March 1, 2009
MSHA’s informal conference process may be undergoing another evolution.
by Peter S. Gould
To readers who are frustrated by the Mine Safety and Health Administration’s (MSHA) ever-changing informal conference process, you are not alone. We have written on the informal conference process in the past, however, recent changes in MSHA policy make an update on this subject timely.
By way of background, MSHA and the Office of the Solicitor of Labor instituted the informal conference process 15 years ago as a response to a growing number of operators who formally contested citations and orders before Federal Mine Safety and Health Review Commission Administrative Law Judges (ALJs). In doing so, the Department of Labor effectively codified and institutionalized the growing practice among operators of informally meeting with MSHA staff to resolve MSHA enforcement actions without the oversight of an ALJ by creating the Alternative Case Resolution Initiative (ACRI) and the MSHA Conference/Litigation Representative (CLR) position.
The informal conference request process is set out in 30 C.F.R. § 100.6. The regulation requires MSHA to afford aggrieved parties the opportunity to review with MSHA each citation and order issued during an inspection. The regulation incongruously cautions, however, that MSHA has the sole discretion to “grant a request for a conference and to determine the nature of the conference.”
Conference requests must be made in writing and include reasons why the citations or orders merit a conference.
All operators have 10 days within which to submit additional information or request a safety and health conference with a district manager or designee, although that deadline is not binding. A party may submit “any addition relevant information” before or during the informal conference. Further, after the “conclusion of the conference, or expiration of the conference request period, all citations that are abated and all orders will be promptly referred to MSHA’s Office of Assessments. The Office of Assessments will use the citations, orders, and inspector’s evaluation as the basis for determining the appropriate amount of a proposed penalty.”
In February 2008, with MSHA enforcement litigation at record high numbers, MSHA issued Procedure Instruction Letter (PIL) I08-III-01. According to MSHA, the policy implemented by that letter was intended to “provide district managers broad discretion in limiting the number of safety and health conferences held.” PIL I08-III-01, which many believe circumvented the typical agency public notice and comment rulemaking process, purported to restrict informal conference requests to only those citations and orders alleging unwarrantable failure and high negligence violations and included a directive to district managers to cancel all previously granted conference requests which do not involve those elevated negligence categories. In this way, PIL I08-III-01 narrowed the very discretion MSHA stated it sought to broaden.
Recently, there has been yet another change, apparently reversing the direction taken in the 2008 PIL. A number of operators have reported that MSHA recently responded to conference requests with a letter stating: (1) that a conference will be scheduled after MSHA issues a proposed assessment on the citation or order at issue; (2) the operator must timely contest the proposed assessment; and (3) the contest has been received by MSHA, at which time MSHA will contact the operator with notice of the date, time, and location of the informal conference.
In other words, where MSHA employs this response, an operator must still request a conference within the 10-day time period and, if the 2008 PIL is still in force, may only do so for citations and orders alleging unwarrantable failures and high negligence. This policy, however, could drastically reduce the informal conference’s usefulness.
Some have suggested that this informal conference process is an attempt to solve the problem of an operator who merely seeks an informal conference to request a penalty reduction. If that is the case, it pushes the conference timing until after the penalty is assessed, typically between two and six months. This makes the new policy a poor solution for a process that can be particularly effective at weeding out the occasional, but inevitable, poorly written citations and orders (e.g., where an inspector makes a mistake), or poor defensive arguments (e.g., where an operator makes a mistake) early on, so as to avoid litigation. Instead, the new policy adds the unnecessary step of forcing the operator who wants a simple conference to discuss the merits of a particular citation to not only await the penalty assessment, but also to formally contest the penalty, thereby imposing more paperwork and burden on the Commission, MSHA, and operators themselves by creating the very litigation the informal conference process was created to avoid.
Once a penalty is contested, a Commission ALJ is assigned to the matter and MSHA ceases to have jurisdiction over the case. MSHA can offer to settle with the operator, but the settlement ultimately must be approved by the assigned ALJ upon motion by one or both of the parties. That decision may also be reviewed by the full Commission.
The new procedures are a mixed bag for industry. On one hand, it looks like the informal conference process may be opened back up to the full range of citations. On the other hand, it will significantly delay the process and place a greater paperwork burden on everyone. One thing, however, is certain; in order to make effective use of the new system, you will need to do the following:
1. Understand how the penalty contest system works so that you can timely contest the penalties you disagree with and understand what will happen if the contest is not settled at the informal conference stage.
2. Understand how to gather and present evidence to be used at the conference. Since the time between the issuance of the citation and the conference will be longer, it will be more important than ever to have well documented evidence supporting your point.
3. Know what you want. The clear focus of this program is to resolve penalty-centered disagreements. Therefore, it is important that you know what changes must be made to the citations in order to achieve the penalty reduction you are seeking.
Peter S. Gould is an associate at Patton Boggs LLP. He advises clients on administrative law matters and complex litigation, with a focus on environmental, heath, safety, and land use. Gould may be reached via phone at 303-894-6176 or via e-mail at firstname.lastname@example.org.
The new procedures are a mixed bag for industry. Although it looks like the informal conference process may be opened back up to the full range of citations, it will delay the process and create more paperwork for everyone.