Understanding MSHA’s informal conference process

By Margo Lopez and William Doran| June 13, 2019

Aggregate producers are raising concerns as MSHA merges coal inspectors with the metal/nonmetal mining sector. Photo by Kevin Yanik

MSHA is cognizant of this operator interest in the informal conference process, leading to the three-month pilot program. Photo by Kevin Yanik

For years, mine operators have had mixed feelings about the benefits of the Mine Safety & Health Administration’s (MSHA) informal conference process.

In theory, this Part 100 procedure provides a valuable opportunity to resolve concerns about citations and orders before launching formal contest proceedings before the Federal Mine Safety & Health Review Commission. The ambivalence about the process stems in part from the unequal commitment to the program that is perceived from different district offices, as well as the lack of satisfaction in the results when a conference is held.

Even so, the conference process, if conducted with equal commitment to fair and just results on both sides, can provide an efficient means for addressing issues with citations early in the process.

Project underway

MSHA is cognizant of this operator interest in the informal conference process. Still, the agency is frustrated by the sap on resources it says it experiences when operators accept modifications to citations but then subsequently file formal contests of the remaining allegations.

Therefore, MSHA initiated a three-month pilot project in two districts to see if a final resolution on citations that will be regularly assessed can be obtained at the informal conference stage. The new conference process is being tested in two districts: metal/nonmetal Southeast district and coal region 3.

Under the pilot project, MSHA will not make any modifications to citations unless the operator signs a binding agreement at the end of the conference to accept the modifications offered by MSHA and relinquish all rights to later contest the citations.

The goal of this pilot project is to reduce or even eliminate this operator practice and lock in the results achieved in the conference. Ultimately, the agency wants to reduce the number of cases going to contest.

Of course, this MSHA concern misses the fact that even when the agency does make changes to citations at conference, there are often significant issues remaining that need to be addressed through the contest process. Such issues can seriously impact ongoing abatement and future enforcement if they are not resolved.

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 to be helpful to operators in getting an early resolution.

Preparatory measures

While the pilot project began just recently on April 1, we know at this point there are a few suggestions you might consider to increase your chances of a good result.

For instance, in your written conference request, ask MSHA to provide a copy of the agency’s inspection file so it can be reviewed before the conference is held. If necessary, file a request for the file under the Freedom of Information Act. There almost always is valuable information in the inspector’s notes and photographs to have in advance of the conference.

When necessary, involve counsel in the conference to be sure you’re getting the best result possible in this process, as well as to help evaluate whether the agency’s final offer is one the company should accept. Do not agree to resolve any citation or order that could trigger a special investigation, unless MSHA will include in the settlement agreement a commitment not to issue any associated 110(c) penalties.

The agency says the pilot project will only be used to conference 104(a) citations that are subject to regular penalty assessments. This should reduce the risk of special investigation, but where any citations allege high negligence or reckless disregard, it would be prudent to request this provision. Also, seek advice on whether to include non-admissions language in the settlement agreement.

Finally, be mindful that what you say in the conference could potentially be used as evidence at a hearing if the company decides not to accept the conference results. The agency has not indicated whether it deems the normal litigation, evidentiary protections, that are available in traditional settlement negotiations, to be applicable.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.