The Time Trap
MSHA’s new conference process may cause operators who want to challenge citations to make difficult decisions.
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.
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