How to handle MSHA abatement demands

Several years ago, a frustrated mine operator called us to say he was angry about an unreasonable abatement demand that an inspector made and that he was simply going to ignore it. He felt this would be the best way to send the message that the underlying citation was wrong and that the abatement requested by the inspector was too costly and would provide no safety improvement to the condition cited.

While we certainly sympathized with his concerns, we warned him that ignoring the abatement requirement and deadline was probably not the best option on the table.

We pointed out that, under the Federal Mine Safety & Health Act, abatement of an alleged violation is mandatory and failure to carry out this mandatory obligation can produce substantial sanctions.

Specifically, Section 110(b) of the Mine Act, as currently amended, states that “any operator who fails to correct a violation for which a citation has been issued under section 104(a) within the period permitted for its correction may be assessed a civil penalty of not more than $7,500 for each day during which such failure or violation continues.”

That penalty begins to accumulate as soon as the inspector determines that the abatement obligation has not been met. Further, that accumulated penalty does not disappear, even if the underlying violation is ultimately vacated.

Withdrawal of all persons

Of sometimes even greater significance than the civil penalty, however, is the inspector’s authority under the Mine Act to order the withdrawal of all persons from the area affected by the violation until abatement is accomplished.

The Mine Act directs the inspector to “promptly issue an order requiring the operator… or his agent to immediately cause all persons… to be withdrawn from, and to be prohibited from entering” the affected area. The economic impact from this type of sanction often substantially outweighs the impact from a civil penalty.

The reality in abatement disputes is that negotiation is usually the most timely and effective means of resolving an abatement problem. Operators certainly have the opportunity and the right to challenge unreasonable abatement demands by the agency before the Federal Mine Safety & Health Review Commission, but solutions in those proceedings can often be time consuming and, in the long run, less than satisfactory.

Negotiation enables the operator and MSHA to discuss technical and feasibility data that sometimes enables the finding of common ground.

A critical component of any abatement discussion is operator good faith. If the operator is working with due diligence to identify a safe and effective solution, it is very difficult, and arguably inappropriate, for MSHA to cut off that process and assert a failure to abate.

At a minimum, such a circumstance should warrant the extension of the abatement time to enable further good faith efforts. The complexity of the situation should always be considered.

One example

For instance, in a recent enforcement situation involving a citation issued for an alleged structural defect in a production building, a variety of engineering options were potentially available based on the overall technical evaluation of the condition. Each option raised operational difficulties, which would require differing levels of complex modifications.

The MSHA inspector, citing a condition that had existed for several years, but which did not raise a reasonable likelihood of a serious injury, nonetheless, initially made it clear that the agency would only accept one particular option among the number of plausible options.

Both parties dug in their heels, and litigation seemed likely. However, the parties continued to talk while abatement extensions were granted to enable MSHA and the operator’s technical personnel to exchange information. Common ground was identified.

Mine operators certainly need to protect their rights and their operational flexibility when considering their options in citation abatement situations. But it is crucial that operators separate emotion from this decision-making process.

While legal challenges of the underlying allegation of violation may be ongoing, and the operator is frustrated that abatement is even an issue, a keen eye needs to be directed at the goals of the business moving forward.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.