Whose Right Is It, Anyway?


September 1, 2008

Every citation must stand or fall on its own merits. Don’t be intimidated into foregoing your rights.

by Mark Savit

Recently, our industry has come under criticism from both the assistant secretary for mine safety and health and the solicitor of the Department of Labor because, according to them, the rate at which citations are being contested is too high. In fact, Assistant Secretary Stickler publicly accused the industry of “deliberate abuse” of its contest rights. I have to admit, I am a bit puzzled by this criticism. After all, everyone who receives a ticket of any kind has the absolute constitutional right to challenge it (indicated by the phrase, “This isn’t an admission of guilt, your signature merely indicates that you received the [insert here ticket, summons, citation, etc]”). Of course, neither the solicitor nor the assistant secretary meant that we shouldn’t have the right to contest citations. Instead, they must mean that some companies are unfairly taking advantage of that right by adopting a policy of contesting every citation MSHA issues, regardless of the merit.

I have never advocated such a policy, but by the same token, I’ve never advised a client to forego his or her right to contest when the circumstances merit such an action. Apparently, however, the facts and circumstances underlying the decision to challenge a particular group of citations have nothing to do with MSHA’s criticism. Instead, it seems based entirely on the percentage of citations an operator challenges, rather than on MSHA’s knowledge of a “contest-them-all policy” or any investigation into the facts and circumstances underlying the citations. MSHA and the solicitor seem to believe, based solely on the numbers, that an operator who contests one-third or more of his or her citations must be abusing the system.

Obviously, MSHA and the secretary’s claims have raised a good bit of concern among the mine operators who feel that they have done nothing more than exercise a legal right in good faith and with just cause. MSHA has not, however, responded by taking a hard look at the issues (after all, maybe some of the increase in contest rates comes from MSHA’s recent decision to severely curtail the informal conference process, dramatically increase penalties, or hire several hundred brand new inspectors). MSHA hasn’t bothered to pick up the phone to ask the operators that have contested 95 or even 100 percent of their citations why their contest rates are so high. Instead, MSHA has responded by threatening operators with some sort of legal action to force the rates down.

I have to say, I’m not sure what MSHA has in mind, but my advice will not change. There are circumstances in which both pre- and post-penalty contests should be filed, and the decision to challenge a citation should be made on those grounds regardless of the percentage of citations being challenged. An operator’s “contest rate” should never factor into an operator’s decision to contest a citation. No one should be intimidated from exercising a legal right.

Just to make sure that everyone understands what grounds might justify a challenge, here’s a short checklist that you might find handy, along with a couple of (hopefully helpful) bits of advice about particular circumstances:

1. We routinely advise that all Section 104(d) citations and orders be challenged within 30 days of their issuance. The reasons for this are twofold: First, there is a risk of shutdown inherent in any such enforcement action; Second, all such actions are reviewed to determine if further investigation should be undertaken under Section 110(c) of the Act (individual liability). If such an investigation is, in fact, begun, the contest proceeding would be the only forum in which to resolve disputes regarding the propriety of the investigators’ actions without risking the issuance of an additional citation for “impeding” his investigation.

2. We counsel every client to examine each and every finding on the citation. Now that the penalty rules have changed, each of those findings has value in determining a penalty. The decision to check “fatal” rather than “permanently disabling” in the “gravity” section of the citation, for example, could mean several thousand dollars. Failure to examine each such finding regarding the likelihood of injury, the severity of the injury, the negligence attributable to the operator and number of persons affected is akin to failing to check whether you got the right change.

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 msavit@pattonboggs.com.

No one should be intimidated from exercising a legal right.

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