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FMSHRC New Procedural Rules Raise Legal Complications


Two Final Rules Alter Filing and Litigation Procedures For Those Who Challenge MSHA Citations And Orders.

By Adele L. Abrams, Esq., CMSP

In the waning days of 2010, the Federal Mine Safety & Health Review Commission (FMSHRC) issued two final rules that alter filing, and litigation procedures for those who challenge MSHA citations and orders. The first rule, published in the Nov. 30, 2010, Federal Register, is fairly straightforward but does impose requirements that may pose difficulties for some small aggregate producers who are “technology-challenged.” This rule took effect on Dec. 30, 2010.

In a nutshell, the new “Penalty Settlement Procedure” adds two new requirements to existing procedures (which are codified at 29 CFR Part 2700). The rule mandates that, in all civil penalty proceedings, other than discrimination cases arising under Section 105(c) of the Mine Act, for which hard copies of any settlement Motions must be submitted without including a Proposed Order, a party who files a settlement Motion with the Commission must now include a Proposed Order along with the motion and must file the documents electronically.

Typically, such motions are filed by the MSHA Conference and Litigation Representative (CLR) or the attorney representing MSHA from the Office of the Solicitor, and it can be expected that they will automatically file the newly required order. However, mine operators should ensure that what gets filed with the FMSHRC does include a proper Proposed Order; otherwise, the Administrative Law Judge assigned to the case will reject it and this can delay resolution of the matter or even force it to proceed to trial.

Direct Impact
The electronic filing requirements may not have much direct impact, as long as MSHA’s representative is handling this, but in the occasional cases where MSHA’s CLR asks the mine operator to prepare and submit the Motion and Proposed Order, this requires signing the Motion, scanning it to a PDF and then submitting it to the FMSHRC electronically. However, the Proposed Order cannot be filed as a PDF and must be submitted as a regular “word” file so it can be edited, if needed, by the ALJ. In addition, parties can file non-electronically only with express permission from the judge, so those in rural area without good internet access may wish to avail themselves of this option.

The basic requirements for the content of Motions remain unchanged, but they must include the amount of the proposed penalty for each violation, the modified penalty amount (if applicable) and the facts that support the penalty agreed to by the parties. The information may be set forth in the Proposed Order, and simply incorporated by reference into the Motion.

Copies of the Motion and Proposed Order must be served expeditiously on the opposing party. The rule also, significantly, requires that the party filing the motion must represent to the Commission that the other party consents to the granting of the motion and the entry of the order approving settlement, but they do not have to certify that the other party actually reviewed and approved the Motion and Proposed Order. However, to avoid nasty surprises, the Motion/Order must be served on all parties at least five business days before the documents are submitted to the Commission.

Sample Forms
The FMSHRC has made sample forms for proposed orders approving settlement available on its website (www.fmshrc.gov), but these templates do not have to be used as long as all requisite information is included. The Commission makes it clear that it intends to have each proposed order stand alone as a description of the settlement and the reasons for any approval of the settlement, so simply stating the rationale in the motion will be grounds for rejecting the settlement.

The second, more-significant, procedural modification was published by the Commission on Dec. 28, 2010, and takes effect on March 1, 2011. Although it is deemed a final rule, the FMSHRC will still accept additional comment from the mining community through Jan. 12, 2011. This rulemaking has created what FMSHRC calls “Simplified Proceedings,” which alter discovery rights in a substantive manner and raise other novel legal issues. The rule was designed to help expedite hearings and deal with the massive 18,000-plus case backlog at the Commission.

If matters were not resolved through the simplified process, however, the mine operator would still be entitled to a full due process hearing.

After considering comments submitted by two law firms, the Secretary of Labor (on behalf of MSHA and the Solicitor’s office), the Industrial Minerals Association-North America, Public Citizen, one individual, and several mining companies, the FMSHRC has agreed to launch the simplified proceedings as a “pilot program” for a period of 9-12 months.

Key Question
The key question is what cases will be channeled to the “simplified proceedings track” and who makes that decision. The rule remains ambiguous on this point, and there are valid concerns that judges will be prone to trying to simplify cases that have complex issues, in order to fast-track the litigation. This could have adverse consequences for the mine operator who is precluded from conducting thorough discovery, which could reveal legal arguments to combat invalid citations.

The proposed rule had suggested that the simplified proceedings would be appropriate for cases that did not involve complex issues of law or fact, had a limited number of citations (number unspecified), and having an aggregate proposed penalty of no more than $15,000 per docket or $50,000 per proceeding (since multiple dockets are often consolidated because they arise from a single inspection but are assessed and docketed separately by MSHA). The proposal also specified that simplified cases could not involve citations or orders issued under sections 104(b), 104(d), 104(e), 105(c), 107(a), 110(b), 110(c) or 111 of the Mine Act – so, no unwarrantable failures, imminent danger cases, failure to abate actions, discrimination cases, or personal prosecutions could be involved. Other factors that would kick a case out of the fast track would be any fatality, injury or illness, as well as any cases with hearings that would take more than a single day.

The final rule clarifies that only Section 104(a) citations will be eligible for simplified proceedings, with no special assessments involved and no expert witness testimony needed, but it refrained from setting a maximum dollar value or trial duration, leaving that to the discretion of the Commission’s chief judge or his designee. In response to comments, the FMSHRC agreed that, prior to docketing, citations/orders for some cases should be grouped by inspection, and also by the issuing authorized representative. This will help the Commission to ascertain the potential dollar value and complexity of a case.

One of the troubling aspects of the final rule is that, while originally the Commission seemed to suggest that parties would have the flexibility to opt-in or out of the new process, now it has decided that the decision to opt-in should not be within the exclusive control of the parties. If a party disagrees with a simplified proceedings designation, however, they can file a motion to opt-out under 29 CFR 2700.104.

The Commission also will not let parties consensually opt-in for any type of case, although such mutual requests may be granted at the discretion of the ALJ. Moreover, the rule states that all requests to opt-in need not be consented to by the opposing party. This suggests that a case could be assigned to the simplified track, even over the mine operator’s objection. The rule does note that, if it becomes apparent that a case is not appropriate for the simplified proceedings, the ALJ can discontinue this upon his own motion or that of any party. However, such reclassification must occur at least 30 days before any scheduled hearing.

Exchange of Information
Another section of the rule, 29 CFR 2700.105, sets forth the “pre-hearing exchange of information” procedures. Within 45 days after a case is assigned to this track, each party must provide the other with copies of all documents, including electronically stored information and tangible things that would be used to support claims or defenses. This includes inspection notes, citation documentation, narratives, photos, drawings, preshift and onshift reports, training records, mine maps and witness statements. Obviously, if any documents are protected by attorney-client privilege or were prepared under the attorney work product doctrine, they could be withheld and listed on a privilege log. But no discovery requests would be needed or permitted to clarify the scope of the mandated production, and this may result in the mine operator having to produce potentially incriminating materials that are tangential to the case, and which could trigger additional citations. Moreover, there will be no real way to ascertain whether MSHA has fully produced all relevant or useful documents, and no way to sanction them if they fail to do so. Given this development, it probably makes sense to file a prompt Freedom of Information Act request with MSHA, as soon as possible after the inspection ends, if litigation is anticipated. This will help ensure that all non-privileged materials are available to the mine operator for its defense. The rule makes it clear that formal discovery – including depositions – is “generally prohibited” for simplified cases.

After documents are exchanged, the ALJ will hold a pre-hearing conference, to discuss settlement of the case, narrowing of issues, stipulations of fact and issues, defenses, witnesses and exhibits, any motions that might be needed (e.g., a motion in limine) and other pertinent matters. Some of the newer judges are already doing this and actually give a glimpse of how they regard the challenged citations and associated penalties (albeit without viewing any evidence or hearing any actual testimony). Given experience to date with these new types of pre-hearing conferences, it will be critical for the mine operator to review any information that MSHA produces promptly, do any necessary legal research quickly, and have its defense refined before the conference occurs, to avoid having the judge form a prematurely poor opinion of the defense’s litigation posture.

The rule does clarify that, because admissions made in the context of settlement negotiations are not intended to be admissible at trial, an ALJ assigned to a simplified case should not hear settlement discussions during the conference, and should only be privy to settlement efforts (but not the settlement contents).

It is debatable whether the simplified proceedings will actually diminish the backlog and improve adjudication of cases, since – at least in my view - discovery has not been the delaying factor and its elimination (especially depositions) may prevent the mine operator from discovering information that has often been key to getting MSHA to vacate or modify citations. Under the new rules, MSHA may fail to disclose voluntarily the identify of valuable witnesses (such as previous inspectors who had approved of the cited condition or practice), as well as supporting documentation from previous inspections (which can currently be obtained through either a FOIA or formal discovery). Moreover, there is nothing in the procedures that specifies any set timeline for actually proceeding to trial under the simplified rules.

The Commission has committed to studying the impact of the pilot program and reporting back to the mining community on its success or lack thereof, as well as being open to modifications down the road. The case backlog is frustrating for all concerned (even the lawyers!) and, at a minimum, recognition that MSHA must stop splitting up inspections into multiple dockets and more aggressive consolidation of such cases will be a good first step.

In a ruling that comes as welcome news for California aggregates producers, the California Air Resources Board approved a four-year reprieve for its off-road diesel emissions rule, admitting that a down economy and unreliable science contributed to previous data.

The revised rule approved by the California Air Resources Board delays its emissions standards for off-road diesel equipment until 2014, eases the annual burden employers have to bear, and gives contractors greater flexibility in determining how to comply. The revised rule also gives contractors and producers credit for the efforts they have already made to reduce emissions and rewards contractors for voluntarily reducing emissions before 2014. However, the final rule still lowers emissions below the levels that the Board originally sought to achieve when it first proposed its off-road diesel emissions rule in 2007.

“The Board’s decision to approve the revised off-road diesel emissions rules gives hope to thousands of construction workers fearful for their job security while safeguarding California's air quality,” said Michael Kennedy, general counsel of the Associated General Contractors of America. “Board members have demonstrated real wisdom and courage in acknowledging significant errors in their original estimates of emissions from construction and other off-road diesel equipment. The revisions approved today reflect a strong commitment to setting standards based on sound science and reliable data. More importantly, the revisions allow hard-hit construction firms the time and flexibility needed to modernize their diesel equipment in a way that actually delivers meaningful environmental benefits to the state’s residents. That is because the measure’s new timeline allows contractors to modernize their fleets with more efficient equipment coming on line in the next few years.

“Yet even as this new rule provides significant relief for a state-wide construction industry that has lost nearly 50,000 jobs during the last year alone, it also delivers greater environmental benefits than the original version of the rule,” he continued. “In other words, California officials have demonstrated that improving the environment and supporting robust economic growth do not have to be mutually exclusive.”

Feds Act on Diesel Emissions
The passage of the Diesel Emissions Reduction Act (DERA) by the U.S. Senate Environment and Public Works Committee (EPW) was hailed as a major step in continuing “a vital clean air program that has benefited communities in every single state in the nation,” according to Allen Schaeffer, executive director of the Diesel Technology Forum (DTF).

DERA (S. 3973) is a five-year reauthorization of the highly-successful program created in 2005 to establish voluntary national and state-level grant and loan programs to reduce diesel emissions by upgrading and modernizing older diesel engines and equipment. The bipartisan legislation was introduced by Senators George Voinovich (R-OH) and Tom Carper (D-DE) and cosponsored by several of their colleagues including EPW Chair Barbara Boxer (D-CA) and Ranking Member James Inhofe (R-OK).

“DERA has helped clean up tens of thousands of diesel engines. It’s been incredibly cost-effective—EPA estimates that every federal dollar invested in DERA translates into at least 13 dollars in health benefits. This cost effectiveness is actually higher thanks to state and local matches that stretch the federal DERA dollars. DERA funds also support new and existing jobs in clean diesel manufacturing, as well as local jobs in installing and maintaining the new diesel technologies.

“While it’s been difficult lately to find environmental issues that have near-universal bipartisan support among Democrats and Republicans, DERA has proven to be one program to do so,” Schaeffer continued. “In addition, a unique and diverse coalition of more than 500 environmental, health, industry are actively working for DERA’s reauthorization.” 

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .