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 msavit@pattonboggs.com.