You Can Challenge MSHA Citations Without an Attorney, But How Do You Represent Yourself Successfully?
By Donna Pryor
Picture this. Your mine gets an MSHA citation you do not agree with for a variety a reasons – it’s not a violation of the standard, there is not a hazard, the negligence is too high, it should not be fatal, it should only have one person affected, it should not be S&S – the list goes on. The problem is, it’s been assessed at $200 and you cannot justify hiring counsel to defend the company for a citation with such a small penalty.
Many operators feel they do not have the resources or the knowledge to defend the company in this situation. Here’s a recent story that might inspire you. Buzzi Unicem USA operates a small limestone pit in Tennessee. Early one March morning an MSHA inspector arrived and issued a citation for failing to maintain sufficient illumination in the area where the barges are docked. The Secretary sought a penalty of $100 for the alleged violation.
The company’s safety and health manager decided to contest the citation and represent the company himself. An attorney from the U.S. Department of Labor’s Office of the Solicitor represented MSHA. At the request of the parties, the court held a telephonic hearing where the parties called witnesses to testify and presented evidence.
Buzzi Unicem presented strong evidence to support their case: the employees wore cap lamps at night, the barge docketing area had lights (though some were taken out because the lights caused a blinding effect when miners were on the barges), and the inspector never measured the level of the illumination without the lights.
The court found that MSHA failed to present enough reliable, objective evidence to establish that the lighting was actually insufficient and vacated the citation: “The Secretary relies solely on the evidence from Inspector White, but White’s testimony bears indicia of unreliability which diminish the weight of his opinions regarding the nature and sufficiency of the lighting in the cited area.”
Represent Your Company Successfully
First, be organized. Create a binder or file with all of your documents that includes the citation(s) at issue, the standards at issue, the evidence you have collected (photos, work orders, witness statements, workplace exams, SOPs, manuals, anything relevant to the citation and your argument). Keep everything related to your case, good or bad. Parties are obligated to act professionally and ethically and cannot destroy evidence or documents relevant to the case.
Next, assess your case. Read the applicable standard. Then read it again. Does the citation really allege a violation of the standard? Talk with your potential witnesses. Do they remember anything? Do they have good or bad facts to share? Be honest with yourself about whether your case has merit and whether the citation should be contested. It’s easy to get emotionally caught up in contesting a citation, but be sure your case is strong before you decide to devote your time and energy into the case.
Next, talk settlement. Either conference the citation or if your request for a conference gets rejected, organize your documents and get ready to discuss settlement once the case is assigned to an attorney or a CLR later (after you contest the penalty).
If, after you’ve had a good look at your facts and the standard, you still feel strongly that the citation either should be vacated or modified, check the boxes on your penalty assessment and get to work. You will have to file an “Answer” to the Petition for Assessment of Penalty when you receive it. The Petition is essentially the same thing as a “Complaint” in a regular court action. After the Answer is filed, the parties can conduct informal (or formal) discovery and exchange documents.
Be sure to ask the MSHA representative for the inspector’s notes and photos. At any time during this process you can engage in settlement discussions to try and resolve the matter short of hearing. In fact, the judge will likely require the parties engage in settlement discussions and will ask the parties to report back on their progress before setting the case for hearing.
Set for Hearing
Once the case is set for hearing, outline your arguments for court. List what points you are going to make at hearing and then list which witnesses and documents you need to make those points. Be sure to use MSHA’s website as a resource.
If you are challenging the gravity of a citation be sure to look at MSHA’s Citation and Order Writing Handbook for Coal Mines and Metal and Nonmetal Mines, available on their site. This will help you flesh out arguments about what it means for a citation to be high negligence or S&S. Also, be sure to look at MSHA’s Program Policy Manual for more information about the particular standard you are challenging.
There might also be helpful information in Program Policy Bulletins, Procedure Instruction Letters, or on the Data Retrieval System. Case law can be found on the Federal Mine Safety Health Review Commission website at www.fmshrc.gov. There is a search tool on the website. Look for cases involving similar standards at issue in your case under either Part 56 or 57.
Write as much in advance as you can. Are you calling two witnesses? Write down the questions for each. Also write down questions you would like to ask the inspector. The judge might also give you a minute or two to make an opening or closing argument. Prepare both just in case.
Last, be confident. Public speaking can be tricky for some. Take a few practice runs with a team member in your office listening in so you can practice asking your witnesses questions and making your opening and closing arguments. The judge will likely have patience with a pro se operator, but just in case they do not, go in prepared and ready to perform.
Managing your case can be as simple or as complicated as you’d like. Of course, you have options to serve written discovery or take depositions, or do more in-depth research, but your case might not require that level of work. There is no need to complicate a simple matter. Just be organized, be professional, set your best foot forward, and get it done. Of course, if you need help, you can always try to get a bit of advice from an attorney. Good luck!