Pit & Quarry, January 2010

Law Continued from page 32 On the other hand you could say to yourself were you to get a ticket or two in the future you might have to attend driving school or worse yet your driving privileges could be suspended You might then consider it prudent to contest the current citation because you never know what tomorrow might bring Many mine operators understandably have adopted this protective approach Uncertainty and possibility When you receive citations you are not always sure why the inspector cited you You do not know if the inspector was right Besides there are so many findings in every citation you are likely to question one or more of the findings even if you agree there was a violation All you know is you have been given a dozen citations or sixdozen citations in some cases You will need to investigate and evaluate If the proposed penalties come out high you will definitely be motivated to leave no stone unturned If you file a contest with the Federal Mine Safety and Health Review Commission the agency that has exclusive authority to issue final penalties you can choose discovery You can get the details as to what went into the citation You can talk to a government attorney or a conference and litigation representative CLR someone other than the inspector to see if they agree with you In some cases the attorney or CLR may not agree with you on your greatest concerns but may disagree with the inspector on something else that never occurred to you The attorneys and CLRs have complete files and can better evaluate the inspectors findings Additional considerations Operators want their compliance records to reflect their safety efforts There have always been substantial contests and rarely has money been the motivation Typically the contest process costs more than any penalty savings But contests help keep the system fair They help ensure proper application of regulations As enforcement and penalties have gone up longstanding operator disagreements about what is S S and what is unwarrantable have become critical There are other important issues and they are now being tested as never before Increased penalties and pattern enforcement warrant raising issues that perhaps would not have been worth the trouble when penalties were lower Legal editor Michael T Heenan is an attorney at Ogletree Deakins Nash Smoak Stewart one of the nations largest labor and safety law firms He can be reached at michael heenan@ odnss com The Hillhead 2010 website is now part of Agg Net com The Aggregates Recycling Information Network 34 PIT QUARRY January 2010 www pitandquarry com