Contesting enforcement actions can be daunting.
In my March column, I explored the steps involved in contesting Occupational Safety & Health Administration (OSHA) citations. Now, we turn our attention to the Mine Safety & Health Administration (MSHA).
Before getting into the contest process, there are several key distinctions between the MSHA regulatory scheme and OSHA.
First, MSHA has the authority to conduct inspections at mines whenever it chooses and to enter the property upon arrival. MSHA is required to inspect all active surface mines at least twice per year and must inspect all underground operations at least four times per year.
While OSHA has a six-month statute of limitations, MSHA does not. MSHA inspections and investigations into accidents can take as long as the agency determines is necessary. The duration of regular safety and health inspections varies widely by mine size, with inspections ranging from a single day to weeks or even months.
Unlike OSHA, which issues citations and orders only after completing an investigation, MSHA issues citations and orders while the investigation is still ongoing. Often, these are issued the day the condition is observed or soon after.
Contesting MSHA citations and orders
Once MSHA issues an enforcement action, such as a citation or order, the operator has the right to contest it. This can be done through MSHA’s informal process or by contesting the decision formally before the Federal Mine Safety & Health Review Commission (FMSHRC).
MSHA’s informal contest process differs from OSHA’s informal process in several ways.
First, an MSHA conference occurs while the inspection is still technically open and before penalties are assessed. So, an operator must make arguments against enforcement without knowing the financial penalty.
In addition, any materials submitted by the operator, as well as any conference notes, will be added to the inspection file. For this reason, the company must be careful with both written and verbal statements during the conference process. MSHA has used such statements to further justify citations and orders during later contest efforts.
Second, this process is not a negotiation. The operator cannot agree to or reject settlement terms. The company representative presents their case, and MSHA unilaterally decides what modification, if any, it will make. MSHA notifies the company of this decision after sending the enforcement to receive its financial penalty.
If you choose to participate in the informal MSHA conference, you must request it in writing within 10 days of the issuance of the citation. Operators should note in writing the date the citation or order was received from MSHA and begin the 10-day clock.
The opportunity to engage in a formal contest of MSHA enforcement begins once the penalties are assessed and received by the company. MSHA tracks the date when the penalty assessment (fines) is received by the company.
At that point, a 30-day period begins during which the company may contest the enforcement actions. Beware of the date of receipt and track it carefully. If the 30-day window is missed, contesting becomes much more drawn out. MSHA can also object to a motion to reopen before the FMSHRC.
There are several instances in which a notice of contest should be filed with FMSHRC within 30 days of issuance. These include an imminent danger or failure-to-abate order. In some cases, an operator may need to act even more quickly if seeking expedited review and proceedings.
Final thoughts
I urge companies to review the citations and orders issued to their mining operations by MSHA and contest those that are inaccurate or unwarranted. Even more so than with OSHA, companies often view MSHA fines and enforcement as a cost of doing business, given MSHA’s regular presence and its often-low financial penalties.
However, given contractor pre-qualification and the enforcement influence of MSHA citation and order history on operators, I recommend that companies consider contesting citations and reach out to us to learn how we can help you evaluate and protect your MSHA enforcement record.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached nscala@connmaciel.com.
Related: Navigating and challenging OSHA enforcement actions