Whose Right Is It, Anyway?
3. We now also counsel every client to make sure that they are in no danger of a “repeat violation” problem. Because of the way the new penalty rules have been written, it is possible to get a very large penalty for a relatively minor violation simply because the mine has received more than a few citations for violating the same regulation over the prior 15 months. We have recently seen a $25,000 penalty for having a knockout missing from a junction box.
It’s now more important than ever to gain as much understanding as possible of MSHA’s new penalty rules under Part 100 and to review all citations after each inspection with an eye toward determining which findings might reasonably be challenged. It doesn’t seem to make sense to challenge every citation no matter what. Then again, it makes no sense to forego a right to contest if a failure to exercise that right could be harmful to your company. Ultimately, each citation must stand or fall on its merits, and MSHA has the burden of proof. Unless – and until – that changes, each operator has the concomitant right to challenge each finding on each citation regardless of what percentage of citations end up being challenged.
It is simply wrong to suggest that merely challenging a high percentage of citations, regardless of the reasons or the merit, is an abuse of the system. Last I looked, two wrongs don’t make a right, especially when a fundamental constitutional right is at issue.
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.
No one should be intimidated from exercising a legal right.
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