Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/140126
ROCK LAW • 45 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 AtlasRockLaw_AGRM0613.indd 45 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 AM 5/16/13 8:51 AM