November 14, 2011
Know Your Mine’s History of MSHA Violations
Failing to contest MSHA citations when valid defenses exist can unknowingly result in significant increases in penalty amounts.
Mine operators take an individualized approach to handling MSHA enforcement actions, depending on their business needs and philosophy. Some operators contest, litigate, and take to trial any citation that they believe has been inappropriately issued, regardless of the monetary amount of the associated fine or the amount of legal fees associated with the contest. On the other end of the spectrum are operators who choose, despite the existence of meritorious defenses, to forego challenging citations in all but the rarest of circumstances. Many operators in this latter category believe that their approach fosters a better relationship with MSHA which, in theory, leads to MSHA inspectors being more flexible in situations where the inspector has considerable discretion over whether or how to issue a citation. Although this approach may appear advantageous in the short term, operators who adopt this strategy must be cognizant of the unintended (and likely unconsidered) long-term consequences of consistently accepting citations when valid defenses are present.
When a citation is issued, there are several factors that are considered to determine the monetary penalty associated with the citation: (1) size of the mine operator; (2) history of previous violations; (3) the operator’s negligence associated with the alleged violation; (4) the gravity associated with the alleged violation; (4) the operator’s good faith in abating the citation; and (5) the effect of the penalty on the operator’s ability to continue in business. For each factor, a point value is assigned which, in turn, determines the amount of the fine. As the point value increases, the amount of the fine increases correspondingly.
What many operators who rarely challenge citations (perhaps in hopes of staying “friendly” with MSHA) fail to consider is the cumulative effect of this practice on the “history of previous violations” factor above. This component of the penalty calculation is divided into two elements: (1) total number of violations; and (2) repeat violations of the same standard. Although the practice of routinely accepting citations implicates both of these factors, the “repeat violations” factor is, in many ways, the factor that an operator can control the most by closely monitoring which citations are contested and which citations are accepted.
The method for calculating repeat penalty points is relatively straightforward. Repeat points can only be assigned if the operator has received 10 violations in the preceding 15-month period and if there has been a minimum of six violations of the same standard during that same time frame. For example, violations of 30 C.F.R. § 56.20003(a) would not be included in the repeat history of violations for 30 C.F.R. § 56.20003(b). Additionally, repeat violations of the same standard include only violations that have been paid or finally adjudicated. An operator can receive a maximum of 20 repeat penalty points that are included in the overall calculation of points used to determine the given monetary penalty.
One of the most common situations in which repeat points rear their proverbial ugly head are citations involving commonly-cited standards such as 30 C.F.R. § 56.20003, the housekeeping standard. This standard generally requires workplaces, passageways, storerooms, and floors to be maintained clean and orderly and free from nails, splinters, holes, loose boards, and the like. As you can imagine, this standard can be utilized by an MSHA inspector in a litany of circumstances and leaves the inspector with wide discretion to decide whether an area is “clean and orderly.” Unsurprisingly, this standard is one the most frequently cited standards every year.
Because of this, an operator could easily be subject to nauseating increases in penalty amounts, even though the alleged violations were found by the inspector to be non-serious conditions that were unlikely to cause harm to a miner. For example, if a mine met the criteria for the maximum number of penalty points for the repeat violations factor (an additional 20 penalty points), the fine associated with a non-serious citation could increase from $512 (79 penalty points) to $2,536 (99 penalty points)! The lesson to be learned here is that a conscientious operator must constantly take inventory of its history of violations, determine whether it is at risk for an increase in repeat penalty points, determine whether any valid defenses to the alleged violation exists, and then plan its litigation strategy accordingly. Otherwise, relatively insignificant citations could eventually lead to serious financial consequences.
K. Brad Oakley is an associate in Jackson Kelly PLLC’s Lexington, Ky., office where he represents the mining and construction industry in safety and health enforcement actions. He can be reached at 859-255-9500 or firstname.lastname@example.org.