U.S. Department of Labor
Office of the Solicitor
Division of Mine Safety and Health
Frequently Asked Questions
1) How do I contest a citation or order issued by the Mine Safety and Health Administration (MSHA) for a mandatory health or safety violation before a penalty is assessed?
When an MSHA inspector issues a citation or order under section 104 of the Federal Mine Safety and Health Act of 1977 (Mine Act), a mine operator has 30 days in which to file a notice of contest with the Secretary of Labor at the Solicitor's Office (Mine Safety and Health Division in Arlington, Virginia or the appropriate Regional Solicitor's Office) and to file a copy of such notice of contest with the Federal Mine Safety and Health Review Commission (Commission). An operator may also challenge the modification of a citation or order, as well as the reasonableness of the length of time for abatement. A notice of contest must contain: (1) a short and plain statement of the operator's position regarding each issue of law and fact and the relief requested and (2) a copy of the contested citation or order.
An operator's failure to file a notice of contest of a citation or order issued under section 104 of the Mine Act will not preclude the operator from challenging, in a civil penalty proceeding, the fact of violation or any special findings contained in a citation or order, including the assertion in the citation or order that the violation was of a significant and substantial nature or was caused by the operator's unwarrantable failure to comply with the standard.
2) How do I contest a penalty assessment?
When a civil penalty is assessed, a mine operator has 30 days in which to file a contest and request a hearing before a Commission administrative law judge. Every civil penalty assessment lists each citation and/or order for which a penalty is being assessed. An operator has the option to contest all or some of the penalties by placing a check-mark beside each citation and/or order listed on the assessment that it wants to contest. The operator is also requested to state the reasons for the contest. A copy of the contested assessment must be returned to MSHA's Civil Penalty Compliance Office in Arlington, Virginia within 30 days of the operator's receipt.
An operator 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 penalty assessment, an operator fails to notify the Secretary that it contests the penalty, the Secretary’s penalty assessment will be deemed a final order of the Commission and not subject to review by any court or agency.
3) What is the meaning of “significant and substantial”?
Under the case law decided by the Commission, four elements must be proven to establish a "significant and substantial" (S&S) violation:
- The underlying violation of a mandatory standard;
- The existence of a discrete safety hazard contributed to by the violation;
- A reasonable likelihood that the hazard contributed to will result in an injury; and
- 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).
4) What is the meaning of “unwarrantable failure”?
The 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".
5) How much time do I have to appeal an administrative law judge’s decision?
A mine operator has 30 days after the issuance of a judge's decision to file a petition for discretionary review with the Commission. The petition must be filed upon one or more of the following grounds:
- A finding or conclusion of material fact is not supported by substantial evidence;
- A necessary legal conclusion is erroneous;
- The decision is contrary to law or to the duly promulgated rules or decisions of the Commission;
- A substantial question of law, policy, or discretion is involved; or
- 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.
6) How do I appeal a decision of the Commission?
Any person adversely affected or aggrieved by an order of the Commission issued under the Mine Act may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or in the United States Court of Appeals for the District of Columbia Circuit by filing, in such court within 30 days following the issuance of such order, a written petition praying that the order be modified or set aside. A Commission decision that is not appealed within the 30-day time period will become a final order not subject to review by any court or agency.