In 2008, MSHA issued a Procedure Instruction Letter (PIL) emphasizing the “broad discretion” of the district manager to limit the number and scope of conferences granted. The PIL effectively restricted informal conferences to citations/orders alleging unwarrantable failure or high negligence. District managers embraced the directive and began denying conferences for any citation or order that fell outside these parameters. Without the ability to challenge the least serious violations informally, operators have only two options—invoke the formal contest proceedings afforded them under the Mine Act or accept poorly written, factually inaccurate, and/or unjustified citations.
In 2009, MSHA urged the postponement of conferences until after penalties were proposed and contested. Under this procedure, operators still had to request an informal conference within 10 days of receipt of the citation. Following a conference request, MSHA informed operators it would not schedule a conference until after it issued a proposed assessment and if the proposed penalty was not timely contested, no conference would take place. This change in course drastically undercut the efficacy and usefulness of informal conferences.
Under this post-assessment regime, operators had to submit a contest (initiating formal contest proceedings) in order to preserve their right to an informal conference. Under Section 110(k) of the Mine Act, once a proposed penalty is contested, it cannot be “compromised, mitigated, or settled” without approval of the commission. Accordingly, the commission must approve compromises reached as part of a post-assessment informal conference—a process that can take months. Recently, operators and MSHA have seen an increasing demand from commission Administrative Law Judges to provide more information before a settlement will be approved, a process that results in further delay.
In an effort to reduce the backlog of cases before the commission, MSHA Assistant Secretary Joseph Main proposed a return to pre-assessment conferencing procedures. In August 2010, MSHA initiated a pilot program in select districts aimed at “early resolution of concerns to prevent the need to contest citations and orders that would add to the backlog; and, to increase accuracy and consistency in citation and order writing by creating a feedback loop so that all parties could learn from the process.” Following an analysis of the pilot programs, MSHA announced its intention to “begin implementing pre-assessment conferencing procedures” starting in January 2012.
So, what does that mean for operators? Depending on what district they are in, maybe not much. The announcement explains, “[e]ach MSHA district must determine when to implement the procedures based on available resources. Implementation may occur slowly or not at all in some districts…” Operators wishing to take advantage of pre-assessment procedures need to determine how and whether pre-assessment conferencing will occur in their district.
There are important considerations to keep in mind for informal conference success.
- District managers have broad discretion to deny conferences. Operators that do not comply with the minimal requirements for requesting an informal conference make it easy for MSHA to deny requests out of hand.
- Pre-assessment conferences are usually conducted by Conference and Litigation Representatives (CLRs) or Field Office Supervisors (FOSs). Neither CLRs nor FOSs are attorneys and they are directed not to entertain legal arguments as part of an informal conference. Operators that have strong, fact-based arguments have the best chance for success in an informal conference. Those arguments should be set out in the informal conference request.
- In preparing their conference requests, operators need to strike a careful balance between presenting a detailed, compelling argument and not making admissions that could later be harmful if the citation or order proceeds to a hearing.
- Operators are relatively successful in informal conferences. The pilot program analysis revealed that conferences resulted in 35% of the conferenced citations/orders being vacated or modified. The fact that MSHA was willing to revise its inspectors’ initial findings in nearly one third of the cases shows some level of recognition that citations contain errors. Operators that display a thorough understanding of the facts and can point to errors contained in citations hold the key to a successful conference.
While one certainly hopes that MSHA is committed to making the “new” pre-assessment conference process a success, several indicators point to this as MSHA’s latest failed initiative. Pre-assessment conferences were supposed to lend consistency to the process. However, allowing individual districts to implement pre-assessment conferences on their own schedules, if at all, cannot possibly achieve consistency.
Additionally, a return to pre-assessment conferences does not get to the root of the backlog problem. If all citations and orders written were factually accurate and made appropriate findings regarding gravity and negligence, there would be very little for operators to challenge—informally or otherwise. However, this is not the case. There is a fundamental lack of accountability on the part of inspectors writing bad paper that is not being addressed. There is seemingly no mechanism by which inspectors are held accountable for mistakes that are made as part of their inspection and then corrected through informal conferences (or through formal litigation) at the considerable expense and effort of the operator. Until consistency and accountability are injected into the process, there will continue to be a backlog.
Fulton is an associate with Patton Boggs LLP. She can be reached at 303-894-6121 or at firstname.lastname@example.org.