Litigation between the Mine Safety and Health Administration and the mine operators and contractors that MSHA regulates is on an upswing. In all of FY07, there were 2,488 new cases filed with the Federal Mine Safety & Health Review Commission; in FY08 (October 1 to June 1, 2008), there were already 6,251 new cases initiated. In March and April 2008, several weeks registered more than 300 new cases per week! It appears that about 90% of the new cases are “penalty cases” while only 10% are “contest” cases. This is because the Commission is now automatically staying most contested cases until the penalties are assessed and the proceedings can be consolidated to avoid two separate hearings. But there are situations, explained below, where hearings can still be obtained prior to the issuance of MSHA proposed penalties.

DUE PROCESS

This column is intended to clarify the process for mine operators and contractors who believe they have received “bogus” citations or orders, or think the proposed penalties are out of whack with the alleged violations. Of course, specific situations may warrant additional legal remedies or actions and counsel should always be consulted in those unique matters.

The first step is when the citation/order is issued; it is usually presented to the operator at the “Closeout Conference.” MSHA often states that this is an opportunity to seek changes but, in practice, the mine inspector often will resist any changes or lack authority to make modifications … other than to increase the negligence if the operator makes any admissions against interest. Everything said at the closeout conference is “on the record” and can be used to change a regular citation to an “unwarrantable failure” if the operator's representative admits prior awareness of the alleged violation or states that he has engaged in the same cited behavior. The best use of the Closeout Conference is to get changes made to abatement deadlines or requirements, if the operator believes they are unreasonable or not feasible.

INFORMAL CONFERENCES

The second “bite at the apple” is the informal conference, often conducted by telephone between a mine operator's representative, the union rep (if any) and MSHA's Conference and Litigation Representative (CLR) or — increasingly — field office personnel, because the CLRs are bogged down due to the number of cases assigned to them. The informal conference historically served as an opportunity for MSHA to explain why the citation or order was issued and for the operator to explain mitigating circumstances. On Feb. 4, 2008, however, MSHA issued Procedure Instruction Letter NO. I08-III-1, which imposed new limitations on the informal conferences and restricted them — at the District Manager's discretion — to those citations and orders involving high negligence or unwarrantable failure (flagrant) allegations.

Safety and health informal conference rights were codified at 30 CFR 100.6, but MSHA has maintained that the Procedure Instruction Letter did not constitute improper rulemaking by eliminating conferences for “low” or “moderate” negligence citations, despite protests from the National Stone, Sand & Gravel Association and other trade groups. Part 100.6 also specifies that the requests for conference must be made in writing within 10 days of receiving the citation/order, and provide the operator's basis for challenging the alleged violation. Again, everything submitted in a conference request is “on the record” and can be used to make a citation more serious (increase the negligence) as well as to provide relief.

Moreover, the person submitting the conference request will be considered the operator's agent and could be subject to personal prosecution if the information he provides results in changing a citation to an “unwarrantable failure” classification. Despite this exposure, conferencing citations still can bring some relief and may well resolve matters entirely; so it should not be ignored. Operators should, however, exercise caution in terms of what they admit to when writing their requests or providing information during the conference itself.

Because of the volume of conference requests, many are not scheduled within the 30-calendar-day timeframe for filing a formal Notice of Contest. As noted above, most contest cases are now stayed until the penalties are assessed, but there are a few situations that warrant using this “bite” at the apple to get a hearing prior to proposal of penalties.

They are: (1) where abatement is being disputed because of its cost, infeasibility or being unnecessary due to a serious dispute over the citation; (2) where the operator disputes MSHA jurisdiction (e.g., where MSHA tries to inspect an asphalt plant, ready-mix operation, off-site shop, sales yard or borrow pit); (3) where an imminent danger order has been issued (since there is no penalty associated with it, a Notice of Contest must be filed to dispute the “highly likely” allegations of gravity that can carry much higher penalties for the related citation); or (4) where a flagrant violation has been issued and the operator wants to get this addressed quickly by a judge, to avoid exposure to criminal prosecution or civil special investigations.

Many judges, and the Solicitor's Office, will still seek to stay the proceedings. However, if the operator can show prejudice through delay (e.g., necessary witnesses who might die or retire before the penalties can be assessed), exposure to additional inspections despite a lack of jurisdiction, etc., the judge may grant expedited proceedings. If a hearing really is desired, the operator should file a Notice of Contest with the Commission within the 30-day statute of limitations, even if a conference request is pending, because the conference request is filed with MSHA and does not toll the statute of limitations for Commission proceedings.

If relief is not obtained through the conference process or citations could not be conferenced at all because they were of “low” or “moderate” negligence, and a Notice of Contest has been stayed or was never filed, the final bite at the apple is through contesting the proposed assessments. MSHA will issue these (delivered these days by Federal Express) and the operator has 30 calendar days to check off the citation(s)/orders(s) it wishes to dispute and to return the form to MSHA's Civil Penalty Assessment Office at its Arlington, Va., headquarters. The form should not be sent to the St. Louis address (where payments are processed). I recommend sending the penalty contests via both fax and Certified Mail so the operator will have proof that it was received in a timely manner. Checking off a citation/order for contest (or checking the “all” box) allows the operator to dispute the amount of penalty, fact of violation, negligence and gravity. There is no need to explain your position at this point.