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Section 104 .... Citations and Orders

I.104-1 Flagrant Citations and Orders
The Mine Improvement and New Emergency Response Act of 2006 (MINER Act) provides for the assessment of a significant civil penalty for a flagrant violation.   The MINER Act defines a flagrant violation as “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 reasonably could have been expected to cause, death or serious bodily injury.”
Only violations of mandatory health or safety standards may be classified as flagrant.  While most sections of the Mine Act are not mandatory health or safety standards, violations of interim mandatory health and safety standards found in Titles 2 and 3 of the Mine Act, which are not superseded by mandatory health and safety standards, may be classified as flagrant.
Any violation that meets either the reckless failure or the repeated failure screening criteria below must be evaluated for possible classification as a flagrant violation.
Reckless failure criteria:

  1. Citation/order is evaluated as significant and substantial (S&S)
  2. Expected injury/illness is evaluated as at least permanently disabling
  3. Citation/order is evaluated as unwarrantable failure
  4. Negligence is evaluated as reckless disregard

Repeated failure criteria:

  1. Citation/order is evaluated as significant and substantial (S&S)
  2. Expected injury/illness is evaluated as at least permanently disabling
  3. Citation/order is evaluated as unwarrantable failure
  4. Two prior “unwarrantable failure,” S&S violations of the same health or safety standard were cited within the past 15 months.  This includes violations cited previously on the same day or during the same inspection.  Prior violations must be of the same subsection of the standard cited (e.g. 56/57.14201(a)).  However, the prior violations need not cite the same distinct hazard.  For example, an order asserting a violation of 75.220(a)(1) because entries were driven at widths exceeding the roof control plan minimum distance may be considered for flagrant classification with two prior 75.220(a)(1) violations cited because roof bolts were not inserted at distances specified in the roof control plan.

District Managers may recommend violations that do not meet the reckless or repeated failure criteria above, but which meet the broader statutory definition of a flagrant violation, for classification as flagrant.

104(a) Citations and Orders
Section 104(a) is a major tool for obtaining compliance with the Act, and the mandatory health or safety standards, rules, orders, or regulations. Violations shall be cited by the inspector, giving the operator time for abatement of the violation(s). The citations shall be issued under Section 104(a) or, as appropriate, under Section 104(d) of the Act. After the inspection, the inspector shall meet with the operator or his agent to discuss the violation.

Separate citations shall be issued for: violations of separate standards on one piece of equipment; violations of separate standards in a distinct area of a mine; identical violations on separate pieces of equipment; and, identical violations in distinct areas of a mine. For example, if two haul trucks each have the same violation, there will be two separate violations cited. Likewise, if two distinct areas of a mine have loose rock in the roof or back, there will be two separate violations cited.

However, where there are multiple violations of the same standard which are observed in the course of an inspection and which are all related to the same piece of equipment or to the same area of the mine, such multiple violations should be treated as one violation, and one citation should be issued. For example, "Loose roof or ground was observed in four places along the haulageway between 3 switch and No. 4 x-cut" or, "At the crusher power control panel, insulated bushings were not provided where insulated wires entered five of the metal switch boxes."

When an inspector issues a Section 104(a) citation, the time for abatement should be determined, whenever practical, after a discussion with the mine operator or the operator's agent. The degree of danger to miners is the first consideration in determining a reasonable time for abatement. Upon expiration of the time fixed for abatement, the inspector should review the circumstances, and if circumstances so justify, extend the abatement period. If no extension of time is justified, and the violation is unabated, the inspector shall issue a withdrawal order under Section 104(b). Upon abatement of the violation, the 104(b) withdrawal order will be terminated.

The filing of a petition for modification by an operator shall be a consideration in determining the reasonableness of the time fixed for abatement of any violation which relates to the safety standard sought to be modified. However, when a petition for modification is found to be the appropriate basis for an extension of an abatement period, the inspector must expressly state in the extension the condition(s) under which the abatement period has been extended.

If an operator does not comply with an order, the inspector shall issue a Section 104(a) citation citing the appropriate section of the Act violated (e.g., 104(b), 107(a), 104(d)(1), 104(d)(2), 104(e)(1), etc.).

Actions to be taken in the case of a denial of entry (Section 103(a) of the Act) where a citation and order have been issued because of the denial are discussed in this Manual under Section 103(a).

104(d) Unwarrantable Citations and Orders
In 1988, the Federal Mine Safety and Health Review Commission adopted new language to describe operator conduct which constitutes an unwarrantable failure to comply for purposes of Section 104(d) of the Mine Act. The Commission held that a violation is caused by an unwarrantable failure if the operator has engaged in "aggravated conduct constituting more than ordinary negligence."

The Commission pointed out that its statement of the standard of conduct for unwarrantable failure "is fully consistent with the manner in which the Secretary enforces the Mine Act." Accordingly, violations caused by a high degree of operator negligence or reckless disregard should continue to be evaluated by inspectors for findings of unwarrantable failure to comply. However, evidence of moderate negligence will generally not support unwarrantable failure findings.

Factors to look for when making an unwarrantable-failure-to- comply determination include the amount of time the violation has been left uncorrected, whether the hazard created by the violation is particularly serious thus warranting increased attention from the operator to prevent or correct it, whether the violation is repetitious of a previous violation, whether the violation was a result of deliberate activity by the operator, or whether the operator knew or had reason to know that its action(s) violated a mandatory standard. Citations and orders should clearly document the facts relied upon by the inspector in making the determination. Any one of the circumstances above may constitute sufficient grounds for an unwarrantable failure citation or order.

If an operator at a certain mine is under the 104(d) unwarrantable sequence, and if that operator sells that mine, the new mine owner does not normally inherit the previous owner's unwarrantable sequence. This is true for all cases, except where there has been a change in name only or where the ownership change is merely a paper change. If the new owner/operator is essentially the same as the previous owner/operator, then the unwarrantable sequence is to remain in effect.

104(d)(1)/(e)(1)   Guidelines for Determining "Significant and
Substantial" Violations

A violation of a mandatory health or safety standard is significant and substantial ("S&S") if the violation "significantly and substantially contributes to the cause and effect of a coal or other mine safety or health hazard...." The Federal Mine Safety and Health Review Commission (Commission) has held that to establish that a violation of a mandatory safety or health standard is "S&S" the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety or health standard; (2) a discrete safety or health hazard -- that is, a measure of danger to safety or health -- contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury or illness; and (4) a reasonable likelihood that the injury or illness in question will be of a reasonably serious nature. All four of these findings must be made before a violation can be designated as "S&S."

Finding 1:   An Underlying Violation of a Standard

The first finding required by the Commission's "S&S" test, i.e., the underlying violation of a mandatory safety or health standard, is satisfied whenever there is a violation of a safety or health standard. Only violations of standards (requirements promulgated under 30 U.S.C. 811), as opposed to violations of regulations (requirements promulgated under 30 U.S.C. 957), can be designated as "S&S." Violations of 30 CFR Parts 46, 47, 48, 49, 56, 57, 58, 62, 70, 71, 72, 75, 77, and 90 are violations of standards that can be designated as "S&S."

Finding 2:   A Discrete Safety or Health Hazard

The second finding required by the "S&S" test, i.e., a discrete safety or health hazard, that is, a measure of danger to safety or health contributed to by the violation, is generally satisfied whenever there is a violation of a standard.

Finding 3:   A Reasonable Likelihood of Injury or Illness

The third finding required by the "S&S" test, i.e., a reasonable likelihood that the hazard contributed to will result in an injury or illness, is more difficult to establish. Factors such as the fatality and injury or illness frequency associated with the violation in the general industry are relevant but must be tied to an evaluation of the particular circumstances surrounding the violation at the mine in question.

If no miners were exposed to the hazard at the time of the violation, the violation still might be "S&S" if a miner was exposed to the hazard before the inspector observed the violation or if it was reasonably likely that a miner would be exposed to the hazard if normal mining operations were allowed to continue.

For violations involving the hazards of ignition or explosion, the Commission has developed an analytical approach for determining whether there is a "reasonable likelihood" of injury or illness. There must be a "confluence of factors" to create a reasonable likelihood of injury or illness. The Commission has upheld a judge's finding that a permissibility violation was not "S&S" because there was no reasonable likelihood that the low levels of methane detected would ever reach the explosive range.

In 1995, a court of appeals held that the presence of safety measures to deal with a fire, including a fire suppression system, did not mean that fires do not pose a serious safety risk to miners and rejected an argument that the presence of such redundant safety features negated an "S&S" finding. Since 1995, the Commission has adopted the reasoning in that case and has rejected an argument that an accumulations violation was not "S&S" because there was fire-fighting and fire detection equipment in the cited area.

Thus, it is doubtful that redundant safeguards should be considered in the "S&S" analysis -- particularly when analyzing fire and explosion hazards.

Finding 4:   A Reasonable Likelihood of Serious Injury or Illness

The fourth finding required by the "S&S" test, i.e., a reasonable likelihood that the injury or illness in question will be of a reasonably serious nature, requires an independent determination that the injury or illness in question would be reasonably serious in the inspector's judgement. A determination that the injury or illness is reasonably likely to result in lost workdays or restricted duty and/or be permanently disabling or fatal is consistent with an "S&S" determination.

Except for violations of 30 CFR 56/57.5005 involving listed nuisance particulates and silver metal (other than soluble compounds of silver) between 0.01 mg/m3 and 0.1 mg/m3, violations of health standards establishing a threshold limit value or exposure limit are presumptively "S&S." However, when miners are not actually exposed to excessive concentrations because they are utilizing personal protective equipment in accordance with applicable MSHA standards, the violation usually should be considered "non-S&S" unless there is a reasonable likelihood that other miners were exposed, or would have been exposed in the future if the citation had not been issued and those miners were not, or would not have been, wearing personal protective equipment in accordance with applicable MSHA standards.

Specific Guidelines. A citation which involves a violation of the Act, and an order under the Act or a regulation, and not a mandatory health or safety Standard, cannot be designated as "S&S". The plain language of Section 104(d)(1)of the Act indicates that only a violation of a "mandatory health or safety standard" can be designated as "S&S". Because Section 3(1) of the Act defines a "mandatory health or safety standard" as "the interim mandatory health or safety standards established by titles II or III of the Act, and the standards promulgated pursuant to title I of [the] Act," there is no statutory authority for violations of provisions of the ACT other than interim standards or violations of regulations to be designated as "S&S". See Cyprus Cumberland Resources v. FMSHRC, 195 F.3d 42, 45-46 (D.C. Cir. 1999) (holding that an "S&S" finding is permissible only in a citation charging violation of a mandatory safety or health standard, and not in a citation charging a violation of a regulation). See also Lexicon, Inc. d/b/a Schueck Steel Co., slip op., FMSHRC Docket Nos. CENT 2001-370-M, 2002-49-M, 2001-13-M (ALJ) affirming a violation of Section 103(k) but finding that because this was "a violation of the Act" and not of a mandatory health or safety standard, it could not be designated "S&S").

MSHA Form 7000-3
If an inspector determines that a violation is "S&S," that determination should be consistent with information recorded on the Inspector's Evaluation Section of MSHA Form 7000-3, Mine Citation/Order form.

Finding that an injury or illness has occurred is consistent with an "S&S" finding as long as the injury or illness is the result of the violative condition. If it is not, the inspector must make an independent judgment as to the reasonable likelihood of an injury or illness resulting from the violative condition.

Finding that an injury or illness is "highly likely" to occur or "reasonably likely" to occur is consistent with designating the violation as "S&S."

Finding that the injury or illness can reasonably be expected to result in "lost workdays or restricted duty," and/or be "permanently disabling" or "fatal" is consistent with designating the violation as "S&S."

If an injury or illness has occurred but it is less serious than that which could reasonably be expected to occur as a result of the violation, the inspector may still determine that the violation is "S&S." The inspector must make an independent judgment as to whether the violation was reasonably likely to result in a serious injury or illness, even though it did not in this particular case.

104(d)(2) Unwarrantable Failure Orders
Section 104(d)(2) of the Act refers to unwarrantable failure withdrawal orders and requires that an inspection with no similar violations (clean inspection) be conducted before the 104(d)(2) order sequence is terminated. This "clean inspection" may be accomplished within the framework of a regular inspection of the mine in its entirety and/or within the framework of any other inspection conducted for enforcement purposes where there are no 104(d)(2) violations. The Federal Mine Safety and Health Review Commission has stated that when 104(d)(2) orders are issued, the burden of establishing that an intervening "clean inspection" has not occurred rests with MSHA.

104(f) Respirable Coal Dust Citations
All citations for exceeding the applicable limit on the concentration of respirable dust are issued under Section 104(a), Section 104(d), or Section 104(e) of the Act, as applicable.

104(g)(1) Orders of Withdrawal - Untrained Miners
Section 104(g)(1) of the Mine Act provides for the withdrawal of untrained miners from a mine until they receive the minimum training required by Section 115 of the Mine Act and 30 CFR Part 48. The purpose of a Section 104(g)(1) order is to eliminate the hazard that untrained or inadequately trained miners pose to themselves and others.

Sections 48.5, 48.6, 48.7, 48.8, and 48.11 are the only sections of Subpart A that may be cited under 104(g) for untrained miner violations occurring at underground mines. Sections 48.25, 48.26, 48.27, 48.28, and 48.31 are the only sections of Subpart B that may be cited under 104(g) for untrained miner violations occurring at surface mines and surface areas of underground mines.

Citations will not be issued in lieu of Section 104(g)(1) orders except if the miner cannot be trained because, for example, the miner is no longer employed at the mine, or the miner was fatally injured.

When miners have been trained, but there are violations, for example, involving training plans, cooperative training programs, records of training, compensation for training, or untimely training, an order of withdrawal is inappropriate.

The number and type of citations or orders to issue are as follows:

  1. For Violations Involving More Than One Miner
    When more than one untrained miner is to be withdrawn from a mine, a single 104(g)(1) order will be issued, provided that the training violation is the same for all of the miners. Where multiple miners are involved and different violations of the training requirements have occurred, separate orders of withdrawal will be issued. For example, if eight different underground miners did not receive requisite safety training, (three did not receive new miner training, two were not task trained, and three missed annual refresher training), three separate Section 104(g)(1) orders would be issued, one citing 30 CFR 48.5, one citing 30 CFR 48.7, and one citing 30 CFR 48.8. If all eight miners missed annual refresher training, a single 104(g)(1) order would be issued.

  2. For Violations Involving Only One Miner
    If only one miner is involved but two or more sections of Part 48 have been violated, the violations would be written under one order. For example: one underground miner was not task trained and also missed annual refresher training. One Section 104(g)(1) order would be issued citing 30 CFR 48.7 and 30 CFR 48.8. Two violation evaluations must be made; one to evaluate the task training violation and one to evaluate the annual refresher violation.

  3. For Violations Involving Employees of Independent Contractors
    An order will be issued under Section 104(g)(1) of the Act to the direct employer of any miner who has not received the required training. Care should be taken when issuing a Section 104(g)(1) order to an independent contractor when several contractors or subcontractors are present at the mine. If uncertainty exists as to whom the direct employer is, the order would be issued to the operator with the greatest physical presence at the mine. Any discrepancies that may arise after the miner has been withdrawn may be resolved through subsequent modification action.

    Independent contractors may comply with the Part 48 requirements by either making arrangements to have their employees trained under an existing approved training plan and program, or by filing and adopting their own approved training plan.

    Citations will not be issued in conjunction with Section 104(g)(1) orders for the same violation except in instances of overlapping compliance responsibility. This overlapping compliance responsibility means that there may be circumstances in which it is appropriate to issue citations or orders to both the independent contractor and the production-operator. For instance, if an untrained miner was the employee of an independent contractor and the production-operator had agreed to provide the training in accordance with the mine's approved training plan but failed to do so, a Section 104(g)(1) order would be issued to the independent contractor to withdraw the untrained miner and a citation under Section 104(a) or (d)(1) or an order under Section 104(d)(1) or (2), as appropriate, will be issued to the production-operator.

104(h) and 107(d) Vacating Citations and Orders
Care must be taken when issuing citations and orders so that subsequent corrective action by MSHA is seldom necessary. However, citations or orders are occasionally issued in error and must be modified or vacated by either inspectors or district officials. Sections 104(h) and 107(d) of the Act state the legal authority of inspectors or their supervisors, acting in their capacity as authorized representatives of the Secretary, to modify or vacate citations and orders.

Section 104(h) authorizes modifying or vacating citations and orders issued under Sections 104(a), 104(b), 104(d)(1), 104(d)(2), 104(e)(1), 104(e)(2), 104(f), and 104(g) for violations of the Act, mandatory health or safety standards, rules, orders, and regulations. Section 104(h) provides:

Section 107(d) authorizes inspectors or their supervisors, acting in their capacity as authorized representatives of the Secretary, to modify, vacate or terminate imminent danger orders issued under Section 107(a). Section 107(d) provides:
Section 107(b) orders, however, are not to be issued, modified, terminated or vacated by inspectors or district officials without strict coordination with the appropriate Administrator for Coal or Metal and Nonmetal. Section 107(b) provides unique enfor- cement procedures and requirements to contend with the unusual circumstances of dangerous conditions that cannot be effectively abated through the use of existing technology. Accordingly, inspectors and district officials shall not take any action under Section 107(b) before consulting the Office of the Administrator.

When vacating a citation or order, Form 7000-3a must be com- pleted, stating the reason for vacating the prior enforcement action. If possible, the authorized representative who issued the citation or order should be the person to issue the sub- sequent corrective action. Both the inspector and the supervisor must file, with the inspection report, notes which describe in detail the reasons and circumstances involved. Copies of the citation or order, along with the subsequent corrective action and notes, shall be sent to the appropriate district manager.

To assure proper coordination and documentation, the vacating of all imminent danger orders shall be approved in writing by the appropriate district manager, and a copy of the approval shall be attached to the inspection report.