuances for violations of 30 C.F.R. sections 47./50./56./57./62.
Requires:
a violation of a standard, regulation, or section of the Mine Act;
a hazard exists;
exposure to the hazard; and
degree of negligence by the mine operator.
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When to Contest a 104(a) Issuance
Is MSHA requiring an abatement that is unreasonable or unachievable?
Is jurisdiction an issue?
Is there a companion 104(b), 107(a) issuance?
Is it related to a 104(d) or 104(g) issuance?
Do you disagree with alleged violation and/or categorization?
Do you disagree with the penalty assessed?
How to Contest a 104(a) Issuance
Two options
File only penalty contest and subsequent answer
File notice of contest AND penalty contest with subsequent answer
File Notice of Contest within 30 days of issuance if
Abatement is unreasonable or unachievable
Jurisdiction is an issue
Issuance has a companion 104(b), 107(a) issuance
Issuance is related to a 104(d) or 104(g) issuance
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104(b) Failure to Abate
Upon a follow-up inspection of a coal or other mine, the inspector determines:
A violation not totally abated within the time originally fixed or as subsequently extended, and that the period of time for the abatement should not be further extended.
Then, the inspector issues an order to immediately cause all persons to be withdrawn from, and to be prohibited from entering, such area until such violation has been abated.
Can be issued to withdraw persons, equipment, or for failure to turn over documents (Part 50 audit).
Typically not assessed, but can incur fine of $7,500 per day until alleged violation abated.
When & How to Contest a 104(b)
Have you already complied with the abatement described in the citation?
Is the abatement being requested unreasonable or unachievable?
Is the scope of abatement too broad?
File Notice of Contest within 30 days of issuance
Negotiate with MSHA on the abatement and the discussions between management and MSHA officials on the scope and deadlines.
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104(d) Unwarrantable Failure
Citations/Orders under Section 104(d) of the Mine Act
Issued as high negligence or reckless disregard
Infers that a management agent “knew or should have known” of hazard – or was personally involved in the violation
These will trigger a “special investigation”
May trigger a criminal referral
Civil penalty may be “specially assessed”
104(d)(1) Issuances
104(d)(1) Citation
there is a violation of a mandatory health or safety standard;
the violation significantly and substantially contributes to the cause and effect of a mine safety or health hazard; and
there is an unwarrantable failure of the mine operator or contractor to comply with the standard.
104(d)(1) Withdrawal Order
One 104(d)(1) Citation issued AND either during same inspection or within 90 days of first (d)(1), inspector finds conditions that meet (d)(1) issuance (except S&S), inspector can issue Order
May be issued together on equipment or area
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104(d)(2) Withdrawal Order [CHAIN]
104(d)(1) Order issued
During next inspection, inspector finds alleged violations that meet 104(d) criteria (except S&S)
104(d)(2)s will be issued until mine receives “clean” inspection meaning no issuances that rise to the level of 104(d)
Example: ground control conditions under 56./57.3200
104(d) Factors Alleges aggravated conduct on the part of management
This means “reckless disregard, intentional misconduct, indifference, or a serious lack of reasonable care.
Factors considered are:
Time: how long has alleged condition existed
Extent: what is impact of alleged condition
Abatement: did operator make any efforts prior to issuance to correct alleged hazard
Obviousness: should operator have been aware
Notice: was operator aware greater efforts were necessary or under reasonable person test should he/she have known
Danger: how dangerous was the alleged condition
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Consequences of 104(d) Issuance
104(d) Chain
Mandatory Minimum Penalties / Special Assessments
Special Investigations under Section 110 of the Mine Act
Pattern of Violation Consideration
Flagrant Violations
Flagrant Designation
§110(b) of the MINER Act states:
Violations under this section that are deemed to be flagrant may be assessed a civil penalty of not more of $220,000. For purposes of the preceding sentence, the term ‘flagrant’ with respect to a violation means a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonable could have been expected to cause death, or serious bodily injury.
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When & How to Contest 104(d) Issuance ALWAYS, no question if FLAGRANT
If you can modify the original 104(d)(1) Citation to a 104(a) Citation, you can BREAK THE CHAIN that produced the 104(d)(1) Order and 104(d)(2)
Options for Contest
File Notice of Contest within 30 days of issuance AND
File Penalty Contest and Answer OR
File only Penalty Contest and Answer
104(g) Withdrawal of Miner - Training
104(g)(1): 1) miner has not received requisite safety training as determined under section 115 of this Act 2) miner must be immediately withdrawn until Secretary determines that such miner has received the training.
104(g)(2): No miner withdrawn under (g)(1) can be 1) discharged or discriminated against because of such order AND 2) CAN NOT suffer loss of compensation while training completion is occurring.
Part 46 and Part 48 Training Compliance
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When & How to Contest 104(g)s Are the issuances related to a 103(k) Investigation or Serious
Accident?
Are agents of management mentioned in the Citation?
Has your training plan be revoked?
Advisable to file Notice of Contest within 30 days AND
File Penalty Contest and Answer when issued
103(k) and 104(g) Issues
If under a 103(k) order, should you lay off workers pending investigation?
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104(e) Pattern of Violation
If MSHA determines the mine has a "pattern" of S & S violations, then a Pattern of Violations notice is issued.
Thereafter, any S & S violation found within 90 days would automatically trigger a withdrawal order.
Each additional S & S violation would mean another withdrawal order until the mine had a "clean" inspection with no S & S violations.
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Section 105
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Discrimination Claims Section 105C prohibits discrimination against miners (including
supervisors) who exercise safety and health rights
Company and its agents can be fined by MSHA and ordered to provide reinstatement, back pay, attorney fees etc.
MSHA will represent the miner at no charge if it believes that discrimination occurred
Temporary reinstatement may be ordered if MSHA certifies its charges –will last until litigation is completed if ALJ grants motion.
The miner can proceed pro se (private right of action) even if MSHA finds no discrimination occurred!
When & How to Contest 105(c)s ALWAYS
Company will receive letter from MSHA with attached employee complaint
This notifies you that special investigation will occur.
Likely to receive Request for Temporary Reinstatement to which you File a Request for Hearing
Likely to receive a Complaint of Discrimination to which you File Answer.
Process can move quickly.
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Section 107
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107(a) Imminent Danger
If, upon any inspection or investigation of a coal or other mine, ... an inspector finds that an imminent danger exists: He shall determine the extent of the area affected and issue an order requiring all persons ... Be withdrawn and prohibited from entering the area until the inspector determines the conditions or practices which caused such imminent danger no longer exist.
Non-Assessable
107(a) Imminent Danger Factors
Defined as: "the existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated."
The courts have noted that an imminent danger exists only when the hazardous condition has a reasonable potential to cause death or serious injury within a short period of time.
An imminent danger order cannot be issued for an accident which has already occurred unless the imminence still exists.
Immediate physical exposure to the imminent danger does not have to be witnessed by the inspector to issue a 107(a) order.
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107(a) Imminent Danger Factors
When an imminent danger is observed, the inspector must, as soon as possible and at the time the imminent danger is being observed, either issue a written or an oral Section 107(a) order.
An oral order should be documented in writing as soon as practical.
If an oral Section 107(a) order is issued, it should be stated in precise terms such as: "I am issuing you a Section 107(a) imminent danger order." At the least, the inspector must use the words "imminent danger" or "107(a)" at the time the oral order is issued.
When & How to Contest
Do you plan on contesting the companion Section 104 issuance?
Do you have similar circumstances at other mines that place you on notice about this “imminent danger”?
Is the abatement for the imminent danger too costly or unreasonable?
107(a) issuance can be supportive evidence of severity of Section 104 issuance.
To contest, you must file Notice of Contest within 30 days of issuance.
You can contest companion Section 104 at same time or wait for penalty assessment.
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Section 110
Personal Penalties - Section 110C
Developed from underlying action against operator such as 104(d) or 107(a) issuance.
MSHA can impose personal civil penalties of up to $70,000 per citation against any agent of company that engaged in aggravated conduct exceeding ordinary negligence
Every citation that is specially assessed and involves a corporation or LLC is reviewed for Section 110C action.
Owners of S Corporation can not have 110s filed against them.
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Legal Process
Special Investigation Occurs.
Investigator provides notes and recommendation internally.
If MSHA proceeds, agent will receive letter in mail outlining intent to assess penalty.
Agent can request conference with MSHA. Penalty could be dismissed.
If not dismissed, Penalty Assessment received. Must be contested in 30 days.
Petition filed by Secretary and must be Answered in 30 days.
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Criminal Prosecution
Mine Act has statutory provisions for criminal penalties (Section 110)
Section 110F – Class E felony for falsification of records or false statements. This imposes up to 5 years in prison and criminal fine of up to $250,000
Section 110D – Class A misdemeanor for willful or knowing violations of MSHA rules or orders. This imposes prison sentence of up to 1 year, and a $250,000 fine ($500,000 for second offense, with an “upgrade” to a Class E felony).
Criminal Prosecutions
If you decide to give a statement, you have the right to counsel.
Nothing is ever “off the record” with MSHA!
Special investigations triggered by 104(d) citations/orders, 107(a) orders, 104(g) orders that are “high” or “reckless disregard” negligence classification.
Every citation subject to special investigation is reviewed for criminal referral to US DOJ.
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Contest Paths
10-Day Conferences Pro: May reduce number of contested cases if issues on
negligence/gravity can be resolved early in the process; may be opportunity to address infeasible abatement requirements; if 104D citations can be reduced, eliminates 110C potential and related special investigations.
Cons: MSHA specifically states these are not “settlements” and so all information submitted can be used against mine operator and agents in court; MSHA can make citations worse (not just give relief); MSHA states it will only consider factual information (not legal arguments); MSHA will not share its file information with operator so operator will not know the strength of agency’s evidence.
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Handling a 10-Day Conference
Make sure no statements are incriminating;
Check with counsel if discussing any 104D citations/orders, get advice on whether to have counsel prepare conference statement or handle telephonic conference - and do NOT have the “target” present at the conference;
Some districts will NOT allow attorney to conduct conference with you
Do not provide MSHA with any privileged documents (could waive privilege for others);
Recognize that MSHA will rarely vacate anything in conference
If Section 104D involved or significant abatement issues, may be sensible to file NOC within 30 days and request expedited hearing;
Mine operator can still contest citation and penalties if it doesn’t agree with conference outcome.
Filing a Notice of Contest
Attach citation/order
Draft Letter/Notice outlining complaint
You are the moving party
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Penalty Contest & Answer
Decide on whether you want to contest all citations on A.C. form.
Mail A.C. form within 30 days of receipt.
Answer petition within 30 days of receipt.
Review Exhibit A for accuracy.
Defensive StrategiesREMEMBER: MSHA still has the burden of proving the actual violation, plus the level of negligence and gravity! Do not assume these are correctly characterized.
Any special assessments can be challenged and may be able to reduce penalties to “regular” under 30 CFR 100.3 even if citation is not altered
Consider:
For negligence: who (if anyone) had actual knowledge, is MSHA just inferring “knowledge” based on the requirements, was the mine cited for this in the past, how long did condition exist, was it obvious, were the miners involved trained properly, is there enforcement of rules; were contractors involved (and do contracts and training place them on notice of MSHA requirements)
For gravity: if citations were issued in past for similar conditions, how were they rated; were miners actually exposed to a hazard (e.g., was equipment in operation); do circumstances make it likely that an injury would occur; if an injury would occur, would it require medical treatment or only first aid?
