Emily Schimelpfenig, a colleague of Willa Perlmutter at Stoel Rives LLP, is guest writing on this issue’s column. Emily is an experienced attorney who represents and advises clients on both Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA) compliance, contests, and accident investigations. In this column, Emily breaks down the differences between MSHA citations and orders – essential reading for any operator aiming to stay ahead of enforcement risks.
Introduction
As a mine operator, navigating MSHA’s regulatory landscape can be complex and, at times, frustrating. Among the most common sources of confusion is the distinction between two of MSHA’s enforcement tools under the Federal Mine Safety and Health Act of 1977 (the Mine Act): citations and orders. Understanding what these terms mean, how they differ, and the various types of each is crucial for compliance and defense strategy.
Citations vs. Orders: What is the Difference?
MSHA inspectors use citations and orders to enforce the Mine Act. Citations and orders are generally identified by the Mine Act section under which they arise. A citation is typically issued when an inspector identifies a violation of the Mine Act an MSHA safety or health standard, or other regulation. It notifies the operator of the alleged violation and sets a time by which the condition must be corrected (called the “abatement period”). An order, on the other hand, does not allow any time for abatement. Miners must be pulled out of the area or taken off equipment immediately until certain conditions are met. Subject to certain detailed rules, idled miners are generally entitled to pay while an order is in effect.
§ 104(a) Citation
The vast majority of citations issued are § 104(a) citations. A § 104(a) citation is issued when an inspector observes a condition or practice that they believe violates the Mine Act an MSHA safety or health standard, or other regulation. An operator is legally entitled to a reasonable time to abate the violation, and a civil penalty is assessed based on the MSHA inspector’s findings. These citations should not cause significant concern unless you are getting several repeatedly.
§ 104(d)(1) & (2) Citation and Order – Unwarrantable Failure
A § 104(d)(1) citation is more serious. Now, in addition to a violation of the Mine Act, an MSHA safety or health standard, or other regulation, the MSHA inspector has determined that the alleged violation was “significant and substantial” (S&S) and caused by an “unwarrantable failure.” An “unwarrantable failure” is “aggravated conduct constituting more than ordinary negligence by a mine operator in relation to a violation of the Act” such as reckless disregard, intentional misconduct, indifference, or a serious lack of reasonable care. In making this determination, MSHA considers several factors, including:
- Length of time the violation has existed;
- Extent of the violative condition;
- Efforts to abate;
- Degree of danger; and
- Knowledge of the existence of the violation.
These are still citations, meaning that an operator has a reasonable time to abate, but by law they come with higher penalties than a § 104(a) citation.
A section 104(d)(1) citation also opens a 90-day inspection window. If MSHA inspects the mine again within 90 days (and they typically do) and they find another violation of the Mine Act, an MSHA safety or health standard, or other regulation that was S&S and an unwarrantable failure, then MSHA will issue a § 104(d)(1) order. Unlike the § 104(d)(1) citation, there is no time for abatement: a § 104(d) order requires withdrawal from the affected area immediately. A section 104(d)(1) order also opens another 90-day inspection window. Once an operator is on the d-chain, the only way to get off is for 90 days to pass without MSHA issuing another unwarrantable failure violation.
§ 107(a) Order – Imminent Danger
The § 107(a) order is perhaps the most urgent type of order. No violation of the Mine Act, an MSHA safety or health standard, or other regulation is required to issue a § 107(a) order. Instead, this order is issued on the spot if an MSHA inspector determines that miners are in “imminent danger.” Imminent danger is “the existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.” For example, a miner standing on a scaffold without fall protection could be an imminent danger in the eyes of an inspector. When a § 107(a) order is issued, miners must immediately withdraw from the affected area until the danger is resolved. There is no penalty for this type of order.
§ 104(b) Order – Failure to Abate
If an operator fails to correct a condition cited in a § 104(a) citation within the abatement period, the inspector may issue a § 104(b) order. Because it is an order, it requires the withdrawal of all persons from the affected area (except those necessary to correct the condition) until the violation is abated. A daily penalty might be imposed for failing to abate the condition. This type of order underscores the importance of timely abatement and communication with the inspector if additional time is needed.
§ 104(g) Order – Training
A § 104(g) order is issued when an inspector determines that a miner has not received the required MSHA training. This order requires the immediate withdrawal of the untrained miner from the mine, and there are high penalties associated with § 104(g) orders. If an operator receives a § 104(g) order, the first thing they should do is re-train that miner and document the training, regardless of whether they are going to challenge it.
§§ 103(j) and (k) Order – Accident Scene Control
Following a reportable accident or fatality, MSHA may issue a § 103(j) or (k) order to control the accident scene. Typically, a § 103(j) is issued over the phone when an operator makes their required 15-minute accident reporting call. A § 103(k) is only when an investigator is present, so once the investigator arrives on the scene, he will most likely modify the (j) order to one pursuant to § 103(k).
These orders give MSHA broad authority to secure the site, preserve evidence, and protect personnel during the investigation. Operators must comply with these orders and coordinate with MSHA regarding any intended actions within the affected area. There are no penalties associated with these orders.
Final Thoughts
While both citations and orders are enforcement tools used by MSHA, they differ significantly in purpose, severity, and consequence. A citation requires correction of a violation within a specified, reasonable time, whereas an order requires immediate withdrawal of miners and signals a more serious situation. The penalties also vary based on the type and severity of the citation or order. Understanding the distinctions can help mine operators prepare, respond effectively, and reduce the risk of repeat violations or more severe enforcement actions.
Emily Schimelpfenig is an associate in Stoel Rives’ Environment, Land Use & Natural Resources group, where she advises clients on a wide range of environmental law matters. She helps businesses navigate federal, state, and local environmental regulations, providing strategic guidance on compliance and risk management.