Mine Operator Strategies for

Preventing/Mitigating MSHA
Elevated Enforcement
Mine Operator Strategies for
Preventing/Mitigating MSHA
Elevated Enforcement
Max L. Corley, III
Charleston, WV
max.corley@dinsmore.com
The Right to Accompany MSHA Inspectors

Section 103(f) of the Mine Act states:

...a representative of the operator and a representative

authorized by his miners shall be given an opportunity

to accompany the Secretary or his authorized

representative during the physical inspection of any
coal or other mine ...

for the purpose of aiding such inspection and to

participate in pre- or post-inspection conferences held
at the mine.
Proper Handling of the Walk Around Inspection

First Rule of the Walk Around: it is all about the facts.

Second Rule of the Walk Around: handle the MSHA

inspector with care.

Third Rule of the Walk Around: remember the Rule of

the Three P’s. The inspector has the:
Pen
Paper
Power
 ITS ALL ABOUT THE FACTS!!!

F -- Follow the Inspector

A -- Ask Clarifying Questions
C -- Control Comments
T -- Take Contemporaneous Notes
S -- Secure Pertinent Documents /
Evidence
(Avoid Spoliation / Adverse Inferences)
 MSHA’s Graduated Enforcement Scheme
103(k)

Control
104(e) Order
Section 8 Pattern of
Miner Act S&S
Violations
Flagrant
107(a) Violation

104(d)(2) Imminent
Danger Order

104(d)(1) Withdrawal
Order

104(d)(1) Order

104(b) Citation

Order
104(a)

104(a) S&S

Non S&S
Understanding Gravity
and Negligence and
Their Impact on Civil
Penalties.
GRAVITY
 What is Gravity?

It is the inspector’s evaluation of how serious a condition

is.

The inspector gauges the seriousness by looking at:

The possibility that an injury or illness might occur (10A)

How severe an injury might be a situation occurs (10B)
Whether the violation is S&S (10C)
The number of persons who might be affected (10D)
 10(A) Possibility of Injury
or Illness

No Likelihood
Unlikely
Reasonably Likely
Highly Likely
Occurred (requires an accident or injury)
 Gravity - Likelihood

Old Rule New Rule

Likelihood of occurrence Penalty Likelihood of occurrence Penalty

Points Points

No likelihood 0 No likelihood 0

Unlikely 2 Unlikely 10

Reasonably likely 5 Reasonably likely 30

Highly likely 7 Highly likely 40

Occurred 10 Occurred 50
 10 (B) Severity of Illness or Injury

No Lost Workdays
Lost Workdays or Restricted Duty
Permanently Disabling
Fatal

One ALJ has held that injuries actually sustained in an

accident determine severity.
Definition of Lost Workdays or Restricted Duty

Any injury or illness which would cause the

injured or ill person to lose one full day of work
or more after the day of the injury or illness, or
which would cause one day or more of
restricted duty.
30 CFR 100.3(e) Table XII
 Definition of Permanently Disabling

Any injury or illness which would be

likely to result in the total or permanent
loss of the use of any member or
function of the body.
30 CFR 100.3(e) Table XII
 Definition of Fatal

Any work-related injury or illness resulting in

death, or which has a reasonable potential to
cause death.
30 CFR 100.3(e) Table XII

Old Rule
Severity of injury or illness if the
event occurred or were to occur
No lost work days
(All occupational injuries and
illnesses as defined in 30 CFR Part 50
except those listed below.)
Lost work days or restricted duty
(Any injury or illness which would
cause the injured or ill person to lose
one full day of work or more after the
day of the injury or illness, or which
would cause one full day or more of
restricted duty.)
Permanently disabling
(Any injury or illness which would
be likely to result in the total or
partial loss of the use of any member
or function of the body.)
Fatal
(Any work-related injury or illness
resulting in death, or which has a
reasonable potential to cause death.)
Severity Points
New Rule
Penalty Severity of injury or illness if the Penalty
Points event has occurred or were to occur Points
0 No lost work days 0
(All occupational injuries and
illnesses as defined in 30 CFR Part
50 except those listed below.)
3 Lost work days or restricted duty 5
(Any injury or illness which would
cause the injured or ill person to lose
one full day of work or more after
the day of the injury or illness, or
which would cause one full day or
more of restricted duty.)
7 Permanently disabling 10
(Any injury or illness which would
be likely to result in the total or
partial loss of the use of any member
or function of the body.)
10 Fatal 20
(Any work-related injury or illness
resulting in death, or which has a
reasonable potential to cause death.)
 10(D) Number of Persons Affected
This means the number of persons potentially affected if
the event occurred or were to occur.
Points are assigned to each person potentially affected:

Number of Persons Old Rule New Rule

0 0 0
1 1 1
2 2 2
3 4 4
4 6 6
5 6 8
6 8 10
7 8 12
8 8 14
9 8 16
10 OR MORE 10 18
 (10)(C) Significant & Substantial

A violation is S&S if based on the

particular facts surrounding the violation
there exists a reasonable likelihood that
the hazard contributed to (by the alleged
violation) will result in injury or illness of
a reasonably serious nature.
 S&S Analysis

A discrete safety hazard –

a measure of danger to safety
and health contributed to by
2nd Base the violation
*Most important element
[Cause and effect]
A reasonable likelihood that the
hazard contributed to will
result in an injury
(How does this hazard
affect the likelihood 3rd Base 1st Base
of injury?) Violation of a
mandatory health
and safety
standard

Reasonable likelihood that Home

the injury will be of a
reasonably serious nature
 S&S Test Element

MSHA must prove each of the following elements:

First, MSHA must cite a violation of a mandatory health
and safety standard.
Most, but not all, citations MSHA issues involve
mandatory health and safety standards.
Violations of 30 CFR Parts 46, 47, 48, 49, 56, 57, 58,
62, 70, 71, 72, 75, 77, and 90 are violations of
standards that can be designated as S&S.
Safeguards can be S&S.
 Breaking Down the S&S Test

Second, MSHA must identify a discrete

safety hazard. A discrete safety hazard
is defined as:

a measure of danger to safety and

health contributed to by the violation.
 Breaking Down the S&S Test

Third, MSHA must prove that there is a reasonable

likelihood that the hazard contributed to will result in an
injury.
The Commission has held: “We have … explained that the third
element of the Mathies formulation ‘requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury.’” U.S. Steel Mining Co.,
6 FMSHRC 1834 (Docket No. PENN 83-39, slip op. at 3) (August
1984).
It is the contribution of the violative condition to the cause
and effect of a hazard that must be significant and
substantial.
This is the most important element in determining if a
citation meets the S&S standard.
 The Importance of the
“Reasonably Likely” Language
The S&S standard is based on what is “reasonably likely” to
occur and not what “could” occur.

The Commission has consistently recognized this distinction

in evaluating the validity of S&S citations.

In Tilden Mining Co., Docket Nos. LAKE 2001-94-RM etc., 24

FMSHRC 53 (Jan. 3, 2002), the ALJ dismissed 29 citations
alleging violations of a guarding standard because contact
with the tail, head, take-up, and wrap-over pulleys was found
to be unlikely.

MSHA argued that the cited moving parts were S&S because a
worker "could" have made contact with them. This position was
rejected by the ALJ. The ALJ emphasized that while injury was
possible it was not reasonably possible and therefore the
citations were not S&S.
 Breaking Down the S&S Test

Fourth, MSHA must show that there is a

reasonable likelihood that the injury will be of a
reasonably serious nature.

This element requires the inspector to

make an independent determination of the
injury that could occur.
Mathies Coal Company, 6 FMSHRC 1 (1984)
 Conflicting Interpretations of S&S

Old Test:
“Potential” to cause injury insufficient
Violation condition is “reasonably likely” to result
in injury
Still used in practice – varies among judges

New Test:
Need not prove violation will cause injury
Hazard contributed is “reasonably likely” to
result in injury
Waters down causation element
Understanding
Negligence
 What is Negligence?

The Mine Act requires operators to be on the alert for

hazards that can affect employee safety;

And to take steps to prevent or correct these hazards.

The failure to do so is called negligence.

 What is Negligence? (cont.)

In each citation or order issued, the inspector must

evaluate the degree of negligence from among five
different options:

None
Low
Moderate
High
Reckless Disregard
 Degrees of Negligence

No Negligence: The operator exercised diligence and

could not have known of the violative condition.

Low Negligence: The operator knew or should have

known of the violative condition or practice but there are
considerable mitigating circumstances.
 Degrees of Negligence

• Moderate Negligence: The operator knew or should

have known of the violative condition or practice, but
there were mitigating circumstances.

• High Negligence: The operator knew or should have

known of the violative condition or practice, and there
are no mitigating circumstances.

• Reckless Disregard:The operator displayed conduct

which exhibits the absence of the slightest degree of
care.
 The Importance of
Mitigating Circumstances

The concept of mitigating circumstances is crucial in

determining the degree of negligence and in
determining the proper gravity of a citation.

Mitigating circumstances may include, but are not

limited to, efforts you have made to prevent or correct
hazardous conditions.

Mitigating circumstances can be found for any citation

MSHA issues.
 Negligence Points
Old Penalty Rule New Penalty Rule

Categories Penalty Categories Penalty

Points Points
No negligence 0 No negligence 0
(The operator exercised diligence and could not (The operator exercised diligence and could not
have known of the violative condition or practice.) have known of the violative condition or practice.)

Low negligence 10 Low negligence 10

(The operator knew or should have known of (The operator knew or should have known of the
the violative condition or practice, but there are violative condition or practice, but there are
considerable mitigating circumstances.) considerable mitigating circumstances.)

Moderate negligence 15 Moderate negligence 20

(The operator knew or should have known of (The operator knew or should have known of the
the violative condition or practice, but there are violative condition or practice, but there are
mitigating circumstances.) mitigating circumstances.)

High negligence 20 High negligence 35

(The operator knew or should have known of (The operator knew or should have known of the
the violative condition or practice, and there are violative condition or practice, and there are no
no mitigating circumstances.) mitigating circumstances.)

Reckless disregard 25 Reckless disregard 50

(The operator displayed conduct which exhibits (The operator displayed conduct which exhibits
the absence of the slightest degree of care.) the absence of the slightest degree of care.)
 104(b) – Failure to Abate Order

Follow-up inspection of a coal or other mine

A violation not totally abated within the time

originally fixed or as subsequently extended, and
that the period of time for the abatement should not
be further extended

Issue an order to immediately cause all persons to

be withdrawn from, and to be prohibited from
entering, such area until such violation has been
abated.
 104(B) – Failure to Abate Order

(c) The following persons shall not be required to be

withdrawn from, or prohibited from entering:

Any person whose presence in such area is necessary to

eliminate the condition described in the order;

Any public official whose official duties require him to enter

such area;

Any representative of the miners qualified to make such

mine examinations or who is accompanied by such a
person and whose presence in such area is necessary for
the investigation of the conditions described in the order;
and

Any consultant to any of the foregoing.

 104(b) – Failure to Abate Order

104(b) orders are typically not assessed.

However, failures to abate may be assessed $7,500 for

each day during which such violation continues.

The abatement period must be “reasonable”

Must Contest within 30 days of Issuance

 104(b) – Failure to Abate Order

Check the abatement period in citation for accuracy

Clarify differences between verbal and written

abatement period

Follow-up on action taken before deadline

Accountability: mine management should confirm action

taken
Section 104(d) Unwarrantable Failure Citations
and Orders

Unwarrantable failure citations and orders must be

based on “aggravated conduct.”

“Aggravated Conduct” is defined as reckless disregard,

intentional misconduct, indifference, or a serious lack of
reasonable care.

It is not “negligent conduct” which is defined as

inadvertent, thoughtless, or inattentive.
The Commission’s “Mullins Factors” Test for
Unwarrantable Failure

Commission examines the following factors to

determine if the mine operator exhibited aggravated
conduct (i.e. reckless disregard, intentional misconduct,
indifference, or a serious lack of reasonable care):
 The Mullins Factors

Extent of the violative condition

Length of time the condition existed
Efforts made to abate the condition prior to
issuance of the citation (Post-citation efforts are
irrelevant – Enlow Fork Mining Co., PENN 94-
259; PENN 94-400 (Jan. 1997))
Whether the violation was obvious
Whether the operator placed on notice that
greater efforts were necessary for compliance
The danger posed by the violative condition
 The Mullins Factors

MSHA does not need to produce evidence on

every one of the Mullins factors.

Knowledge of the condition alone is not enough

to support a finding of aggravated conduct.

The use of a knew or should have known test

by itself would make unwarrantable failure
indistinguishable from ordinary negligence.
Virginia Crews Coal Company, 15 FMSHRC
2103 (October, 1993).
 The Mullins Factors

All relevant facts and circumstances of each

case must be examined to determine if the
conduct is aggravated or whether mitigating
circumstances exist. Consolidation Coal Company,
22 FMSHRC 340 (March 2000).

When an operator believes in good faith that the

cited conduct was the safest method of
compliance, even if he is in error, such conduct
is not aggravated conduct exceeding ordinary
negligence. Utah Power & Lighting Co. v. MSHA, 12
FMSHRC 965 (May 1990).
Ramifications of Unwarrantable Failure
Citations and Orders:

104(d) Chain
Mandatory Minimum Penalties / Special
Assessments
Special Investigations under Section 110 of
the Mine Act
Pattern of Violation Consideration
Flagrant Violations
 The Unwarrantable Failure Chain

The issuance of unwarrantable failure citations

and orders can result in your operation being
placed on a “104(d) Chain.”
 The 104(d) Chain

Step One: The Predicate Citation

Under section 104(d)(1), if an inspector finds a

violation that is both significant and substantial
and an unwarrantable failure to comply, a
104(d)(1) citation is issued. This is the “Predicate
Citation.”*

*Note that this predicate (d) citation must be a violation of

a health and safety standard, and cannot be an imminent
danger.
 The 104(d) Chain

Step Two: The Predicate Order

If, during the same inspection or any
subsequent inspection within 90 days after
issuance of the predicate citation, an inspector
finds another unwarrantable failure violation, he
issues a withdrawal order under Section
104(d)(1). This is the “Predicate Order.”

Note that while this alleged violation must be caused by

aggravated conduct, it does not have to be S&S.
 The 104(d) Chain

Step Three: Upon any subsequent inspection,

if an inspector finds a violation that is an
unwarrantable failure, he then issues a
withdrawal order under Section 104(d)(2).
(Again, this alleged violation does not need to
be S&S.)

MSHA continues to issue 104(d)(2) withdrawal

orders for all unwarrantable failures until a clean
inspection of the mine is completed without an
unwarrantable failure.
 FLAGRANT
ASSESSMENTS
 History

Mine Improvement and New Emergency Response

Act of 2006 (“MINER” Act)

Increased the maximum penalty for violations

deemed to be “flagrant” from $70,000 to $220,000
(maximum recently increased to $242,000)

MSHA issues flagrant assessments despite any clear

interpretation of the vague flagrant violation standard

Flagrant standard delineated in §110(b)

 History

§110(b) of the MINER Act states:

Violations under this section that are deemed to be

flagrant may be assessed a civil penalty of not more
of $220,000. For purposes of the preceding
sentence, the term ‘flagrant’ with respect to a violation
means a reckless or repeated failure to make
reasonable efforts to eliminate a known violation
of a mandatory health or safety standard that
substantially and proximately caused, or
reasonable could have been expected to cause
death, or serious bodily injury.
 History

Two-track approach for establishing a flagrant

violation
First Track
Proving the operator recklessly failed to eliminate a
known hazard
Second Track
Proving the operator repeatedly failed to eliminate a
known violation
Standard fails to define many of the terms used and
creates an excessively broad standard
 History

MSHA issued a final rule on flagrant violations in

2006 30 C.F.R. §105(e)

Rule codified the language of §110 (b) of the MINER

Act

Did not define the terms:

Flagrant
Reckless Failure
Repeated Failure
Known Violation
Substantially and proximately caused
 History

MSHA attempted clarify the flagrant violation standard

through specific criteria in PIL 106-III-04 (October 26,
2006)

This PIL was reissued in PIL 108-III-02 (May 29, 2008)

which expired on March 31, 2010

The Secretary of Labor reiterated PIL criteria in April,

2011 news release
 PIL Criteria

The PIL criteria provides that an operator

“recklessly” failed to make reasonable efforts to
eliminate a known violation when:

A citation / order is evaluated as significant and substantial;

The injury is evaluated as at least permanently disabling

Designated as an unwarrantable failure to comply with a

mandatory safety or health standard under 104(d) of the Mine
Act; and

The negligence designated as reckless disregard of a mandatory

standard
 PIL Criteria

The PIL criteria provides that an operator has

‘repeatedly failed’ to make reasonable efforts to
eliminate a known violation when:
A citation / order is evaluated as significant and substantial;

Injury evaluated as at least permanently disabling;

Designated as an unwarrantable failure to comply with a

mandatory safety or health standard under 104(d) of the Mine
Act; and

At least two prior “unwarrantable failure” violations of the same

mandatory health or safety standard have been cited within the
past 15 months
 PIL Criteria

PIL No. 108-III-2 “proximate cause” requirement

The condition cited also must be evaluated to

determine if it proximately caused or “could have
been expected to cause death or serious bodily
injury”

PIL defines “proximate cause” as “one which directly

produces the injury or death and without which the
injury or death would not have occurred”
 PIL Criteria

Places considerable power and discretion in federal

mine inspectors

Enforcement scheme fraught with the potential for

abuse, misuse, misinterpretation and misapplication by
MSHA

Little guidance from the Commission or its judges

 Cases

Conshor Mining, LLC, KENT 2008-652 and KENT 2008-782

(November 28, 2011)

Wolf Run Mining, Co., WEVA 2008-1265 (January 20, 2012) –

ALJ rejected MSHA’s reliance on history of past violations;
must show repeated failure to eliminate condition at issue

ALJ decisions limited application of “repeated failure” test

Commission reversed ALJ in Wolf Run Mining Co., 35

FMSHRC 536 (March 2013) – a repeated flagrant designation
can be based on past violations of the same standard (no
other guidance provided)
 Cases

Recent ALJ decision reduced flagrant assessments

significantly - Rejected reckless disregard designations

ALJ stated that the failure to uphold an S&S or

unwarrantable failure designation:

“[S]trongly suggests the Secretary has not satisfied his

burden of proving his flagrant allegations . . . [I]ndeed it
is difficult to envision sustaining a reckless or repeated
flagrant allegation when the underlying violation is
neither S&S nor unwarrantable.”
 Section 107(a) Imminent Danger

If, upon any inspection or investigation of a coal or other

mine, ... an inspector finds that an imminent danger
exists:

He shall determine the extent of the area affected

and issue an order requiring all persons ... be
withdrawn and prohibited from entering the area until
the inspector determines the conditions or practices
which caused such imminent danger no longer exist.
 Section 107(a) Imminent Danger

Non-Assessable; but

The issuance of an imminent danger order shall not

preclude the issuance of a citation under section 104
or the proposing of a penalty under section 110.

Must contest within 30 days of issuance because it

will not be assessed.

Evaluated as part of the POV review process.

 Section 103(k) “Control Order”

In the event of any accident occurring in a coal or other mine

An authorized representative of the Secretary, when

present

May issue “such orders as he deems appropriate” to

insure the safety of any person in the coal or other mine

The operator ... shall obtain the approval of the authorized

representative, in consultation with appropriate State
representatives, when feasible, of any plan to recover any
person in the mine.
Or to recover the coal or other mine or return affected
areas of the mine to normal.
 Section 103(k) “Control Order”

“Such orders as he deems appropriate” has not been

litigated

Is there a limit? Broad discretion to ensure safety /

Deference given to the inspector

Commission has a liberal and expansive view of what

constitutes an “accident”

Eighth Circuit utilized an “arbitrary and capricious”

standard
 Section 103(k) “Control Order”

MSHA using “control orders” to mandate plan changes

Shut downs - acquiescence required to lift order

Broad discretion afforded to MSHA

Incredible power – due process?

Sixth Circuit affirmed MSHA’s issuance of “control

order” mandating plan changes
Questions?
Max L. Corley, III
Partner
DINSMORE & SHOHL LLP
Charleston ^ 304.357.9945
max.corley@dinsmore.com