According to Mary Lu Jordan, the chair of the commission, the average time it takes to dispose of a case has increased over the last three years, from 178 days to 401 days this year. There are currently approximately 16,000 cases before the commission with at least $195 million in outstanding fines. In 2006, this backlog was only 2,100 cases.
According to data provided by the commission, if current trends and funding for the agency remain the same, the backlog would dramatically increase to 47,000 cases by 2020. Last year, Congress approved funding for an additional four judges at the commission. In this year’s budget proposal, the Obama administration requested four more. According to data provided by the commission, 22 to 26 judges would be needed to significantly reduce the backlog of cases.
Today, mine operators are contesting two-thirds of all fines. Some of the largest mine owners are challenging nearly every Mine Safety and Health Administration (MSHA) citation. “It is important that we remove the incentive for operators with significant and substantial safety violations at their mine to contest violations simply to delay enforcement,” said Joseph Main, Assistant Secretary of Labor for Mine Safety and Health. “Delay in addressing [significant and substantial] hazardous conditions puts miners at risk, is at odds with the purpose of the Mine Act and mission of MSHA, and is unacceptable.”
“The issue here is not safety,” said National Mining Association Senior Vice President for Regulatory Affairs Bruce Watzman. “Operators are required by law to abate any safety citation in a reasonable time set by the inspector irrespective of the merits of the citation or a decision to contest it. A challenge in no way relieves the operator’s obligation to abate the condition that gave rise to the citation.”
Watzman suggested the current backlog of citation cases could be reduced or eliminated administratively by improving training for mine safety inspectors, reinstating an informal review process, requiring decisions in the dispute process to be used as training tools for more effective safety evaluations, and providing more realistic timeframes for operators to decide whether to accept or contest a citation.
“Recent administrative actions created an irrational process that increased the number of citations at the same time it
eliminated an informal procedure for contesting them,” Watzman said. “It has forced operators into a time-consuming, expensive adjudicatory process that does nothing to increase mine safety.”
Until February 2008, MSHA held informal conferences prior to the assessment of the civil penalty. Once the conferences were concluded, MSHA’s Office of Assessments would assign a penalty, taking into consideration any revisions MSHA enforcement personnel made to the evaluation of the violation. This conferencing process resulted in the mine operator filing no penalty contest if they were satisfied with the results of the conference. In March 2009, MSHA implemented the Enhanced Safety and Health Conference, which was designed to reinstate early conferences to settle cases but still delayed conferencing until after a civil penalty was proposed and formally contested by the mine operator. This significantly added to the commission’s caseload because proposed penalties that are formally contested, even if settled, must proceed through the commission process and be reviewed and approved by an administrative law judge.
Watzman cited MSHA’s praise for the informal process it eliminated in 2008. The agency acknowledged the conferences led to less formal litigation, improved relations between MSHA and the mining community and allowed regulators and mine operators to share information on acceptable compliance practices. Under this system, said Watzman, operators and inspectors mutually benefited from an efficient means of addressing disputed citations. Fees were set for less serious infractions and were seldom appealed in a more formal, quasi-judicial dispute settlement process.
Watzman said citations are often based on highly subjective criteria imposed by inspectors who may lack sufficient training and experience. Moreover, because the current system does not allow inspectors to learn the reasons why citations were subsequently ruled invalid, they repeatedly cite mines for identical or similar violations. He summarized that the current backlog of cases is the consequence of a series of administrative changes in procedures and redeployment of regulatory personnel rather than an indicator of mine safety performance.
Any system of reforms will have to result in fewer cases entering the contest system, Main said. “MSHA does not believe that litigating our way out of this backlog is the best long-term solution,” Main said. “Among the most important reforms, MSHA is considering how we might implement operator or corporate-wide holistic settlements to reduce the backlog. A review of cases currently pending before the commission shows that 10 corporations and the companies within their control account for 39% of all contested violations currently in the backlog.”