CHAPTER 8 IMPOSITION AND ENFORCEMENT OF PENALTIES UNDER THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969

• Jurisdiction: United States

Mine Health and Safety
(Oct 1973)
CHAPTER 8
IMPOSITION AND ENFORCEMENT OF PENALTIES UNDER THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969
Robert Delaney, Esq.
Delany and Balcomb
Glenwood Springs, Colorado

The Federal Coal Mine Health and Safety Act of 1969 was enacted by Congress under the hot glare of television lights and the full impact of the media on Congress following the Manning, West Virginia disaster. It is a mixture of good and bad legislation. The objectives of the Act are surely good. A massive safety effort in the coal mines was long overdue, and coal operators welcomed this effort and were willing to pay the price for relevant effective safety measures. Probably the best aspect of this Act is a mandatory directive by Congress that government, industry and labor shall embark on a joint effort to provide a safe working environment and greatly improved technology for the mining of coal.

On the other side, in the best traditions of the media, the coal operators were categorized as the villains, and it was represented that if only enough inspections were made and heavy enough penalties imposed, then the operators would "shape up" and injuries in the mines would be relegated to the dark ages. Responsive to this, Congress, without properly doing their home-work, proscribed a vast array of acts or omissions, and left it to the discretion of the Secretary to proscribe by regulation an additional array of acts and omissions. The proscribed acts and omissions can be classified either as civil violations with fines up to $10,000.00 for each incident, under the euphemism of "civil penalties," or as crimes with fines up to $25,000.00, or imprisonment up to one year, or both for each offense. A second conviction can carry up to $50,000.00 and up to five years, or both. (Sec. 109 of the Act) In keeping with this attitude, the Secretary of Interior launched a massive, punitive drive which traumatized the coal industry, closed thousand of mines,

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resulted in two injunctions against illegal regulations and procedures being followed by the Secretary of Interior, and now leaves an aftermath of over $25,000,000 in fines tained by these illegal procedures.

At this time, three and one half years after the Act became effective, in the face of brown-outs and acute energy shortage a change of attitude may be sensed. There is a growing realization that mine safety requires education, technology and other ingredients than simply punishing operators. The Bureau of Mines, thrust into the role of a tough cop, without previous law enforcement experience, forced to hire hundreds of new inspectors not qualified to be cops, and goaded by politicians who knew little and cared less about coal mining technology, issued thousands of citations and imposed millions of dollars in penalties under conditions that gave trial lawyers a field day when they were finally reached for hearing.

In the future, enforcement practices promise to be different. For the most part, inspectors a doing a much better job in preparing their cases. Fewer citations are being written. the MESA organization is being run by professionals who are evincing a greater recognition of due process requirements. Modifications, interpretations, and the simple application of common sense, have reduced the impact of some of the more asinine provisions of the Act and of the regulations. Nevertheless, the screws continue to be tightened; the regulations are there and the enforcement practices are being improved.

Inspectors are practically given autonomy in the making of inspections, and some inspectors are arbitrary, unreasonable and often abuse their authority. Summary appeal procedures are lacking. Under present rules, the first opportunity for effective hearing is before the Board of Mine Operations Appeals on hearings conducted by Administrative Law Judges of the Department of the Interior.

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I. STATUTORY PROVISIONS

(a) Civil Penalties

Section 109(a)(1) prescribes a civil penalty, not exceeding $10,000.00 for each violation of a mandatory health or safety standard, or other provision of the Act, (except Title IV relating to Black Lung Benefits); and (ii) a civil penalty up to $250.00 against a miner violating safety standards relating to smoking or smoking materials, matches or lighters; and (b) criminal penalty up to $25,000.00, or imprisonment for not more than a year, or if for a violation committed after the first conviction of the operator, by fine up to $50,000.00 or imprisonment for not more than five years, or by both.

Section 109(a)(1) further provides:

"Indetermining the amount of the penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation."

Probably the most important section of the Act in safeguarding a coal operator's rights is Section 109(a)(3), which reads as follows:

"A civil penalty shall...