If the regulations remain inconsistent with practice, it won’t be the first time. After all, the strong language of 30 C.F.R. § 100.6(a) suggests that everyone gets a settlement conference if they really want one. (See for yourself:  “All parties shall be afforded the opportunity to review with MSHA each citation and order issued during an inspection.”)  But where one MSHA hand giveth, the other taketh away. The regulation’s second sentence states that, even where a regulated party gets an “opportunity” to review its citation, MSHA has “sole discretion” to actually grant a conference. As we know from these new procedures, fewer and fewer operators will actually get to enjoy that “opportunity.”

The good news is that nothing in the new rules prevents you from reaching creative settlements on your own. These include contacting the field office to discuss erroneous citations or orders, or working out settlements with district managers, their staff, and the Department of Labor attorneys. For big-ticket items such as citations and orders that threaten closure, costly or impossible abatement demands, or risk of criminal enforcement, you should still call your lawyer.

Christa Lee Rock is an associate in Patton Boggs LLP’s Denver office. She can be reached at 303-894-6141 or at crock@pattonboggs.com.

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A greater number of citations are being funneled through an ever-narrowing mediation process.