Compliance & Enforcement FAQs

When a civil penalty is assessed, the mine operator, contractor, agent or miner (Entity) has 30 days from the day of receipt of the proposed assessment in which to file a penalty contest and request a hearing before a Federal Mine Safety and Health Review Commission administrative law judge.  Every civil penalty assessment lists each citation and/or order for which a penalty is being assessed.  The Entity has the option to contest all or some of the civil penalties by placing a checkmark beside each citation and/or order listed on the proposed assessment that it wants to contest.  The Entity is also requested to state the reasons for the contest once it has been timely received and processed.  A copy of the contested assessment must be returned to MSHA's Civil Penalty Compliance Division in Arlington, Virginia within 30 days of the Entity's receipt of the proposed assessment.  An Entity who wants to contest a civil penalty assessment must provide such notification regardless of whether it has previously contested the underlying citation(s) and/or order(s).  If, within 30 days from receipt of the Secretary’s proposed penalty assessment, an Entity fails to notify the Secretary that it contests the proposed penalty, the Secretary’s proposed penalty assessment will be deemed a final order of the Commission and is not subject to review by any court or agency.

Under the case law decided by the Federal Mine Safety and Health Review Commission, four elements must be proven to establish a "significant and substantial" (S & S) violation:

1. The underlying violation of a mandatory standard;
2. The existence of a discrete safety hazard contributed to by the violation;
3. A reasonable likelihood that the hazard contributed to will result in an injury; and
4. A reasonable likelihood that the injury in question will be of a reasonably serious nature.

Secretary of Labor v. Mathies Coal Company, 6 FMSHRC 1 (January 1984). 

The Federal Mine Safety and Health Review Commission has held that "unwarrantable failure" on the part of a mine operator in relation to a violation of the Mine Act constitutes more than just ordinary negligence. Secretary of Labor v. Emery Mining Corporation, 9 FMSHRC 1997 (December 1987). "Unwarrantable failure" may be characterized by such conduct as "reckless disregard", "intentional misconduct", "indifference", or a "serious lack of reasonable care".

A mine operator, contractor, agent or miner (Entity) has 30 days from the date of the issuance of a judge's decision to file a petition for discretionary review with the Federal Mine Safety and Health Review Commission. The petition must be filed upon one or more of the following grounds:

1. A finding or conclusion of material fact is not supported by substantial evidence;
2. A necessary legal conclusion is erroneous;
3. The decision is contrary to law or to the duly promulgated rules or decisions of the Commission; or
4. A prejudicial error of procedure was committed.

If a judge's decision is not appealed to the Commission within 30 days after it is issued, or the Commission does not order an appeal of its own volition, the judge's decision will become a final order not reviewable by any court or agency. A petition for discretionary review that is not granted within 40 days after the issuance of the judge's decision is deemed denied.