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 pgould@pattonboggs.com.

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.