Pit & Quarry, May 2010

BY MICHAEL T HEENAN Law The right to contest I n preparing for an Energy and Mineral Law Institute panel discussion on March 23 in Washington I considered a lot of questions that have been raised by the House Education and Labor Committee as well as questions posed at different times by MSHA and labor union representatives What prompts these questions is the fact that there is a very large backlog of cases brought by mine operators before the Federal Mine Safety and Health Review Commission The suggestion is that operators are abusing the system Not so I say Here are my answers to some of the questions Q Does the backlog of cases affect miners health and safety A I do not believe the backlog has any impact on efforts of mines and miners to operate safely From my experience none of the operating people are thinking about the backlog Even if they are aware of the backlog it is meaningless to them Citations on the other hand are always a concern at the time they are issued without regard to penalties or cases The backlog does not prevent citations from being issued Q Why are so many contest cases being filed by mine operators A It is increasingly difficult to get wrongly issued citations and findings corrected in the MSHA district offices It appears that everything is drifting toward litigation Inspectors make mistakes like everyone else The sooner mistakes are rectified the better for everyone Q Does the backlog present problems for companies A I think the backlog interferes with prompt resolution of issues and I think prompt resolution is important for compliance guidance Right now if an inspector writes a bad paper it could sit out there for a couple of years before it gets vacated hardly a solution for an agency and an industry that runs by the rule of law And for operators its the old thing of justice delayed is justice denied I should add that if company people feel unfairly treated that is not helpful to the cause of safety It does nothing to encourage all important respect for law enforcement Whether the mine operator is right or wrong a prompt answer is needed There has to be an efficient means for review of issues With the demise of the informal conference many companies are filing cases that they never would have filed before Litigation has value long term but it does not usually provide quick answers Q If mine operators do not have to pay penalties right now because their cases are tied up in the backlog does that not vitiate the enforcement program A I think the regulatory program is fully effective The truly important tools that MSHA has are those with immediate effect citations and orders which can vary in severity I think concern about citations and orders as well as penalties has always been there regardless of penalty amounts Mine operators have always been concerned about the potential for high penalties Mine operators have also always had concerns about significant and substantial S S violations That is particularly true these days because MSHA is enforcing pattern provisions as never before If concern about pattern enforcement provides added incentives for compliance it also contributes to the backlog because operators Take note If concern about pattern enforcement provides added incentives for compliance it also contributes to the backlog because operators do not want a single undeserved S S on their record do not want a single undeserved S S on their record Q Penalties have risen and fatalities have fallen Does that not prove that increased penalties are having the desired effect A Well if that is true then the backlog is clearly not affecting miner safety But consider this In 2008 total proposed penalties were 194 million In 2009 total proposed penalties dropped by more than 55 million to 137 million Fatalities continued to drop The fact is that the mine industry operates very conscientiously and there is a strong safety ethic in the industry As a result there has been a continual downward trend throughout the 20th century and now the 21st century Q Some mine operators are contesting every citation they receive Does that not obstruct the civil penalty enforcement program A No that does not obstruct anything There is a reason Congress created the commission Years ago there was a fellow named Matt McCulloch who headed the assessment office Matt used to say that if operators are not contesting penalties are not high enough Certainly if the agency raises penalties as drastically as was done in 2007 a major reaction is not surprising and that is what we have Continued on page 44 42 PIT QUARRY May 2010 www pitandquarry com