By Christa Lee Rock
How time flies. Just over a year ago, my colleague, Mark Savit, appeared on these pages to inform the mining public of new changes to conference procedures at the Mine Safety and Health Administration (MSHA). Conference procedures afford operators a chance to sit down at the same table with MSHA to discuss citations and orders early in the process. The goal is to avoid litigation—which is costly for both sides—so that both MSHA and the operators can get back to focusing on safety.
Last year, the big change in conference procedures came in the form of an MSHA edict declaring that conferences would be reserved only for citations alleging high negligence or unwarrantable failure (Section 104(d) citations or orders). This year, access to the conference process has been expanded, but the timing has been deferred. Now, all conferences will take place only after “civil penalties are proposed and timely contested.” (Program Information Bulletin No. P03-05, Issued March 27, 2009) This means that an operator looking to avoid litigation through the conference procedures must do all of the following: contest the citation, file a written request for a conference within 10 days, wait (usually four to six weeks), receive the proposed penalty assessment, contest the penalty, and then have a conference within 90 days. Whew. That’s a pretty far hike up the hill toward litigation for a procedure intended to avoid litigation.
To its credit, MSHA has some good reasons for deferring conferences until after penalties have been assessed. After all, mining is a business. Operators want to know how much money is on the table before they start racking up legal fees to litigate citations. The combined discussion also allows the parties to “have more meaningful conference and to resolve contested violations and their associated civil penalties at the same time.” (PIB No. P03-05) More importantly, it gives the parties time to work things out. The new procedure spares operators the expense of having to file a formal answer to the petition for assessment of a civil penalty because, once conference procedures have been initiated, the Conference and Litigation Representative (CLR) gets a 90-day extension of time to file the petition. Everyone gets a reprieve.
What’s more, the new procedures also allow some flexibility on the most hotly contested issues or those that operators need to resolve most quickly, such as Pattern of Violation (POV) orders. CLRs now have discretion to conduct “pre-penalty safety and health conferences” involving POVs, Significant and Substantial (S&S) citations issued during a POV program assessment period, statutory violations, flagrant violations, and accident-related violations. However, we have already had a case involving a non-S&S citation that appears to be clearly erroneous on its facts, but which would require a very difficult, if not impossible, abatement. When the operator explained this to the CLR and asked for a conference, he was summarily referred to the new procedure. Waiting for the penalty to be issued would have taken him long past the abatement date and now requires that the operator take legal action to formally contest the citation. These are actions and expenses that could have been avoided if the conference could be held right after the citation was issued.
But there’s also an unseemly side to the new procedures. MSHA candidly admits that the changes resulted, in part, from the overwhelming new push for mining enforcement since passage of the MINER Act of 2006. MSHA has simply been giving out more citations than it can handle. Between 2005 and 2008, the number of citations contested annually has increased from 7,000 to more than 42,000. That means fewer CLRs are available to settle citations, or at least break up the bigger fights before they enter the barroom brawl of litigation. A greater number of citations are being funneled through an ever-narrowing mediation process.
As a result, more and more operators with worthy grounds for challenging or settling citations may be tempted just to write a check to MSHA to avoid the hassle. Others will write the check to their lawyers. Still more will be booted from consideration for the conference procedures because they mi