MSHA & THE LAW BY BILL DORAN AND MARGO LOPEZ WHAT TO EXPECT WITH MSHA’S INFORMAL CONFERENCE PROCESS W ith the new presiden-tial 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. 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. MSHA declines to make the requested changes, it explains the reasons why it is upholding the citations. SETTING EXPECTATIONS However, with some districts, confer-ences 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 con-ference system is completely broken. As we stated earlier, there are a num-ber of districts in which the conference process provides a good chance for op-erators 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 opera-tors remains to be seen and may be un-likely. Operators will need to stay alert to whatever changes their local district makes in the future, as the conference process seems to change fairly fre-quently. P & Q Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com pitandquarry.com PAST PRECEDENT While some districts traditionally have provided operators with good opportu-nities to conference citations, other dis-tricts have not. Where the conference process works as it should, the operator submits a simple written request stating what citations it wants to have modi-fied or vacated and why. Then, MSHA promptly responds and schedules a conference, with an MSHA conference litigation representative from the dis-trict usually handling the conference. RIGHT TO CONFERENCE Although operators have the right to request a conference with MSHA on ci-tations and orders, the law gives MSHA wide discretion in deciding whether to hold a conference and how the confer-ence will be held. This has created sig-nificant 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 shift-ed to a new district. The right to conference is not in MSHA’s governing statute – the Federal Mine Safety & Health Act – but rath-er 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.” 56 PIT&QUARRY February 2021 Some districts seem to rarely, if ever, change citations in a 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 op-erator also can decide who from man-agement 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
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