The Mine Safety and Health Administration (MSHA) is in the process of conducting a three-month test to see if it can reach final resolutions of citations with mine operators at the informal health and safety conference stage. The test, ending June 30, is being conducted in two districts: Coal Region 3 and the Metal/Nonmetal Southeast District.
Under the pilot project, MSHA will not make any modifications to citations unless operators sign binding agreements at the end of negotiations, in which they accept the modifications offered and relinquish all rights to further contest the citations before the Federal Mine Safety and Health Review Commission (FMSHRC).
During the conference, the operator and MSHA would negotiate both paper changes and penalty amounts for all citations that are among the subjects of the conference. If a resolution is reached, both parties would sign an agreement indicating the terms of the settlement along with the operator’s agreement not to contest the citations or assessments.
“MSHA long has been concerned that operators can obtain modifications to citations in conferences and then go on to contest the modified citations and seek further changes in cases before the commission,” explains attorney Margaret S. Lopez of law firm Ogletree Deakins. “With this pilot project, the agency intends to commit operators to results achieved via conference and thereby reduce the number of cases to be contested.”
She also notes that while MSHA sometimes offers to make changes during conferences, in many circumstances significant issues remain that need to be addressed through the contest process.
“Such issues can seriously impact ongoing abatement and future enforcement if they are not resolved,” Lopez says. “If MSHA is willing to make good-faith settlement offers in the conference process that will address all such issues, then the settlement program offered through this pilot project may well prove helpful to operators seeking early resolutions.”
The pilot program has just started, and it is too early to tell whether it will be a worthwhile process for operators, she admits. However, based on what is known about the pilot program so far, Lopez suggests that mine operators may want to consider certain points.
What to Ask For
In the conference request, an operator may want to consider asking MSHA to provide a copy of the agency’s inspection file so that it can be reviewed before the conference is held, she says. “If necessary, the file may be requested under the Freedom of Information Act. There is almost always valuable information in inspectors’ notes and photographs.”
Involving counsel in conferences also can help operators evaluate the merits of the agency’s final offers, Lopez recommends, adding that careful thought also should be given to whether to include nonadmissions language in any settlement agreement.
Any citation or order that could trigger a special investigation is potentially problematic unless MSHA includes in the settlement agreement a commitment not to issue any associated penalties, Lopez warns.
“MSHA intends for the pilot project to be used only to conference citations that are subject to regular penalty assessments,” she points out. “This system should reduce the risk of special investigation, but in instances in which citations allege high negligence or reckless disregard, it may make sense to request such a commitment.”
In addition, Lopez stresses, “What is said in a conference may be used as evidence at a hearing if the operator decides not to accept the conference results.”
For this reason, attorneys at law firm Fisher Phillips say that when participating in a conference, operators should take care to advise MSHA that anything stated or written during the conference is for settlement purposes only and cannot be used in future contest proceedings if a settlement is not reached.
Whether operators can even obtain a conference has long been a source of frustration because under the law MSHA has the “sole discretion” whether or not a conference is even granted, the Fisher Phillips attorneys note. “It would seem, however, that if the pilot program is going to work, MSHA would be more inclined to grant conference requests.”
It is unclear from MSHA’s announcement when it would expand the program if the pilot turns out to be successful, but that appears to be the direction in which the agency is heading.