OCTOBER 30, 2006

Flagrant Violations = Civil Penalties up to $220,000 

The Mine Improvement and New Emergency Response Act of 2006 (MINER) includes a provision that would allow civil penalties up to $220,000 for flagrant violations of mandatory mine safety and health standards.  MINER defines a flagrant violation as:

 “…a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.”

In an attempt to establish uniform procedures for mine inspectors to determine whether a violation is flagrant, MSHA has issued PROCEDURE INSTRUCTION LETTER NO. I06-III-04, “Procedures for Evaluating Flagrant Violations.”  These instructions to MSHA inspectors provide valuable insight into how this new provision, which more than triples the previous maximum fine, will be implemented.  Every operator should be aware of these instructions and should be prepared to respond should an inspector indicate that a flagrant violation citation is to be issued. 

The key elements of this Procedure Instruction Letter are: 

a.  A violation could be considered flagrant if two prior "unwarrantable failure" violations of the same safety or health standard have been cited within the past 15 months, disregarding the statutory requirement that the violation be reckless or a repeated failure to make reasonable efforts,

b.  The inspector should take mitigating circumstances into account, such as new mine ownership, or new safety officials at the mine who have shown an increased commitment to improving compliance, and 

c.  MSHA District Managers should notify mine operators and miners' representatives if a mine's enforcement history makes it eligible for issuance of flagrant violations (although MSHA’s failure to do this will not preclude issuance of flagrant violation citations).  

The following is the text of the procedure instruction letter: 

Procedure

1) Flagrant violations cited by Mine Safety and Health Administration (MSHA) inspectors must meet the following evaluation criteria for reckless failure or repeated failure violations:

For violations that are the result of reckless failure to make reasonable efforts to eliminate a known violation —

1. Citation or order is evaluated as significant and substantial,

2. Injury or illness is evaluated as at least permanently disabling,

3. Citation or order is evaluated as an unwarrantable failure, and

4. Negligence is evaluated as reckless disregard.

For violations that are the result of repeated failure to make reasonable efforts to eliminate a known violation -

1. Citation or order is evaluated as significant and substantial,

2. Injury or illness is evaluated as at least permanently disabling,

3. Type of action is evaluated as an unwarrantable failure, and

4. At least two prior "unwarrantable failure" violations of the same safety or health standard have been cited within the past 15 months.

In addition, if the violation meets the above criteria it must also be evaluated to determine if it proximately caused, or could have reasonably been expected to cause, death or serious bodily injury. A proximate cause is one which directly produces the injury or death and without which the injury or death would not have occurred.

In addition to the serious or aggravating circumstances already referenced on the MSHA Special Assessment Review (SAR) Form, the inspector and reviewing supervisors should also document any mitigating circumstances. Examples of mitigating circumstances might include new mine ownership or new safety officials at the mine who have shown an increased commitment to improving compliance.

2) All flagrant violations will be specially assessed. To initiate the special assessment process, the inspector must complete a SAR Form for each proposed flagrant violation cited, clearly identifying it as potentially flagrant. The above criteria must be addressed on the form. The SAR Form has been revised to include a check box to be used to identify violations as flagrant. Inspectors and higher level reviewers must consider all factors and circumstances and check the "flagrant violation" box in their respective section (section 10 through 13) of the SAR Form before forwarding the SAR Form to the appropriate Administrator for review. All SAR Forms for violations that meet the numbered objective criteria outlined above must be submitted to the Administrator even if the District Manager does not recommend a flagrant violation special assessment because of the absence of proximate cause or the presence of mitigating factors. The Administrator will forward the completed SAR Form along with the underlying citation or order to the Assessment Center in Wilkes-Barre, Pennsylvania.

3) When possible and appropriate, MSHA District Managers should notify mine operators and miners' representatives if a mine's enforcement history makes it eligible for issuance of flagrant violations. However, MSHA's failure to notify mine operators and miners' representatives of this eligibility does not preclude issuance of these types of violations.

Chemical Facility Security

The Department of Homeland Security (DHS) Appropriations Act of 2007 contains provisions that address chemical facility security.  DHS is required to issue interim regulations by April 2007 that establish risk-based performance standards for security of chemical facilities presenting high levels of security risk.

These regulations will require vulnerability assessments of such plants and the development and implementation of site security plans, both of which would have to be approved by DHS. The legislation provides for inspections of facilities, permits the department to shut down facilities that fail to comply, and provides for civil penalties of up to $25,000 for each day a violation continues.

It is uncertain to which facilities the requirements will apply, because the legislation does not provide criteria for choosing high-risk facilities.  DHS is required to issue regulations for chemical facilities that present high levels of security risk.  DHS has indicated that it intends to concentrate on facilities that could endanger the greatest number of lives, have the greatest economic impact, or present other very significant risks, if attacked.  It appears that DHS may adopt the list of facilities subject to risk management plans under Clean Air Act, amending it somewhat to adjust for risks. DHS is considering placing facilities that store explosives on the list.

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The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government health and safety agency in the United States and throughout the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, John Austin (jaustin@pattonboggs.com) at 202-457-6167 or Willa Perlmutter (wperlmutter@pattonboggs.com) at 202-457-5223.

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