2018

MSHA—Willful Violation of a Mandatory Health or Safety Standard or Withdrawal Order

Title 30 U.S.C. § 820(d) provides criminal penalties for any operator who willfully fails to comply with a mandatory health or safety standard, or who knowingly violates or refuses to comply with an order under 30 U.S.C. § 814 or § 817. Section 820(d) applies to "operators" of mines subject to the Mine Safety and Health Act. Mines subject to coverage include coal or other mines, the products of which enter commerce, or the operations or products of which affect commerce. See 30 U.S.C. §  803. Note that the Act now covers all mines not just coal mines. See 30 U.S.C. § 802(h)(i). "Operator" is defined to include any owner, lessee, or other persons who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine. 30 U.S.C. § 802(d). The government must prove the following three elements in order to establish an offense under 30 U.S.C. § 820(d): (1) the defendant is an operator of a coal or other mine which is subject to the Act, (2) the defendant violated a mandatory health or safety standard or an order of withdrawal at that mine, and (3) the violation was willful. Section 820(c) provides that whenever a corporate operator violates section 820(d), any director, officer, or agent of the corporate violator who knowingly authorized, ordered or carried out the act constituting the violation shall be subject to the same penalties as can be imposed under 30 U.S.C. § 820(d). Similarly, culpable agents of operators which are partnerships or sole proprietorships, rather than corporations, are punishable as principals under 18 U.S.C. § 2 as aiders and abettors of the operators violation. To be guilty of a section 820(d) offense, the operator must have violated a mandatory health or safety standard under the Act or an order pursuant to 30 U.S.C. § 814 or § 817. Sections 814 and 817 set forth provisions for orders requiring operators to cause all persons, other than certain specified persons, to be withdrawn from and prohibited from entering certain areas of a mine. Mandatory health and safety standards are established either by statute or by regulation. The statute itself sets forth interim mandatory health standards for underground coal mines at 30 U.S.C. §§ 841-846, and interim mandatory safety standards for underground coal mines at 30 U.S.C. §§ 861-878. Regulations setting forth mandatory health and safety standards for various types of mines are found in Title 30 of the Code of Federal Regulations. Regulations establishing or modifying mandatory health or safety standards can form the basis of a criminal prosecution only when they have been promulgated under the formal rulemaking procedures of 30 U.S.C. §  811. United States v. Final Coal, 493 F.2d 285 (6th Cir. 1974); United States v. Consolidation Coal Co., 477 F.Supp 283, 286 (S.D.Ohio 1979). Care should be exercised to insure that criminal charges are based only on mandatory health or safety standards set forth in the statute or properly promulgated under 30 U.S.C. § 811. Finally, the violation of the mandatory health or safety standard or withdrawal order must be willful. The leading case on the intent requirement of this statute approves a jury instruction that a failure to comply with a mandatory health or safety standard is willful, "if done knowingly and purposefully by a mine operator who, having a free will or choice, either intentionally disobeys the standard or recklessly disregards its requirements." United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974).