CHAPTER 6 REVIEW OF NOTICES AND ORDERS FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969

• Jurisdiction: United States

Mine Health and Safety
(Oct 1973)
CHAPTER 6
REVIEW OF NOTICES AND ORDERS FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969
Thomas E. Boettger
General Councel Eastern Associated Coal Corp.
Pittsburgh, Pennsylvania

A. Introduction

The Federal Coal Mine Health and Safety Act of 1969 (the "Act") is a broad based occupational health and safety law. Others have touched on the scope of the Act in detail, but again, briefly the law includes detailed substantive standards on all aspects of coal mining; it provides the Secretary of the Department of the Interior with the authority to adopt regulations refining and broadening the substantive standards; it provides for a number of alternative enforcement tools for the use of mine inspectors; it provides for a reasonably detailed administrative review process whereby various decisions of mine inspectors and the Secretary can be challenged; and it also contains a procedure whereby the Secretary can exact civil penalties from coal mine operators for violations of the substantive standards. This discussion will center on one element of the administrative review process, the Application for Review under Section 105.

B. Enforcement Actions to which Application for Review Cases are Directed

The key enforcement tools available to mine inspectors are set out in Section 104 of the Act and include the following three general classifications:

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(1) Notices of Violation — These are issued by an inspector under Section 104(b) in order to notify a mine operator that he is in technical violation of the Act or a regulation and that the violation must be abated by a specific time. If the violation is not corrected within the abatement time, the inspector either issues an Order of Withdrawal closing the mine or the affected section [a (b) Order] or he extends the time within which to abate;

(2) Orders of Withdrawal based on "imminent danger" [an (a) Order] — These are issued by an inspector under Section 104(a) and result in an immediate closure of the entire mine or a specific section. The (a) Order is supposedly followed by the prompt withdrawal of all men from the imminently dangerous area, except those necessary to abate the condition;

(3) Notices of Violation or Orders of Withdrawal based on "unwarrantable failure" [(c) Notices or Orders] — These are issued by an inspector under Section 104(c)(1) or (2) when an operator "unwarrantably" fails to comply with a substantive provision of the Act or regulations, but the condition does not create an imminent danger. The (c) Orders follow a (c) Notice in a confused series of circumstances that are not within the purview of this paper.

In the case of most Withdrawal Orders, the operator sustains an immediate economic loss as a result of curtailment of production If the Order is based on a "violation," another costly event occurs later when the operator is assessed with a civil penalty. Usually

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the only economic consequence of a Notice of Violation is a civil penalty, although the cost of compliance with an erroneous or improper directive can also be very costly.

C. What is the Purpose of the Application for Review Procedure?

If a coal mine operator has been wronged significantly as a result of the issuance of a Withdrawal Order, or notice of violation, delay in resolving the problem may obviate any benefit that may be derived from formal review. Probably it...