Law
BY MICHAEL T. HEENAN
Due process for mine operators
Civil penalties for mine safety violations cited by the federal Mine Safety and Health Ad- ministration (MSHA) against
pit, quarry and plant operators have,
in recent years, become large enough
to put individual operators out of
business. In present economic circumstances, civil penalties can threaten any
mine business, large or small. Certainly
this is true for the largest segment
of the mining industry that supplies
materials for all types of construction,
since construction activity has fallen
precipitously.
Fairness in determination of violations and assessment of penalties is
essential. In the Federal Mine Safety
and Health Act, Congress established
procedures for review and evaluation
of the validity of citations and penalties proposed by MSHA. A system of
due process was created to ensure that
operators are entitled to independent
review of all enforcement actions and
all monetary sanctions.
MSHA enforcement
The process of issuing citations and
imposing civil penalties up to $220,000
against mine operators begins with
inspector belief. The law provides: “If,
upon inspection or investigation, [a
mine safety inspector] believes that an
operator … has violated this Act, or any
mandatory health or safety standard,
rule, order or regulation promulgated
pursuant to this Act, he shall … issue a
citation to the operator.”
Inspector beliefs not only extend
to the citation of violation, but also to
all sorts of factors that MSHA uses to
propose a civil penalty, factors related
to what extent the inspector believes
the operator was negligent, how many
people might have been hurt and how
seriously if something happened as
a result of the alleged violation. The
inspector is required to be very specific
in checking off boxes on the inspection
form. MSHA uses these inspector findings to calculate a proposed penalty.
The law does not require MSHA
to delve deeply into the validity of
the citation or inspector conclusions.
Congress specifically exempted MSHA
from that responsibility.
The Mine Act states: “In proposing
civil penalties under this Act, the Secretary [of Labor (MSHA)] may rely upon
a summary review of the information
available … and shall not be required
to make findings of fact concerning”
the criteria Congress established for
assessment of civil penalties. In practice, inspector findings are typically
accepted at face value, are assigned
point values, and penalty proposals are
calculated by computer. The problem
is that, typically, inspectors are focused
on determining fault. They rarely have
the time or interest to investigate exculpatory or mitigating factors.
Review Commission
The reason things may proceed summarily with MSHA is that it is not
MSHA, but rather an independent
agency – the Federal Mine Safety and
Health Review Commission, that has
the authority to assess civil penalties.
The Federal Mine Safety Act states:
“The Commission shall have authority to assess all civil monetary penalties
provided in this Act.” In other words,
MSHA can summarily propose penalties, but only the independent commission has authority to assess penalties. (If
an operator fails to contest a proposed
penalty, it becomes a final order of the
Whether through trial or pre-trial
negotiations, the fact that there
are procedures for citations and
penalties to be adjusted means
there is opportunity for fairness.
Legal tip
commission essentially by default without actual commission review.)
There was a time when MSHA allowed operators to have a voice in an
optional conference before citations
were forwarded for assessment, but the
agency has largely discontinued this.
With drastic increases in penalties
from roughly $25,000,000 in 2005 to
almost $200,000,000 in 2009, MSHA
became overwhelmed with requests
from operators seeking to present their
side of the story. Today, MSHA is telling operators they will have to wait
for MSHA to propose penalties to the
commission and then contest them if
they want to discuss the citations.
Unfortunately, once penalties
are proposed by MSHA, the inspector findings take on an aura of being
completely validated by the agency,
although this is hardly the case. Practically speaking, short of enduring the
time and expense of going to trial, the
burden is on the operator to establish
affirmatively in pre-hearing procedures
before the commission why citations
and penalties may not be justified. The
interesting thing is, however, that given
this opportunity after they have noted
their contest, operators have been successful in presenting information to
alter MSHA’s view.
Statistics recently released by MSHA
to the House Education and Labor
