Aggregates Manager

June 2013

Aggregates Manager Digital Magazine

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Page 44 of 228

Here are some basic guidelines to civil penalties under Section 110(C) of the Mine Act. by Christopher G. Peterson 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 cgpeterson@ AtlasRockLaw_AGRM0613.indd 43 R ecently, 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 ROCK LAW • 43 PENALTY PRIMER 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). 5/16/13 8:51 AM

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