"MSHA Launches Conference Program to Address Backlog of Cases Before The Federal Mine Safety & Health Review Commission" - Mining Association of South Carolina Newsletter

September 2010Articles
As Seen in the September, 2010 issue of Mining Association of South Carolina.

On August 20, 2010, the Mine Safety and Health Administration (“MSHA”) announced a new 90-day conferencing program in hopes of reducing the number of cases pending before the Mine Safety and Health Review Commission (“Commission”).

The program will begin on August 31, 2010, and will impact three mining districts – Coal District 2; Coal District 6; and Metal/Nonmetal Southeast District. The Metal/Nonmetal Southeast District is the district that oversees metal/nonmetal operators in Kentucky, Tennessee, North Carolina, South Carolina, Mississippi, Alabama, Georgia, Florida, and Puerto Rico.

The Federal Regulations allow mine operators to request a conference with MSHA officials to dispute citations and orders issued by mine inspectors. Conferences were common prior to 2007, when some districts – notably Coal District 4 – refused to grant any conference requests because of the number of cases being handled by Conference and Litigation Representatives. Under the new program, mine operators, the miners’ representatives and MSHA will attempt to resolve any outstanding factual issues prior to the issuance of the civil penalty.

According to Joseph A. Main, the Assistant Labor Secretary for Mine Safety and Health, the purpose of the pre-assessment conference is to determine the facts before a violation is contested. Main believes that the conferencing program will help reduce the number of cases before the Commission and also to improve the consistency in MSHA’s enforcement of the Mine Safety and Health Act.

Impact Going Forward

Mine operators in South Carolina should take advantage of this limited opportunity to conference any citation or order. The conferencing program will run from August 31, 2010 through November 30, 2010. At the conference, operators (or their legal counsel) will have the opportunity to present facts, examination records, reports, and other evidence of compliance with the cited regulation.

Prior to 2007, operators were successful in reducing S&S violations to non-S&S violations; having the negligence reduced from high to moderate or even low; and even having the condition or practice alleged by the inspector amended. In the past, depending on when the conference was scheduled, some operators were also successful in reducing the civil penalty during these conferences and settle a number of citations prior to or shortly after litigation had commenced.

Procedure

The mine operator will need to send a written request (fax or email is acceptable) for a pre-assessment conference to the local field office supervisor within 10 calendar days of the issuance of the citation or order. This written request must include the specific reasons for the need for the conference. During this 10-day period, MSHA may request additional information. The local field office supervisor does not have to grant a conference request. If a request is granted, MSHA is to schedule and conduct the conference within 15 calendar days of the request. According to the Southeast District, the field office supervisor will be the primary conferencing official.