How Does MSHA Interpret the Negligence of a Citation?
What is Negligence According to MSHA?
Last month, I focused on the MSHA definitions of the gravity of a citation and how knowing those definitions can assist a mine operator during an inspection. This month, I will continue with a related topic, the statutory definitions of the negligence of an MSHA citation. When mine operators know the definitions of negligence, they can ask informed questions regarding the accuracy of a citation and ensure that the inspector is accurately assessing the violation.
Citation Box 11 – Negligence
Negligence is defined by MSHA in § 100.3(d) of the Mine Act as “ . . . conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.”
This definition is, like many standards under the Mine Act, somewhat convoluted. This definition is saying that the Mine Act establishes the minimum standard of care through the health and safety standards, and the mine operator must be vigilant for any violations of the Mine Act. Further, the Mine Act is a “strict liability” statute — a mine operator’s liability under the Mine Act does not depend on actual negligence or intent to harm. Therefore, due to the definition of negligence and the strict liability nature of the Mine Act, MSHA automatically considers any violation negligent behavior. Whether there was intent to harm or even knowledge of the violation is irrelevant, except in cases where the operator could not have known about the violation.
If any violation of the Mine Act is negligent, the next question is: how negligent was the mine operator in allowing the violation to exist? To interpret this question, MSHA uses the five degrees of negligence defined in § 100.3(d):
· No Negligence – The operator exercised diligence and could not have known of the violative condition or practice.
· Low Negligence – The operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.
· Moderate Negligence – The operator knew or should have known of the violative condition or practice, but there are some mitigating circumstances.
· High Negligence – The operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.
· Reckless Disregard – The operator displayed conduct which exhibits the absence of the slightest degree of care.
Inspectors mark “No Negligence” when an operator is diligent in following the rules, and there is no way the operator could have known about the violation. This could arise when the violation occurs due to an unknown malfunction during the inspection, such as a back-up alarm suddenly stops working even though the equipment is well-kept or new. However, these are very rare occurrences!
The difference between “Low”, “Moderate”, and “High” Negligence hinges on the “mitigating circumstances” the operator can prove. Mitigating circumstances are actions that the operator has taken before the inspection to prevent or correct hazardous conditions or practices. Mitigating circumstances can be nearly anything, depending on the violation. Examples include ordering repair parts, posting warning signs, training on that specific issue, or restricting travel in certain areas. If an operator can show that they have done something to prevent or correct the hazard, then the inspector cannot write the citation as high negligence.
Inspectors mark “Reckless Disregard” when an operator knows or should know there is a serious hazard and does nothing to correct it. A reckless disregard citation is saying that the operator did not care if the violation existed or that the violation may injure miners. For example, allowing a hazard to exist uncorrected for an extended amount of time, repeated similar violations in the recent past, or knowledge of the hazard while taking no corrective actions can all go to showing reckless disregard. A citation marked reckless disregard will nearly always be a 104(d) citation.
How Does This Help?
Just like knowing the definitions of gravity, knowing the definitions of the different levels of negligence can help ensure the inspector is accurately evaluating the citation. As discussed, the difference between a “High Negligence” citation and a “Low Negligence” citation is based almost entirely on mitigating circumstances. Therefore, discussing facts surrounding a violation, specifically those that lessen the operator’s responsibility for the violation, can prompt an inspector to reduce the citation. If the operator can show even some small mitigating circumstances, a “High Negligence” designation has difficulty holding water.
This is another area where proper documentation is invaluable. If an operator documents when they discover an issue and what steps they have taken to resolve the issue, it is much harder to write a “High Negligence” citation. Showing when it was discovered can prove that the issue has not existed for an extended amount of time. Having documented proof of blocking off an area immediately and ordering parts can show that the operator was not negligent in allowing the violation to exist. Finally, if the inspector does not take this proof into consideration when writing the citation, a mine operator will be ready to contest it. Physical evidence is always stronger that spoken word and documentation made at the time the issue arises or is discovered will provide weighty evidence during conference.
 30 USC § 100.3(d).