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.