§ 815. — Procedure for enforcement.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 30USC815]
TITLE 30--MINERAL LANDS AND MINING
CHAPTER 22--MINE SAFETY AND HEALTH
SUBCHAPTER I--GENERAL
Sec. 815. Procedure for enforcement
(a) Notification of civil penalty; contest
If, after an inspection or investigation, the Secretary issues a
citation or order under section 814 of this title, he shall, within a
reasonable time after the termination of such inspection or
investigation, notify the operator by certified mail of the civil
penalty proposed to be assessed 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
assessment 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 Secretary, 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 citation 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; notification; 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 Secretary 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 notification of
the proposed assessment of penalty. A copy of such notification of the
proposed assessment of penalty shall at the same time be sent by mail to
the representative of the mine employees. If, within 30 days from the
receipt of notification of proposed assessment of penalty issued by the
Secretary, the operator fails to notify 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
receipt thereof within the meaning of this subsection.
(B) In determining whether to propose a penalty to be assessed under
section 820(b) of this title, the Secretary shall consider the
operator's history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability 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 violation.
(2) An applicant may file with the Commission a written request that
the Commission grant temporary relief from any modification or
termination of any order or from any order issued under section 814 of
this title together with a detailed statement giving the reasons for
granting such relief. The Commission may grant such relief under such
conditions as it may prescribe, if--
(A) a hearing has been held in which all parties were given an
opportunity to be heard;
(B) the applicant shows that there is substantial 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 operator'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 subject of medical evaluations and
potential transfer under a standard published pursuant to section 811 of
this title or because such miner, representative of miners or applicant
for employment 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
otherwise discriminated against by any person in violation 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 respondent and shall cause such investigation to be made as he
deems appropriate. Such investigation shall commence within 15 days of
the Secretary's receipt of the complaint, and if the Secretary finds
that such complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the
complaint. If upon such investigation, the Secretary determines that the
provisions of this subsection have been violated, he shall immediately
file a complaint with the Commission, with service upon the alleged
violator and the miner, applicant for employment, or representative of
miners alleging such discrimination or interference and propose an order
granting appropriate relief. The Commission shall afford an opportunity
for a hearing (in accordance with section 554 of title 5 but without
regard to subsection (a)(3) of such section) and thereafter shall issue
an order, based upon findings of fact, affirming, modifying, or vacating
the Secretary's proposed order, or directing other appropriate relief.
Such order shall become final 30 days after its issuance. The Commission
shall have authority in such proceedings to require a person committing
a violation of this subsection to take such affirmative action to abate
the violation as the Commission deems appropriate, including, but not
limited to, the rehiring or reinstatement of the miner to his former
position with back pay and interest. The complaining miner, applicant,
or representative of miners may present additional evidence on his own
behalf during any hearing held pursuant to his \1\ paragraph.
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``this''.
---------------------------------------------------------------------------
(3) Within 90 days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing, the miner,
applicant for employment, or representative of miners of his
determination whether a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this subsection have
not been violated, the complainant shall have the right, within 30 days
of notice of the Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination or interference in
violation of paragraph (1). The Commission shall afford an opportunity
for a hearing (in accordance with section 554 of title 5 but without
regard to subsection (a)(3) of such section), and thereafter shall issue
an order, based upon findings of fact, dismissing or sustaining the
complainant's charges and, if the charges are sustained, granting such
relief as it deems appropriate, including, but not limited to, an order
requiring the rehiring or reinstatement of the miner to his former
position with back pay and interest or such remedy as may be
appropriate. Such order shall become final 30 days after its issuance.
Whenever an order is issued sustaining the complainant's charges under
this subsection, a sum equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined by the Commission to
have been reasonably incurred by the miner, applicant for employment or
representative of miners for, or in connection with, the institution and
prosecution of such proceedings shall be assessed against the person
committing such violation. Proceedings under this section shall be
expedited by the Secretary and the Commission. Any order issued by the
Commission under this paragraph shall be subject to judicial review in
accordance with section 816 of this title. Violations by any person of
paragraph (1) shall be subject to the provisions of sections 818 and
820(a) of this title.
(d) Contest proceedings; hearing; findings of fact; affirmance,
modification, or vacatur of citation, order, or proposed
penalty; procedure before Commission
If, within 30 days of receipt thereof, an operator of a coal or
other mine notifies the Secretary that he intends to contest the
issuance or modification of an order issued under section 814 of this
title, or citation or a notification of proposed assessment of a penalty
issued under subsection (a) or (b) of this section, or the
reasonableness of the length of abatement time fixed in a citation or
modification thereof issued under section 814 of this title, or any
miner or representative of miners notifies the Secretary of an intention
to contest the issuance, modification, or termination of any order
issued under section 814 of this title, or the reasonableness of the
length of time set for abatement by a citation or modification thereof
issued under section 814 of this title, the Secretary shall immediately
advise the Commission of such notification, and the Commission shall
afford an opportunity for a hearing (in accordance with section 554 of
title 5, but without regard to subsection (a)(3) of such section), and
thereafter shall issue an order, based on findings of fact, affirming,
modifying, or vacating the Secretary's citation, order, or proposed
penalty, or directing other appropriate relief. Such order shall become
final 30 days after its issuance. The rules of procedure prescribed by
the Commission shall provide affected miners or representatives of
affected miners an opportunity to participate as parties to hearings
under this section. The Commission shall take whatever action is
necessary to expedite proceedings for hearing appeals of orders issued
under section 814 of this title.
(Pub. L. 91-173, title I, Sec. 105, Dec. 30, 1969, 83 Stat. 753; Pub. L.
95-164, title II, Sec. 201, Nov. 9, 1977, 91 Stat. 1303.)
Amendments
1977--Subsec. (a). Pub. L. 95-164 substituted provisions under which
the Secretary must notify the operator of the civil penalty he proposes
to assess following the issuance of a citation or order and the operator
must give notice that he will contest the citation or proposed
assessment for provisions under which an operator was required to apply
for review of an order issued under section 814 of this title and under
which an investigation was made, hearings held, and information
presented.
Subsec. (b). Pub. L. 95-164 substituted provisions relating to the
steps to be taken following the failure of the operator to correct
violations, including provisions relating to temporary relief formerly
contained in subsec. (d), for provisions requiring the Secretary to make
findings of fact and to issue a written decision upon receiving the
report of an investigation.
Subsec. (c). Pub. L. 95-164 added subsec. (c). Former subsec. (c),
directing the Secretary to take action under this section as promptly as
possible, was incorporated into a part of par. (3).
Subsec. (d). Pub. L. 95-164 added subsec. (d). Former subsec. (d)
redesignated (b)(2).
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.
Section Referred to in Other Sections
This section is referred to in sections 814, 816, 820 of this title.
