As of July 31, MSHA claims to have a solution to this recurring issue: a proposal in the Federal Register of 30 CFR Part 100 to overhaul the penalty assessment process. MSHA insists that it will improve the regular civil penalty assessment regulation by simplifying the criteria and providing a more streamlined approach to assessments. The belief is also that operators’ contest of penalties will decline. The agency’s hope is for a more consistent, objective and efficient enforcement mechanism with an emphasis on what are deemed to be more serious safety and health conditions for miners.
As was the case following the 2007 modifications, there is bound to be an increase in litigation if change occurs again. While MSHA is adamant the proposed changes will not significantly affect the majority of operators, the minimum fines for unwarrantable failure violations alone can increase by approximately 50%. And this is not the only change that will come about. Penalties for what is now “moderate negligence” will also be increased by approximately 50%. On top of that, there is no mention of any indirect effects. Although it is obvious that MSHA’s plans to change the citation form (Form 7000-3) will have some influence on the special assessments process as well, the exact impact is not addressed whatsoever. What this means for those penalties, only time will tell.
In the event that the new rule is implemented, the current categories of history of previous violations, negligence and gravity categories would be modified greatly. MSHA’s proposal would reduce the overall penalty points for mine size and controlling entity, but the largest operators are treated relatively better under the proposed rule than they are now. However, the weight for history of violations would also see an increase. This could prove costly in the long run unless operators are more aggressive about challenging citations – exactly the opposite effect MSHA intends to accomplish.
The gravity and negligence categories would also see significant changes. The proposal would result in the reduction of what are currently five categories of negligence to three: Not Negligent; Negligent; and Reckless Disregard. Although MSHA believes otherwise, this essentially “all or nothing” manner of assessment could potentially draw disagreements between parties because there will no longer be any way to consider the mitigating factors that once served pivotal in determining negligence. These concerns are echoed regarding the proposed changes to the gravity criteria. MSHA’s proposal would maintain the current three gravity factors, but the subcategories within these sections would be reduced greatly, likely resulting in increased penalties for operators where the new emphasis on “serious” violations will naturally influence inspectors’ designations, which then drives assessment amounts.
Also on the table is the operator’s incentive for the abatement of violations. Today, mine operators have the opportunity to abate violations and, in turn, receive a 10% good faith reduction. This proposal would maintain the good faith reduction, but also provide an additional 20% reduction for operators who forego contesting citations and pay the resulting fine within 30 days. Although MSHA seems to claim that the added incentive will lead to quicker abatement, we all know that abatement of violations has nothing to do with whether the citation is contested or not.
MSHA also seeks to curtail the Federal Mine Safety and Health Review Commission’s role in providing an independent review of its actions. As it currently stands, operators are given 30 days to contest a citation. When contested, absent an agreement reached via settlement, the matter is heard before an administrative law judge (ALJ) who is at liberty to review the citation and issue a penalty based on their own findings. This is absent confinement to the assessment criteria that MSHA uses in the initial assessment process. The proposal seeks to change that process altogether. MSHA claims that the current framework allows for inconsistencies between the ALJ rulings and the agency’s process, and undermines the agency’s efforts to achieve evenhanded and predictable treatment among violations. The proposed rule would provide a set of rules and methods to “guide” the commission, resulting in their being confined to Part 100 in their assessment of penalties under most circumstances. Along with the fact that Congress fully intended for the commission to serve as an independent body, coaxing ALJ’s into making decisions based on MSHA’s proposed measures raises a host of other concerns for operators’ ability to achieve fair results at hearing.
All in all, while it appears that MSHA professes to be focusing on a reduction of points for many, efforts in assessing the true effects that these changes could have on the amount of citations appears to be lacking. The proposed rule even indicates that much of the research that MSHA relied upon in reaching these conclusions was based on general assumptions made by the agency. So, here’s where you come in. Without comment, the rule will surely be adopted as written. MSHA is accepting comments until the end of November. Ask them to reveal the basis for their conclusions. Let them have the benefit of both your observations and your comments.
Breyana A. Penn is an associate in the Denver office of Jackson Lewis PC. Penn is a member of the Workplace Safety and Health practice group representing clients on an array of administrative, regulatory and public policy issues, including clients in MSHA, OSHA and other safety agency investigations and enforcement actions.