The Mine Safety and Health Administration will reinstate prepenalty conference proceedings for disputed citations and orders. This pilot program will
The Mine Safety and Health Administration will reinstate prepenalty conference proceedings for disputed citations and orders. This pilot program will last 90 days and only be used in three MSHA areas: two coal (Kentucky and Pennsylvania) bituminous districts and in the Southeast (Birmingham, Ala.) Metal/Nonmetal district. Operators in other locations will still have to contest the proposed assessments in order to have a conference with their district office over possible modification or vacating of citations, reduction of their penalties or both.
This is no real shock, given that MSHA Assistant Secretary Joe Main pledged to Congress that resumption of prepenalty conferences was one of his solutions for reducing the contested citation caseload that has caused a 17,500-plus case backlog at the Federal Mine Safety and Health Review Commission. Main attributed the backlog to mine operators challenging citations primarily to stay off the agency's Pattern of Violations list or to avoid abatement. Moreover, the contest rate has risen from about 6% prior to the agency's April 2007 penalty hikes (spurred by the MINER Act of 2006) to a current rate of about 27%.
The vast majority of my aggregate-industry clients contest citations because they simply disagree with the allegations completely or dispute how they have been characterized, or because penalties could force them out of business ó and not because they have any POV exposure. Moreover, operators must abate alleged violations where contests are filed through the Notice of Contest process within 30 days after being cited, unless expedited proceedings are sought and the agency agrees to extend abatement deadlines until a hearing or ruling can occur on the substance of the agency's allegations.
Main did acknowledge, in principle, that the elimination of prepenalty conferences had upped the contested case numbers because the only method operators now have to discuss their concerns with MSHA is by putting the citations into litigation. In a prepared statement, Main said, ìBy resolving factual disputes before a violation in contested, these citations will not be added to the enormous backlog of cases that have bogged down the judicial system.î
The MSHA representative handling the conference is most likely one of the Conference and Litigation Representatives who previously handled them, and serves as MSHA's quasi-attorneys in the lower-dollar cases under the alternative case-resolution initiative. It would seem that they will only want to hear about what facts the inspector got wrong, and will not be receptive to discussing legal issues such as whether the standard applies in a particular situation or whether case law supports vacating or modifying a citation or order.
A BIG PROBLEM with the original conference process was that the CLRs were not sufficiently educated on the law nor independent enough to consider that the agency's inspectors out of their district might have misapplied a standard in a particular situation. Many MSHA standards are subjective by nature. And, new creative citations are being issued that call for heightened rails on scales that were not previously required, railings or fall protection on work platforms of mobile equipment, guards on return rollers that were never before mandated, etc. Given this, if only factual errors are considered, it is questionable whether bona fide disputes over the legitimacy of such applications or violation of operators' due process and fair notice rights will be given much weight during conferences.
Yet this is how MSHA's policy reads. And MSHA is not conferencing to determine whether the agency erred in citing the operator, but rather to see if the operator can offer any explanations in his defense to warrant reducing gravity or negligence. The operator also is only given 10 calendar days after citations or orders are issued to file a conference memo. Little surprise that so few citations ever got vacated back in the old days when prepenalty conferences were the norm.
Also, MSHA seems to think that if a conference is held, there will be no further contest of the citations or orders at issue. That is simply not correct, nor should holding a conference be found to compromise in any way the litigation rights of the mine operator. What if MSHA rejects the operator's argument? That doesn't mean a judge would rule the same way at an evidentiary hearing.
What if the parties agree on a citation, then the penalty comes in much higher than anticipated? Citations issued under the Rules to Live By standards (13 standards for metal/nonmetal) are specially assessed, as are (sometimes) citations linked to imminent danger orders, citations and orders issued as unwarrantable failures under Section 104(d) of the Mine Act, plus certain training orders issued under Section 104(g). Even if operators agree to accept a citation or order, they may change their mind once a mega-penalty is proposed.
Another inherent problem is the uneven playing field in these discussions. MSHA's Program Policy Manual specifically states: ìDuring the safety and health conference, the investigative file shall not be shown to the operator or agent, nor in any instance may the information contained in the file be released. The scope of the conference will not be whether a violation exists. Instead, the conference will focus on the facts and circumstances relating to the statutory criteria, and any facts in mitigation will be considered.î
MSHA WILL ASK operators to share their photos, statements, records, and other documents during conference, without reciprocating. So the operator will not be able to determine whether MSHA's photos are compelling evidence or not, will not be able to look at the inspector's field notes to see if they accurately reflect discussions (especially significant when high-negligence or unwarrantable allegations have been made) or if accurate measurements were taken. Field notes also offer insight into whether the inspector made gross assumptions about activities and whether he or she made any effort to validate these assumptions by interviewing management or miners. Without access to this information, which can be obtained in post-contest litigation through discovery, the operator is, in effect, bargaining with a blindfold on while MSHA gets to see all the evidence upfront.
But the biggest concern is the potential for MSHA to make the situation worse based on what the operator says in conference or produces as evidence. MSHA can liberally modify citations and orders after issuance, including making gravity and negligence higher, changing the section of the Act cited, and changing the section of the CLR that was allegedly violated.
IN A PREPENALTY conference, typically the citation has not yet been contested. The information that the mine operator submits can and will be used against him in a court of law. It is not privileged as a settlement negotiation under the rules of evidence. In a number of cases, the operator conferenced the case without counsel, and made explanations such as ìI knew the guard was off, but it was on my list of things to fix and would have been done this week.î The operator may think this is a dandy explanation. But to MSHA, this is evidence of a knowing violation and warrants raising a Section 104(a) citation to a Section 104(d) unwarrantable failure. And the conference memo becomes ìExhibit Aî in the Section 110(c) personal prosecution of the mine operator's representative who wrote the conference memo.
If a citation or order is already issued under Section 104(d), conference memos also can be used to raise the stakes from a civil to a criminal prosecution, if they are poorly worded. Anyone who is the target of personal proceedings based on what is written in a Section 104(d) citation/order should not be the one submitting a conference memo or participating personally in a teleconference or in person meeting, at least not without counsel present.
Finally, bear in mind that if the conference does not yield the desired results, it is still necessary to file a contest of the proposed penalty (which also serves to contest the underlying citation/order) within 30 days of when it was received. It is easy to think that the conference memo to MSHA serves to contest the citation: that is absolutely incorrect. Conference memos go to the district office; penalty contests go to MSHA's Office of Civil Penalty Compliance; and notices of contest and answers to MSHA Petitions for Assessment must be filed with the Federal Mine Safety and Health Review Commission. Filing the right papers in the wrong place could deprive you of your day in court and your ability to further resolve disputes with MSHA through the post-penalty litigation and settlement process.