Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/85637
by Kristin R. White Rock PRE-ASSESSMENT Reassessing O n Dec. 1, 2011, the Mine Safety and Health Administration (MSHA) an- nounced it will begin implementing pre-assessment conferencing procedures in January 2012 in an effort to reduce the backlog of future violations before the Federal Mine Safety and Health Review Commission. The backlog of cases pending before the Review Commission has been attributed, in part, to MSHA's replacement of pre-assessment conferences with post-assessment conferences. With the return of pre-assessment conferences, operators will want to be prepared early in the process in order to hold a successful negotiation. Kristin R. White is a member of Jackson Kelly PLLC's Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0006 or kwhite@jacksonkelly.com. 40 Prior to March 2009, MSHA regularly conducted pre-assessment conferences with mine opera- tors. That process changed with the issuance of MSHA's Program Information Bulletin (PIB) No. P09-05, which informed the mining industry that district managers and conference and litigation representatives (CLR) had the discretion to defer conferences until penalties had been proposed and contested. After the PIB was issued, MSHA exercised its "discretion" to postpone conferences on the vast majority of mine operators' conference requests. Consequently, almost all conferencing now takes place after MSHA has proposed a pen- alty assessment and the mine operator has formally contested the citation and penalty with the Review Commission, which has increased significantly the number of contests filed with the Commission. MSHA's change in its conferencing procedures occurred at a time when the number of citations and orders being written increased dramatically. In 2006 and 2007, MSHA issued 62,896 and 58,708 citations and orders, respectively, in the metal/ non-metal sector.1 In 2008, MSHA issued 68,050 AGGREGATES MANAGER February 2012 Operators should be prepared for the return of pre-assessment conferences. in the metal/non-metal sector. The 2008 total rep- resents a 14-percent increase in the total number of enforcement actions being written. MSHA con- tinued a pattern of increased enforcement, issuing 69,290 citations and orders in 2009 and 75,928 ci- tations and orders in 2010. In addition, MSHA in- creased the total amount of penalty dollars assessed from $10,899,345 in 2006 to $45,938,656 in 2010 in the metal/non-metal sector. This resulted in an increase of 76 percent in proposed penalties in only four years. With this significant increase in enforce- ment actions and proposed penalties, it is not sur- prising that the number of contested proposed civil penalties similarly increased, especially given the fact that pre-assessment conferencing rights were taken away in 2009. Early conferencing rights offers mine opera- tors an opportunity to discuss violations cited by MSHA inspectors while traveling with inspectors, during close out conferences, and with district management at requested safety and health confer- ences. Prior to MSHA reinstating pre-assessment conferencing rights, MSHA conducted a pilot program in certain districts that gave operators the ability to request and hold safety and health confer- ences before the penalties were assessed by MSHA. The stated goal of the program was "to create a process that provides early resolution of concerns to prevent the need to contest citations and orders; and, to increase accuracy and consistency in cita- tion and order writing by creating a feedback loop so that all parties could learn from the process." PEIR Report Summary. MSHA's office of Program and Evaluation and Information Resources (PEIR) conducted an evaluation of MSHA's pre-assessment safety and health conferencing pilot program. In its report,