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Mine Safety and Health Enforcement
The U.S. Labor Department'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, (The Act) MSHA inspectors must issue a citation or order for each violation of a health or safety standard they encounter. Each issuance results in the assessment of a civil penalty. These penalties may range up to $220,000 per violation. MSHA's Office of Assessments proposes the penalties. Currently, a violation not reasonably likely to cause reasonably serious injury that is corrected promptly is assessed a $60 penalty. Violations that are likely to cause reasonably serious injury (so-called "significant and substantial" violations) are assessed according to a formula that considers six factors: 1) history of previous violations; 2) size of the operator's business; 3) any negligence by the operator; 4) gravity of the violation; 5) the operator's good faith in trying to correct the violation promptly; and 6) effect of the penalty on the operator's ability to stay in business. These factors are determined from the inspector's findings, MSHA records, and information supplied by the operator. In some cases where there are fatalities, serious injuries, or high levels of negligence, the regular penalty formula does not yield an appropriate penalty. In these cases, MSHA will make an enhanced civil penalty proposal known as a special assessment based on the same six factors. The MINER Act of 2006 amended the Mine Act to establish minimum penalties for unwarrantable failure violations and untimely notification of certain serious accidents. The MINER Act also established a maximum penalty of $220,000 for flagrant violations. The maximum penalty for all other violations remains at $60,000. Civil penalties are assessed against the mine operator. However, agents of corporate operators may individually be fined for violations they knowingly caused or permitted. Individual miners can be fined for violating smoking prohibitions. When MSHA proposes a penalty, a mine operator, agent of a corporate mine operator or a miner alleged to have violated smoking prohibitions may contest the civil penalty proposal, and after hearing, a Judge of the Federal Mine Safety and Health Review Commission will determine the civil penalty to be paid. The Judge may find the penalty to be higher or lower than that assessed by MSHA "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 under the unique circumstance contributed to by the violations. In writing each citation, the MSHA inspector determines whether the violation is S & S or not. Orders Of Withdrawal In several 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) imminent danger to the miners; 2) failure to correct a violation within the time allowed; and 3) to protect miners and secure an area after an accident. Unwarrantable Failures 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 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 notify the operator, who is then given an opportunity to improve compliance. Thereafter, if a mine is notified that it has a pattern of violations, 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. Discrimination Protection and Interference Prevention The law prohibits discrimination against miners, their representatives, or job applicants for exercising their safety and health rights and prohibits persons from interfering with the exercise of those rights. MSHA investigates all complaints of discrimination and interference. If evidence of discrimination or interference is found, the Labor Department can take the miner's case before Federal Mine Safety and Health Review Commission and seek appropriate relief including back pay, civil penalties and other remedies. Miners who have been fired because they exercised their safety and health rights may be temporarily reinstated to their former positions while a discrimination complaint is being adjudicated. Criminal Penalties The Mine Act provides for criminal sanctions against mine operators who willfully violate safety and health standards. MSHA initially investigates possible willful violations; if evidence of such a violation is found, the agency turns its findings over to the Justice Department for prosecution. Appeals Before any citation or order is assessed, the operator or miners' representative can confer with an MSHA supervisor or conference officer about any disagreement with the inspector's findings. If the disagreement can't be resolved on this level, the operator is entitled to a hearing before an administrative law judge with the independent Federal Mine Safety and Health Review Commission. An operator or miners' representative who disagrees with any other enforcement action by MSHA also is entitled to a hearing. The administrative law judge's decision can be appealed to the Commission, and thereafter, to the U.S. Court of Appeals. |
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