Pit & Quarry • February 2021 • MSHA & THE LAW

With the new presidential administration beginning, there are many changes we can anticipate at the Mine Safety & Health Administration (MSHA). Not least among them could be MSHA’s informal conference process.

Just how it might change is not clear, but what is needed is uniformity across the districts to ensure a fair and efficient process for all operators – no matter where they may be located.

RIGHT TO CONFERENCE

Although operators have the right to request a conference with MSHA on citations and orders, the law gives MSHA wide discretion in deciding whether to hold a conference and how the conference will be held. This has created significant issues which have only been compounded by the rearrangement of district offices under the “One MSHA” initiative. For many operators, the conference process available to them changed abruptly when they were shifted to a new district.

The right to conference is not in MSHA’s governing statute – the Federal Mine Safety & Health Act – but rather is MSHA’s own creation and can be found in the agency’s regulations at 30 C.F.R. § 100.6.

This regulation states: “[a]ll parties shall be afforded the opportunity to review with MSHA each citation and order issued during an inspection.” The regulation goes on to say, however, “[i]t is within the sole discretion of MSHA to grant a request for a conference and to determine the nature of the conference.”

The regulation leaves discretion up to the district manager to whom the request for conference is made. It is this division of authority among the districts that leads to inconsistencies and unfairness in how the conference process is administered.

PAST PRECEDENT

While some districts traditionally have provided operators with good opportunities to conference citations, other districts have not. Where the conference process works as it should, the operator submits a simple written request stating what citations it wants to have modified or vacated and why. Then, MSHA promptly responds and schedules a conference, with an MSHA conference litigation representative from the district usually handling the conference.

At the conference, the operator gets a fair chance to explain in as much detail as necessary why certain things about the citation are incorrect and what changes should be made. The operator also can decide who from management will attend the conference and can have its legal counsel participate. During the conference, the operator has a good chance to present all of the facts and whatever other evidence it wants to share to support its position.

After the conference is concluded, MSHA promptly informs the operator in writing of its decision. In the event MSHA declines to make the requested changes, it explains the reasons why it is upholding the citations.

SETTING EXPECTATIONS

However, with some districts, conferences will lack one or more of these characteristics of a fair process. Some districts seem to rarely, if ever, change citations in a conference. This alone discourages operators from investing in the conference.

Some districts also routinely provide no feedback on why it decided against changing the citations. There also has been a disturbing trend in recent years toward districts leveraging their power in the conference process to discourage operators from later exercising the right to contest citations and penalties.

None of this is to say that the conference system is completely broken. As we stated earlier, there are a number of districts in which the conference process provides a good chance for operators to resolve issues with citations fairly and efficiently. This should be the case in all districts.

Whether MSHA leadership will make needed improvements to provide consistency in the process for all operators remains to be seen and may be unlikely. Operators will need to stay alert to whatever changes their local district makes in the future, as the conference process seems to change fairly frequently.