30 U.S.C. § 814 — Citations and orders

Page 137 TITLE 30—MINERAL LANDS AND MINING § 814 Secretary thereof and shall take appropriate measures to prevent the destruction of any evi- dence which would assist in investigating the cause or causes thereof. For purposes of the pre- ceding sentence, the notification required shall be provided by the operator within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred. In the event of any accident occur- ring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine. (k) Safety orders; recovery plans In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal. (Pub. L. 91–173, title I, § 103, Dec. 30, 1969, 83 Stat. 749; Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1297; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695; Pub. L. 109–236, § 5(a), June 15, 2006, 120 Stat. 498.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (c), and (e) to (h), was in the original ‘‘this Act’’, meaning Pub. L. 91–173, Dec. 30, 1969, 83 Stat. 742, known as the Federal Mine Safety and Health Act of 1977, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 801 of this title and Tables. AMENDMENTS 2006—Subsec. (j). Pub. L. 109–236 inserted second sen- tence. 1977—Subsec. (a). Pub. L. 95–164 inserted provisions authorizing representatives of the Secretary of Health, Education, and Welfare to make inspections, expanded the area of inspection and investigation to include mines other than coal mines, inserted provisions re- quiring the inspection of surface mines at least two times a year, inserted provisions requiring the develop- ment of guidelines for additional inspections of mines, and inserted provisions, formerly contained in subsec. (b), authorizing the entry to, upon, or through, any coal or other mine for the purpose of making inspection or investigation. Subsec. (b). Pub. L. 95–164 redesignated subsec. (d) as (b) and substituted ‘‘coal or other mine’’ for ‘‘coal mine’’. Provisions of former subsec. (b) were incor- porated into subsec. (a). Subsecs. (c) to (e). Pub. L. 95–164 added subsecs. (c) to (e), struck out former subsec. (c) which provided for the utilization of facilities and personnel of other Federal agencies, and redesignated former subsecs. (d) and (e) as (b) and (j), respectively. Subsec. (f). Pub. L. 95–164 redesignated subsec. (h) as (f), inserted provision for a representative of the oper- ator to accompany the Secretary or his representative in the physical inspection of a mine, extended the pro- visions to cover mines other than coal mines, and in- serted provisions relating to the choice of the author- ized representative of the miners, the representative’s duties, and the choice of more than one representative. Former subsec. (f) redesignated (k). Subsec. (g). Pub. L. 95–164 designated existing provi- sions as par. (1), inserted provisions to par. (1) as so designated which extended the right to an immediate inspection to individual miners when there is no rep- resentative of the miners, provided for immediate noti- fication to the mine operator or his agent if the com- plaint indicates that the danger is imminent, kept the name of the person giving the notice and the names of the individual miners off the copy or notification, and required the Secretary to notify the miners or their representatives if he determines that a violation or danger does not exist, and added par. (2). Subsec. (h). Pub. L. 95–164 added subsec. (h). The pro- visions of former subsec. (h), relating to the right of the miners’ representative to accompany the author- ized representative of the Secretary on the inspection, were incorporated into subsec. (f). Subsec. (i). Pub. L. 95–164 inserted definition of ‘‘lib- eration of excessive quantities of methane or other ex- plosive gases’’ and inserted provisions for a reduced schedule of one spot inspections in mines with libera- tion rates for methane or other explosive gases lower than that required to qualify as ‘‘excessive’’. Subsecs. (j), (k). Pub. L. 95–164 redesignated former subsecs. (e) and (f) as (j) and (k), respectively. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsecs. (a), (c), (e), and (h) pursuant to section 509(b) of Pub. L. 96–88 which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–164 effective 120 days after Nov. 9, 1977, except as otherwise provided, see section 307 of Pub. L. 95–164, set out as a note under section 801 of this title. EFFECTIVE DATE Section operative 90 days after Dec. 30, 1969, except to the extent an earlier date is specifically provided for in Pub. L. 91–173, see section 509 of Pub. L. 91–173, set out as a note under section 801 of this title. § 814. Citations and orders (a) Issuance and form of citations; prompt issuance If, upon inspection or investigation, the Sec- retary or his authorized representative believes that an operator of a coal or other mine subject to this chapter has violated this chapter, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this chapter, he shall, with reasonable prompt- ness, issue a citation to the operator. Each cita- tion shall be in writing and shall describe with particularity the nature of the violation, includ- ing a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the en- forcement of any provision of this chapter. Page 138 TITLE 30—MINERAL LANDS AND MINING § 814 (b) Follow-up inspections; findings If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) that a violation described in a citation issued pursuant to subsection (a) has not been totally abated within the period of time as originally fixed therein or as subse- quently extended, and (2) that the period of time for the abatement should not be further ex- tended, he shall determine the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine or his agent to immediately cause all per- sons, except those persons referred to in sub- section (c), to be withdrawn from, and to be pro- hibited from entering, such area until an au- thorized representative of the Secretary deter- mines that such violation has been abated. (c) Exempt persons The following persons shall not be required to be withdrawn from, or prohibited from entering, any area of the coal or other mine subject to an order issued under this section: (1) any person whose presence in such area is necessary, in the judgment of the operator or an authorized representative of the Secretary, to eliminate the condition described in the order; (2) any public official whose official duties require him to enter such area; (3) any representative of the miners in such mine who is, in the judgment of the operator or an authorized representative of the Sec- retary, qualified to make such mine examina- tions or who is accompanied by such a person and whose presence in such area is necessary for the investigation of the conditions de- scribed in the order; and (4) any consultant to any of the foregoing. (d) Findings of violations; withdrawal order (1) If, upon any inspection of a coal or other mine, an authorized representative of the Sec- retary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could signifi- cantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such find- ing in any citation given to the operator under this chapter. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all per- sons in the area affected by such violation, ex- cept those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized rep- resentative of the Secretary determines that such violation has been abated. (2) If a withdrawal order with respect to any area in a coal or other mine has been issued pur- suant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representa- tive of the Secretary who finds upon any subse- quent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under para- graph (1) until such time as an inspection of such mine discloses no similar violations. Fol- lowing an inspection of such mine which dis- closes no similar violations, the provisions of paragraph (1) shall again be applicable to that mine. (e) Pattern of violations; abatement; termination of pattern (1) If an operator has a pattern of violations of mandatory health or safety standards in the coal or other mine which are of such nature as could have significantly and substantially con- tributed to the cause and effect of coal or other mine health or safety hazards, he shall be given written notice that such pattern exists. If, upon any inspection within 90 days after the issuance of such notice, an authorized representative of the Secretary finds any violation of a manda- tory health or safety standard which could sig- nificantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, the authorized representative shall issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited from entering, such area until an au- thorized representative of the Secretary deter- mines that such violation has been abated. (2) If a withdrawal order with respect to any area in a coal or other mine has been issued pur- suant to paragraph (1), a withdrawal order shall be issued by an authorized representative of the Secretary who finds upon any subsequent in- spection the existence in such mine of any viola- tion of a mandatory health or safety standard which could significantly and substantially con- tribute to the cause and effect of a coal or other mine health or safety hazard. The withdrawal order shall remain in effect until an authorized representative of the Secretary determines that such violation has been abated. (3) If, upon an inspection of the entire coal or other mine, an authorized representative of the Secretary finds no violations of mandatory health or safety standards that could signifi- cantly and substantially contribute to the cause and effect of a coal or other mine health and safety hazard, the pattern of violations that re- sulted in the issuance of a notice under para- graph (1) shall be deemed to be terminated and the provisions of paragraphs (1) and (2) shall no longer apply. However, if as a result of subse- quent violations, the operator reestablishes a pattern of violations, paragraphs (1) and (2) shall again be applicable to such operator. (4) The Secretary shall make such rules as he deems necessary to establish criteria for deter- mining when a pattern of violations of manda- tory health or safety standards exists. Page 139 TITLE 30—MINERAL LANDS AND MINING § 814 (f) Respirable dust concentrations; dust control person or team If, based upon samples taken, analyzed, and recorded pursuant to section 842(a) of this title, or samples taken during an inspection by an au- thorized representative of the Secretary, the ap- plicable limit on the concentration of respirable dust required to be maintained under this chap- ter is exceeded and thereby violated, the Sec- retary or his authorized representative shall issue a citation fixing a reasonable time for the abatement of the violation. During such time, the operator of the mine shall cause samples de- scribed in section 842(a) of this title to be taken of the affected area during each production shift. If, upon the expiration of the period of time as originally fixed or subsequently ex- tended, the Secretary or his authorized rep- resentative finds that the period of time should not be further extended, he shall determine the extent of the area affected by the violation and shall promptly issue an order requiring the oper- ator of such mine or his agent to cause imme- diately all persons, except those referred to in subsection (c), to be withdrawn from, and to be prohibited from entering, such area until the Secretary or his authorized representative has reason to believe, based on actions taken by the operator, that such limit will be complied with upon the resumption of production in such mine. As soon as possible after an order is issued, the Secretary, upon request of the operator, shall dispatch to the mine involved a person, or team of persons, to the extent such persons are avail- able, who are knowledgeable in the methods and means of controlling and reducing respirable dust. Such person or team of persons shall re- main at the mine involved for such time as they shall deem appropriate to assist the operator in reducing respirable dust concentrations. While at the mine, such persons may require the oper- ator to take such actions as they deem appro- priate to insure the health of any person in the coal or other mine. (g) Untrained miners (1) If, upon any inspection or investigation pursuant to section 813 of this title, the Sec- retary or an authorized representative shall find employed at a coal or other mine a miner who has not received the requisite safety training as determined under section 825 of this title, the Secretary or an authorized representative shall issue an order under this section which declares such miner to be a hazard to himself and to oth- ers, and requiring that such miner be imme- diately withdrawn from the coal or other mine, and be prohibited from entering such mine until an authorized representative of the Secretary determines that such miner has received the training required by section 825 of this title. (2) No miner who is ordered withdrawn from a coal or other mine under paragraph (1) shall be discharged or otherwise discriminated against because of such order; and no miner who is or- dered withdrawn from a coal or other mine under paragraph (1) shall suffer a loss of com- pensation during the period necessary for such miner to receive such training and for an au- thorized representative of the Secretary to de- termine that such miner has received the req- uisite training. (h) Duration of citations and orders Any citation or order issued under this section shall remain in effect until modified, terminated or vacated by the Secretary or his authorized representative, or modified, terminated or va- cated by the Commission or the courts pursuant to section 815 or 816 of this title. (Pub. L. 91–173, title I, § 104, Dec. 30, 1969, 83 Stat. 750; Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1300.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (d)(1), and (f), was in the original ‘‘this Act’’, meaning Pub. L. 91–173, Dec. 30, 1969, 83 Stat. 742, known as the Federal Mine Safety and Health Act of 1977, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 801 of this title and Tables. AMENDMENTS 1977—Subsec. (a). Pub. L. 95–164 substituted provi- sions directing the Secretary to issue a citation to the operator based upon the belief of the Secretary or his authorized representative, after inspection or inves- tigation, that there has been a violation of this chapter or any mandatory health or safety standard, rule, order, or regulation for provisions that had related to the issuance of a withdrawal order upon a finding that an imminent danger existed. Subsec. (b). Pub. L. 95–164 substituted provisions set- ting out the steps to be taken if, upon any follow-up in- spection of a coal or other mine, the authorized rep- resentative of the Secretary finds that a citation viola- tion has not been abated and that the time for abate- ment should not be extended for provisions that had set out the steps to be taken in the case of a violation that did not create an imminent danger. Subsec. (c). Pub. L. 95–164 redesignated subsec. (d) as (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 95–164 redesignated subsec. (c) as (d) and substituted reference to ‘‘citation’’ for ref- erence to ‘‘notice’’. Former subsec. (d) redesignated (c). Subsec. (e). Pub. L. 95–164 substituted provisions re- lating to the steps to be taken if an operator has a pat- tern of violations of mandatory health or safety stand- ards for provisions setting out the requisites of notices and orders issued pursuant to this section. Subsec. (f). Pub. L. 95–164 redesignated subsec. (i) as (f). Former subsec. (f), relating to the delivery of no- tices and orders issued under this section, was incor- porated into subsec. (a). Subsec. (g). Pub. L. 95–164 added subsec. (g). Former subsec. (g), relating to the modification and termi- nation of notice, was incorporated into subsec. (h). Subsec. (h). Pub. L. 95–164 added subsec. (h). Provi- sions of former subsec. (h), which related to steps to be taken when a condition existed which could not be abated through the use of existing technology, were covered in the general revision of subsecs. (d) and (e). Subsec. (i). Pub. L. 95–164 redesignated subsec. (i) as (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–164 effective 120 days after Nov. 9, 1977, except as otherwise provided, see section 307 of Pub. L. 95–164, set out as a note under section 801 of this title. EFFECTIVE DATE Section operative 90 days after Dec. 30, 1969, except to the extent an earlier date is specifically provided for in Page 140 TITLE 30—MINERAL LANDS AND MINING § 815 Pub. L. 91–173, see section 509 of Pub. L. 91–173, set out as a note under section 801 of this title. § 815. Procedure for enforcement (a) Notification of civil penalty; contest If, after an inspection or investigation, the Secretary issues a citation or order under sec- tion 814 of this title, he shall, within a reason- able time after the termination of such inspec- tion or investigation, notify the operator by cer- tified mail of the civil penalty proposed to be as- sessed under section 820(a) of this title for the violation cited and that the operator has 30 days within which to notify the Secretary that he wishes to contest the citation or proposed as- sessment of penalty. A copy of such notification shall be sent by mail to the representative of miners in such mine. If, within 30 days from the receipt of the notification issued by the Sec- retary, the operator fails to notify the Secretary that he intends to contest the citation or the proposed assessment of penalty, and no notice is filed by any miner or representative of miners under subsection (d) of this section within such time, the citation and the proposed assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency. Refusal by the operator or his agent to accept certified mail containing a cita- tion and proposed assessment of penalty under this subsection shall constitute receipt thereof within the meaning of this subsection. (b) Failure of operator to correct violation; noti- fication; contest; temporary relief (1)(A) If the Secretary has reason to believe that an operator has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Sec- retary shall notify the operator by certified mail of such failure and of the penalty proposed to be assessed under section 820(b) of this title by reason of such failure and that the operator has 30 days within which to notify the Secretary that he wishes to contest the Secretary’s notifi- cation of the proposed assessment of penalty. A copy of such notification of the proposed assess- ment of penalty shall at the same time be sent by mail to the representative of the mine em- ployees. If, within 30 days from the receipt of notification of proposed assessment of penalty issued by the Secretary, the operator fails to no- tify the Secretary that he intends to contest the notification of proposed assessment of penalty, such notification shall be deemed a final order of the Commission and not subject to review by any court or agency. Refusal by the operator or his agent to accept certified mail containing a notification of proposed assessment of penalty issued under this subsection shall constitute re- ceipt thereof within the meaning of this sub- section. (B) In determining whether to propose a pen- alty to be assessed under section 820(b) of this title, the Secretary shall consider the operator’s history of previous violations, the appropriate- ness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s abil- ity 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 viola- tion. (2) An applicant may file with the Commission a written request that the Commission grant temporary relief from any modification or ter- mination of any order or from any order issued under section 814 of this title together with a de- tailed statement giving the reasons for granting such relief. The Commission may grant such re- lief under such conditions as it may prescribe, if— (A) a hearing has been held in which all par- ties were given an opportunity to be heard; (B) the applicant shows that there is sub- stantial likelihood that the findings of the Commission will be favorable to the applicant; and (C) such relief will not adversely affect the health and safety of miners. No temporary relief shall be granted in the case of a citation issued under subsection (a) or (f) of section 814 of this title. The Commission shall provide a procedure for expedited consideration of applications for temporary relief under this paragraph. (c) Discrimination or interference prohibited; complaint; investigation; determination; hearing (1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the opera- tor’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the sub- ject of medical evaluations and potential trans- fer under a standard published pursuant to sec- tion 811 of this title or because such miner, rep- resentative of miners or applicant for employ- ment has instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this chapter. (2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or other- wise discriminated against by any person in vio- lation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the re- spondent and shall cause such investigation to be made as he deems appropriate. Such inves- tigation shall commence within 15 days of the Secretary’s receipt of the complaint, and if the Secretary finds that such complaint was not