Every operator dealing with citations knows the first consideration typically needs to be what is going to be acceptable for abatement.
Of course, “acceptable” goes both ways.
The operator will want the abatement method to be safe and feasible. The Mine Safety & Health Administration (MSHA) inspector will expect the abatement to bring the condition into compliance with the standard that was cited.
Often, these things align. Occasionally, however, they do not – and that’s where issues arise.
What the law requires
The Federal Mine Safety & Health Act of 1977 requires that every violation MSHA cites must be abated by the date and time specified in the citation. Mine operators are required by law to abate cited conditions – whether they agree that it’s a violation or not. Contesting a citation does not stay the requirement to abate.
If the operator does not fully abate the violation within the set time, the Mine Act states that the agency is to issue a Section 104(b) withdrawal order for failure to abate. The order requires the immediate withdrawal of all persons from the area affected by the violation until the inspector determines the violation has been abated.
The one exception is people necessary to complete the actions necessary for abatement. They may enter the closed area for abatement purposes only.
Once the abatement is complete, the affected area must remain closed until an inspector issues a notice terminating the order. There can sometimes be a delay between the installation of the abatement measures and when an inspector returns to inspect the abatement. If the delay imposes a serious production or maintenance issue, the operator may try to contact the inspector or supervisor to request a termination visit.
Failure to abate issues also impacts civil penalties. In addition to the penalty MSHA will assess for the underlying citation, the agency may assess a civil penalty for a Section 104(b) order.
The Mine Act states that daily penalties may be assessed. This is rare, though. What is not rare is that the 104(b) order will cause the penalty for the original citation to be assessed at a higher amount than it otherwise would be.
This is because one of six criteria in the Mine Act for assessing penalties is the operator’s good faith in abating the violation. This good faith factor typically results in a 10 percent penalty reduction. MSHA will not apply the reduction if a 104(b) order was issued.
Deadlines, extensions and compliance strategies
Operator abatement concerns will typically focus on the means of abatement and the time for abatement. Regarding timing, the Mine Act provides operators with an opportunity to request an extension on the abatement time set by the inspector. Section 104(a) states that the time MSHA sets for abatement must be “reasonable.”
As soon as the operator receives a citation, one of the first things mine personnel will want to look at is the deadline for abatement. This appears on the citation itself. If it is immediately obvious that more time will be needed, management may raise that with the inspector.
It can be helpful to provide details on what will be needed for the abatement – perhaps parts that must be ordered or a contractor that must be brought in. The inspector may also want to know what measures the mine will take to protect people from being exposed to the cited hazard. Installing barricades with signage specifying the hazard may be appropriate. A judge should not consider it an admission of a violation to take these steps.
If it becomes apparent later that more time is needed to complete the abatement, the operator will want to contact the inspector sooner rather than later.
Abatement deadlines can be extended multiple times – as long as the additional extension is reasonable. Being able to show progress toward abatement can be helpful.
Issues also can arise regarding the means of abatement. MSHA should not require more than what’s reasonably necessary for compliance with a cited standard.
Orders and citations
Additionally, operators can contest 104(b) orders. The contest needs to be filed within 30 days of receipt of the order. Contesting the 104(b) order does not, in and of itself, remove the abatement requirement while the contest proceeding is ongoing.
If the operator is successful in the contest, however, the operator may get relief from the method or timing of the abatement. Successful contest of the underlying citation may remove the abatement requirement entirely.
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.
