March 30, 2009
MSHA RELEASES OFFICIAL POLICY ON SCHEDULING SAFETY AND HEALTH CONFERENCES
Volume 5, Number 6, March 30, 2009 ©2009 Jackson Kelly PLLC
After a lengthy period of confusion regarding the way MSHA was handling safety and health conferences, the mining industry can finally rely on some official policy guidance. On March 27, 2009, MSHA issued Procedure Instruction Letter (“PIL”) No. I09-III-03 and Program Information Bulletin (“PIB”) No. P09-05 announcing changes in safety and health conferences held pursuant to 30 C.F.R. § 100.6. This March 2009 PIL supersedes PIL No. I08-III-01 released in February 2008. (See Update on MSHA’s Ever-Evolving Safety and Health Conference Process).
Pursuant to this new policy guidance, MSHA has clarified that it will begin holding “settlement conferences” (safety and health conferences) between mine operators and MSHA personnel (Conference and Litigation Representatives or “CLRs”) under 30 C.F.R. § 100.6 after civil penalties have been proposed and timely contested. MSHA is still requiring that requests for safety and health conferences be in writing and include a brief statement of the reason why each citation or order should be conferenced. Failure to provide the brief written statement is a basis for denying a conference request. A request for a safety and health conference will continue to be granted at the discretion of the District Manager or his designee. If granted, the conference will be scheduled in most cases after the civil penalties have been proposed and MSHA has received a timely notice of contest. The failure to timely contest the proposed penalties generally will result in the conference being cancelled.
Once a conference request is granted, the CLR assigned to the matter will notify the operator and miners’ representative of the time and location to discuss all contested violations and associated penalties. The CLR will file a letter with the Federal Mine Safety and Health Review Commission (“Review Commission”) requesting a 90-day extension of time from the original due date for filing a petition for the assessment of civil penalty in the case. In a conference, the CLR “shall make all reasonable attempts to settle the subject violations and/or associated civil penalties in accordance with Part 100 criteria and MSHA guidelines.” If a settlement is reached as a result of this conference, the CLR will file a Petition for Assessment of Civil Penalty and a Motion for Decision and Order Approving Settlement with the Review Commission.
According to MSHA, in some cases, the conference may be held before the notice of proposed penalties is issued. MSHA CLRs, in consultation with the appropriate Regional Solicitors or Solicitors with the Mine Safety and Health Division, may choose to conduct pre-penalty safety and health conferences involving potential Pattern of Violation (“POV”) orders, S&S citations issued during a POV assessment period, statutory violations, flagrant violations, and accident-related violations. It is important to note that participation in a conference does not waive any rights to a hearing before the Review Commission.
It remains unclear which types of matters will continue to be handled by the CLR and which will be forwarded to the Office of the Solicitor, in the event that settlement is not reached.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
(303) 390-0008
For more information, contact:
| Laura E. Beverage Karen L. Johnston | R. Henry Moore | Julia K. Shreve Michael T. Cimino |
| (303) 390-0003 | (412) 434-8801 | (304) 340-1000 |
The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.
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Every mine operator is keenly aware of the Mine Safety and Health Administration’s (MSHA) authority during mine inspections. And since citations and orders issued by MSHA during inspections invariably result in civil penalties, most operators have become familiar, at least to a certain extent, with procedures to contest civil penalties. But contesting civil penalties can be a most unsatisfactory way to seek legal relief for something that is a problem now.
First, we need to define terms. There are two terms that are often confused in the industry: conference and contest. There is a big difference between requesting a conference and filing a contest -- or more properly -- a notice of contest. Here are the procedures available for challenging or otherwise seeking relief from any aspect of a citation or order issued during an MSHA inspection.
Informally requesting relief
There are three basic ways a company may informally attempt to resolve issues regarding citations and orders directly with MSHA without involving any legal process.
• A company can ask an inspector to not issue a citation in light of additional information a company may be able to provide.
• A company can ask an inspector to reconsider a citation or any finding within a citation at anytime during the inspection, up to and including the close-out conference the inspector holds at the end of the inspection.
• A company may request a post-inspection conference with the MSHA district manager or designee pursuant to regulations at 30 CFR 100.6 (procedures for review of citations and orders; procedures for assessment of civil penalties and conferences).
It is important to remember when proceeding informally that:
• The inspector retains discretion during an inspection. By law, citations may be issued based on an inspector’s belief that a violation exists.
• A post-inspection conference is also purely a matter of discretion. In the words of the regulation: “It is within the sole discretion of MSHA to grant a request for a conference and to determine the nature of the conference.”
• In neither case is there any legal review of the procedure or the decision-making process.
Formally contesting citations
A company is not without recourse if an inspector is unresponsive or if the company is doubtful that an informal conference request will produce the result sought. The Mine Safety Act contains a specific procedure for appealing citations and orders to a separate authority as soon as they are issued -- but no later than 30 days from issuance.
The law states: “If, within 30 days of receipt … an operator … notifies … that he intends to contest the issuance or modification of an order … or citation … or the reasonableness of the length of abatement time … the Secretary [of Labor] shall immediately notify the Federal Mine Safety and Health Review Commission [which is basically the administrative court for the trial and appeal of mine safety cases].”
There are specific procedures that must be followed from beginning to end in these formal cases. Rules of the Review Commission spell out these procedures. Once properly contested, the case will be assigned to an administrative law judge who will set a trial date unless the parties are able to settle the case.
In a notice of contest, an operator may seek to have a citation or order vacated. The operator may also challenge findings, including those that characterize a violation as “significant and substantial” or “due to unwarrantable failure.” As indicated, the reasonableness of abatement time set by an inspector may also be contested.
Words of caution
The pre-penalty notice of contest proceeding is an important option for operators, but the process should not be entered into lightly. It is especially important to observe time limits. Many operators have been disappointed to learn that requesting an informal conference from MSHA does not extend the time for filing a notice of contest.
A company may wish to try to obtain informal relief before entering into a formal process. The company has 10 days to request an informal contest. If MSHA grants a conference request, the conference may not be convened before the expiration of 20 more days. If the operator is not satisfied with MSHA’s response given more than 30 days after the original citation date, the operator will not be able to proceed with a notice of contest unless the contest was already filed before the expiration of the 30-day deadline.
If the deadline is missed, the company will not be completely out of court. The company will have an opportunity to litigate formally after MSHA issues a notice of proposed civil penalty, but often that will be far too late to resolve critical issues such as whether the company has been given sufficient time to abate the cited condition or whether the company should have been required to abate at all.
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