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?
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 appropriate Regional Solicitor's Office or at the
Solicitor's Office, Mine Safety and Health Division in Arlington, Virginia. An operator may also
challenge the modification of a citation or order, as well as the reasonableness of the length of
time for abatement. 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 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 civil 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 an administrative law judge. Every civil penalty assessment comes
with a "green card" that lists each citation for which a civil penalty is being assessed. The mine
operator has the option to contest all or some of the citations contained in the assessment. The
operator is also requested to state the reasons for the contest. The "green card" is preaddressed to
the MSHA Civil Penalty Compliance Office and must be returned to MSHA within 30 days of
receiving the assessment.
3. What is the meaning of "significant and substantial"?
Under the case law decided by the Federal Mine Safety and Health Review Commission
(Commission), there are four elements that must be proven in order to establish a "significant and
substantial" 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.
On February 5, 1998, MSHA published a Program Information Bulletin in the Federal Register outlining the Secretary's position with regard to the proper interpretation of the phrase "significant and substantial." The Secretary's interpretation of the phrase "significant and substantial" was that a violation must be found to be "significant and substantial" so long as it is shown to present a hazard that is more
than remote or speculative. The public was given 60 days to submit comments on the revised interpretation.
On April 23, 1998, MSHA published a notice in the Federal Register
informing the public that it has suspended the Interpretative Bulletin and the applicable provisions of the Program Information Bulletin issued on February 5. MSHA will continue to accept written comments on the issue.
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 file an appeal of an administrative law judge's
decision?
Under Section 113(d)(2)(A)(I) of the Mine Act, 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; 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?
Under Section 106(a)(1) of the Mine Act, 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.
