June 1, 2013
Here are some basic guidelines to civil penalties under Section 110(C) of the Mine Act.
Recently, the Mine Safety and Health Administration (MSHA) has appeared fairly quiet on the enforcement front. However, what MSHA has lacked in numbers of enforcement actions issued, it has made up for in “Significant and Substantial” and “Unwarrantable Failure” findings. Generally, citations and orders alleging “aggravated conduct” are reviewed for Special Investigations. Special Investigations have an impact on an operation outside of MSHA’s “normal” enforcement scheme, and every mine operator should have a basic understanding of what is involved in such an investigation.
According to MSHA’s Special Investigations Handbook (Handbook), “[t]he goal of the Special Investigations Program is to enforce compliance with mandatory safety and health standards as a means to eliminate fatal accidents and injuries, reduce the frequency and severity of non-fatal accidents, minimize safety and health hazards, and promote improved safety and health conditions in the nation’s mines.”
One of the most commonly used tools in MSHA’s Special Investigations program is Section 110(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act). Section 110(c) provides for individual civil and criminal liability for officers, directors, and agents who knowingly authorize, order, or carry out certain violations of the Mine Act. Section 110(c) investigations are normally triggered by an accident, a miner complaint, or a review of citations and orders for possible “knowing” violations of the Mine Act. Civil penalties for a “knowing” violation under Section 110(c) can be up to a maximum of $70,000. In 2012, MSHA Metal/Non-metal division issued 60,680 citations and orders, opened 167 Section 110(c) investigations, and assessed 96 Section 110(c) cases against 126 distinct agents for a total of 189 civil penalties assessed.
Section 110(c) provides, “[w]henever a corporate operator violates a mandatory health or safety standard or knowingly violates or fails or refuses to comply with any order issued under this Act, or any order incorporated in a final decision under this Act, except an order incorporated in a decision issued under subsection (a) of this section or section 105(c), any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d).”
There are basically three elements the government must prove by the preponderance of the evidence to establish Section 110(c) liability: 1) that the mine is a corporate operator; 2) that the operator violated a mandatory health or safety standard or knowingly violated or failed or refused to comply with an order issued under the Mine Act; and 3) that a director, officer, or agent of such corporation knowingly authorized, ordered, or carried out such violation, failure, or refusal. Generally, an “agent” is “any person charged with responsibility for the operation of all or part of a coal or other mine or the supervision of the miners in a coal or other mine.” Determination of who is an “agent” for Section 110(c) purposes is open to interpretation and subject to a “function” analysis and not necessarily dependent upon an individual’s job title.
The term “knowingly” is similarly cryptic in that it is not defined in the Mine Act. The Federal Mine Safety and Health Review Commission (Commission) has interpreted “knowingly” to mean, “[i]f a person in a position to protect employee safety and health fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition, he has acted knowingly and in a manner contrary to the remedial nature of the statute.” Kenny Richardson, 3 FMSHRC 8, 16 (1983), aff’d, sub nom., Richardson v. Secretary, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).
Additionally, liability under Section 110(c) requires a showing of “aggravated conduct.” The Commission has identified seven factors used in the aggravated conduct analysis: the length of time the violation existed, the extent of the violative condition, whether the operator was on notice of the need for better compliance, the operator’s abatement efforts, whether the violation was obvious, whether the violation poses a high degree of danger, and the supervisor’s knowledge of the existence of the violation. All relevant factors should be considered in determining aggravated conduct. IO Coal Co., Inc., 31 FMSHRC 1346, 1351 (Rev. Comm. Dec. 2009).
In any MSHA inspection or investigation, operators should be aware of the potential for Section 110(c) liability. MSHA has indicated that, as part of its enhanced enforcement programs developed after the Upper Big Branch tragedy, the agency would be conducting additional Section 110 Mine Act investigations. Just a few months ago, MSHA enlisted the FBI to provide training for its special investigators in an effort to improve investigation techniques by focusing on securing an accident scene, photographing and sketching, collecting evidence, handling records, and conducting interviews.
MSHA states that a Section 110(c) investigation is a “fact finding exercise,” the sole purpose of which is to determine whether a civil penalty against an agent of the company is required to highlight the importance of safety.
According to MSHA’s Handbook, a determination whether to initiate a special investigation must be made within 30 calendar days of the issuance of the citation or order, and all Section 110 investigations must be initiated within 60 calendar days of the issuance of the underlying citation or order. The investigation is initiated when the special investigator makes personal contact with a potential witness. Once an investigation is initiated, an operator can expect to be contacted by a special investigator requesting agent interviews.
The process of interviewing hourly and salaried employees is a fundamental part of an MSHA Special Investigation. An operator should expect MSHA to interview everyone who may have knowledge of the underlying citation or order. However, it is important to understand that interviews with special investigators are voluntary and only the individual whose interview is requested can determine whether he/she consents for an interview. If an interview takes place, an individual MUST tell the truth. When being interviewed, an individual has the right to counsel, can discontinue the interview at any time for any reason, can refuse to be recorded, and can refuse to sign a written statement.
Statements are very important in any MSHA investigation, and even more so in a Section 110(c) investigation. MSHA’s Handbook states, “[t]he spoken word is potentially the greatest of all sources of investigative evidence.” A statement may be used to “refresh the memory of an interviewee during a trial or administrative hearing” and may be used to “impeach an interviewee on the stand when their previous statement is inconsistent with current testimony, or to furnish a basis for prosecution of an interviewee who testifies at the trial. If the statement constitutes a confession or admission, the relevant parts may be submitted as evidence during the trial.”
Thus, it is important to realize that statements given by an individual can be used against that individual or anyone else at the company, and admissions made during an interview can be used as the basis for a Section 110(c) violation. While some operators choose to “go it alone” in a special investigation, it would be wise to consult with an experienced attorney familiar with special investigations prior to participating in any MSHA investigation. Many special investigators focus on establishing a violation and miss out on fully developing the existence of mitigating circumstances that could avoid finding a “knowing” violation. In any MSHA investigation, developing a coherent defense strategy and counseling on an operator’s rights can pay dividends down the road by avoiding unnecessary litigation costs
Christopher G. Peterson is a member of Jackson Kelly PLLC’s Denver office, where he works with the firm’s Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or via email at firstname.lastname@example.org.