June 1, 2009
As you likely know, the Mine Safety and Health Administration (MSHA) has changed the way it conferences citations. MSHA still wants you to tell them if you want an informal conference within 10 days after you receive the citation in question, however, MSHA has decided that it will not hold the informal conference until after 1) the penalty has been proposed, and 2) you have filed a timely formal contest of the penalty by checking the boxes on the Proposed Assessment form and returning the form to MSHA. While this system theoretically may put both parties (MSHA and the mine) in a better position to resolve those aspects of many citations that would otherwise take time and money, the new procedure can easily put the mine operator in a difficult position when it comes to abatement of an unjustified citation.
Let’s suppose you get a citation that you think is unjustified and the abatement that MSHA requires will be costly or will have a significant impact on you future operations. Under the old procedure, you could ask for an informal conference and attempt to resolve the disagreement (or at least try to arrange an abatement extension) before the abatement date arrived. Under the new procedure, you are still free to contact the field or district office to request an informal conference or meeting to discuss the matter, and you should definitely do that if one of the situations discussed below happens to you. Now, however, MSHA may refuse to hold any sort of informal conference until the penalty has been assessed. If you have already asked for a conference, MSHA field office officials may refer any requests for abatement extensions based on the validity of the citation to the very Conference and Litigation Representative (CLR) who just deferred the conference until after the assessment.
If this happens, you may have to make a difficult decision. There are three scenarios that could arise in this instance.
In one scenario, you could choose to abate the violation and simply wait to challenge the citation until after the assessment is received. In this case, of course, the cost of abatement will be spent and may not be recoverable, even if the citation is ultimately vacated.
In the second scenario, you could simply refuse to abate the citation and let MSHA issue an order under Section 104(b) of the Act for failure to abate by the specified date. Although that would save you from spending time and money on a potentially unnecessary abatement, Section 104(b) carries potential penalties of up to $5,000 per day until the matter is resolved. This is a very high-risk strategy because, if the challenge to the citation is ultimately unsuccessful, you could end up paying the penalty on the citation, a daily penalty under Section 104(b), and the money necessary to abate the citation as well.
That leaves the final scenario; hiring counsel and filing a pre-penalty contest accompanied by a request for expedited treatment. You have the right to file such a contest within 30 days after receiving the citation. Depending on the type of citation being challenged, you may not have an automatic right to expedited treatment. In order to get the right to expedited treatment, you will have to back up your request with data showing that the abatement is infeasible or showing that any abatement will have a serious effect on the economics or productivity of your operations. The contest may challenge the validity of the citation, as well as the reasonableness of the length of time for abatement.
There is one more potential pitfall that has to be addressed in this scenario. Under the new procedure, the CLR routinely files a request for a 90-day extension of time in which to file a petition for assessment of penalty. If such a request is filed while you are still considering your options, you must oppose that request, lest a court considers your agreement with it to be an admission that you don’t need expedited treatment after all. Once again, this is a high-risk strategy. Litigation is expensive, and “hurry up” litigation is especially expensive. Of course, there is also a risk that you may lose in a legal battle.
The only thing that is clear is that, if you are confronted with such a situation, you should get impartial, objective advice as to which path to take. As you can see, there are no risk-free paths out of this situation, and all of the costs, benefits, risks, and advantages should be carefully evaluated before a choice is made as to how to proceed.
While there have not been any official statistics made public, informal conversations with other folks in my end of this business indicate that more and more pre-penalty contests are being filed, along with requests for expedited treatment. It is too soon to tell whether this increase is related to the new conference procedures, but it looks like such a result is inevitable.
Mark Savit is a partner at Patton Boggs LLP. He counsels and represents clients on natural resources law and regulations matters, with emphasis on mine safety and health law, protected species law, public lands law, and more. Savit may be reached via phone at 303-894-6177 or via e-mail at firstname.lastname@example.org.