The tide of arbitrary enforcement turning

OPERATORS have shuddered at the news of the Mine Safety and Health Administration issuing an exorbitant flagrant penalty assessment. However, as Dinsmore and Shohl attorney Max Corley explains, it is not as bad as it seems.

Staff Reporter

Recent administrative law judgements have stemmed the tide by questioning MSHA’s authority to issue flagrant assessments based on criteria in Procedure Instruction Letters.

By way of background, Congress passed the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”) and delineated the “flagrant” standard in section 110(b), which increased the maximum penalty for “flagrant” violations from $70,000 to $220,000.

MSHA uses this tool to hold accountable those “[m]ine operators that show reckless disregard for the well-being of their workers . . . [and] MSHA will not hesitate to assess stiff penalties . . .” for such actions.

The administration can establish a flagrant assessment by proving the operator committed either a “reckless failure” or a “repeated failure” to eliminate a known violation.

The requisite proof includes management’s knowledge of the violation and proximate causation.

MSHA issued a final rule on flagrant violations in 2006 as set forth in 30 C.F.R. section 100.5(e), but it failed to define many vague terms.

In an effort to clarify this standard, MSHA issued PIL I06-III-04 (Oct. 26, 2006) and reissued it in PIL I08-III-02 (May 29, 2008), which expired on March 31, 2010.

The Secretary of Labor reiterated the PIL criteria in a news release dated April 19, 2011.

The PIL criteria for a “reckless failure” provides that an operator “recklessly” fails to make reasonable efforts to eliminate a known safety or health violation when:

  • a citation or order is evaluated as significant and substantial
  • the citation or order is evaluated as having the potential to cause an injury that is reasonably likely to be at least permanently disabling
  • the citation or order is designated as an unwarrantable failure to comply with a mandatory safety or health standard under 104(d) of the Mine Act
  • the negligence of the action is designated as a reckless disregard.

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