The U.S. Department of Labor's Mine Safety and Health Administration (MSHA) has a number of important tools for reducing injuries and illnesses in the nation's mines. Among these are various enforcement actions that MSHA can use to help ensure that dangerous conditions or practices are corrected.
Civil Penalties Imposed for Violations
Under the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), MSHA inspectors must issue a citation or order for each violation of a health or safety standard they observe. Each issuance entails a civil penalty. Except for “flagrant” violations, these fines range from $112 to $70,000 per violation. The MINER Act established a maximum $242,000 penalty for “flagrant” violations, a minimum $5,000 and maximum $65,000 penalty for failure to notify MSHA within 15 minutes of fatal or certain life-threatening events, and minimum penalties of $2,000 and $4,000 respectively for violations caused by an unwarrantable failure to comply as described in sections 104(d)(1) and 104 (d)(2) of the Mine Act.
MSHA's Office of Assessments, Accountability, Special Enforcement and Investigations (OAASEI) proposes the penalties. Most violations are assessed according to a published formula that considers five factors: 1) history of previous violations; 2) size of the operator's business; 3) any negligence by the operator; 4) gravity of the violation; and 5) the operator's good faith in trying to correct the violation promptly. These factors are determined from the inspector's findings, MSHA records, and information supplied by the operator. A sixth factor, the effect of the penalty on the operator's ability to stay in business, is considered when, after receiving a proposed assessment, the operator submits information on the adverse effect of the penalty on the operator's business.
Violations not reasonably likely to cause a reasonably serious injury or illness (Non S&S) which are corrected promptly are often assessed the minimum $112 penalty. Over half of the Non S&S citations receive the minimum proposed penalty.
In some cases (often involving fatalities or serious injuries), MSHA determines the formula will not yield an appropriate penalty. In these cases, MSHA waives the formula and proposes a “special” assessment.
Civil penalties are assessed against the mine operator or independent contractor. However, agents of corporate operators may individually be fined for violations they knowingly authorized, ordered or carried out. Individual miners can be fined for violating smoking prohibitions.
"S & S"
Several provisions of the act concern "significant and substantial" violations. A significant and substantial (or "S & S") violation is one that is reasonably likely to result in a reasonably serious injury or illness. In evaluating each citation, the MSHA inspector determines whether or not the violation is S & S.
Orders of Withdrawal
In certain situations, the law provides that MSHA may order miners withdrawn from a mine or part of a mine. Some of the most frequent reasons for orders of withdrawal are 1) unwarrantable failure to comply; 2) withdrawing miners with inadequate training; and 3) failure to correct a violation within the time allowed.
If an MSHA inspector finds an S & S violation resulting from an "unwarrantable failure" by the operator to comply with a standard, the inspector incorporates that finding in the citation. If another violation, also due to unwarrantable failure, is found during the same inspection or within 90 days, MSHA issues a withdrawal order until it is corrected. Thereafter, any violation similar to the one that led to this withdrawal order will trigger another withdrawal order. This applies until an inspection of the mine discloses no similar violations.
Pattern Of Violations
If MSHA determines that a mine has a "pattern" of S & S violations, the law and regulations provide that the agency shall issue a Pattern of Violations notice to the operator. 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.
The Mine Act prohibits discrimination against miners, their representatives, or job applicants for exercising their safety and health rights. MSHA investigates all complaints of discrimination. If evidence of discrimination is found, the Labor Department can take the miner's case before the independent Federal Mine Safety and Health Review Commission. In some cases, miners who have been fired can be temporarily reinstated in their jobs while a discrimination complaint is being adjudicated. More detailed information on Miners' Rights can be found at http://www.msha.gov/S&HINFO/minersrights/minersrights.asp
The Mine Act provides for criminal sanctions against mine operators or their agents who willfully or knowingly violate safety and health standards. MSHA initially investigates these possible violations; if evidence of such a violation is found, the agency turns its findings over to the Justice Department for prosecution. Any person who gives advance notice of an inspection may be prosecuted criminally.
Before any citation or order is assessed, the operator or miners' representative may request a conference with an MSHA supervisor or conference officer about any disagreement with the inspector's findings. An operator or miners' representative who disagrees with any MSHA enforcement action or proposed civil penalty assessment is entitled to a hearing before an administrative law judge (ALJ) with the Federal Mine Safety and Health Review Commission. The administrative law judge's decision can be appealed to the Federal Mine Safety and Health Review Commission and thereafter to the U.S. Court of Appeals.
Financial Hardship Claim
Title 30 CFR 100.3(h) explains the process for considering whether to adjust a proposed penalty based on the effect it may have on the operator's ability to continue in business. An operator may provide financial documents (i.e. income tax returns, financial statements, etc.) to its local MSHA District Manager demonstrating that payment of the penalty will affect the operator's ability to continue in business. If after MSHA's OAASEI analyzes the information submitted, the Agency determines that the penalty will adversely affect the operator's ability to continue in business, the proposed penalty may be reduced.