To the extent your MSHA district permits operators to request and hold pre-assessment safety and health conferences, operators should be prepared to timely request a conference and develop any arguments to present during the conference. The request must be made in writing and within 10 days of receipt of the citation. 30 C.F.R. § 100.6. The purpose of requesting a conference would be to give the operator a chance to present any evidence which may reduce the level of negligence or gravity assessed on the violation, or show that the citation is without merit and should be vacated.

MSHA’s change in its conferencing procedures occurred at a time when the number of citations and orders being written increased dramatically. In 2006 and 2007, MSHA issued 62,896 and 58,708 citations and orders, respectively, in the metal/non-metal sector. In 2008, MSHA issued 68,050 in the metal/non-metal sector. This represents a 14-percent increase.

Prior to the conference, an operator should consider who will participate in the conference and what documents may be needed. An operator should decide what defenses exist to the citation regarding the underlying violation, negligence, or gravity of the enforcement action. It may be helpful to prepare an outline of relevant points and facts that support each challenge. Where applicable, an operator may want to include relevant court decisions, interpretive guidelines, agency directives, or correspondence as part of its defense argument. An operator will want to be prepared to answer tough questions, correct any factual misunderstandings, and ask for explanations when an issue is unclear. It is important to always be truthful and stay focused on the issues at hand.

In concluding the conference, an operator will want to recap any agreements made with regard to modification or vacation. If an appropriate resolution is not reached, an operator then must decide if a contest of the penalty and citation is warranted. Overall, an operator should attempt to limit the conference to the issues it seeks to resolve and maintain a professional dialogue with the agency. AM

MSHA’s Assessment Office is the source of all enforcement action totals.

Kristin R. White is a member of Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0006 or kwhite@jacksonkelly.com.