days from the date the company re-
than 30 days from receipt of the pro-
Now here is where things are get-
ceived the citation or order.
posed assessment that the company
ting really confusing for companies.
A second type of contest occurs
desires to have a hearing (trial) on the Because so many companies have
when MSHA serves a proposed civil
citations and penalties.
been contesting citations due to high
penalty assessment on a company
This necessitates MSHA file a case penalties, MSHA is seeking to inter-
by certified mail. The company may
with the Federal Mine Safety and
pose a conference procedure after the
contest any and all citations, orders
Health Review Commission. In such
civil penalty is contested but before
and penalties. This is done by in-
a case, MSHA must prove the citation commencement of formal procedures
forming MSHA in writing no less
and penalty are appropriate.
before the commission.
Thus, instead of MSHA’s attorneys
proceeding ordinarily to file a peti-
tion for assessment of civil penalty
with the commission, within 45 days
of receiving the company’s contest
(request for a trial), cases are being
passed to MSHA conference and liti-
gation representatives (CLRs). The
CLRs then ask the judge for more
time to file a petition for assessment.
The reason given is MSHA proposes
to hold a conference with the opera-
tor to see if the case can be settled
rather than go through the entire for-
mal litigation process.
• Compact–Minimal weight for Portable Equipment
• Patented Flux Control Circuit-Magnetism is
GUARANTEED FOR LIFE
• All Stainless Steel Construction
• Sizes to Fit Any Belt Width
• Heavy-Duty Belt is Standard
Magnetic Head Pulleys
• Waterproof stainless steel face
• Shipped ready to install
Suspended Electromagnets
• Exclusive 10 year warranty
against coil burnout
Milwaukee, WI USA
414/672-7830
www.dingsmagnets.com
Exercise caution
Thus far, it appears MSHA is offering
relatively minor concessions in these
conferences to try to make the oper-
ator’s contest go away. Nothing indi-
cates so far that MSHA’s settlement
offers come anywhere close to what
can be accomplished if the company
proceeds with proper presentation of
its defenses.
A conference and litigation repre-
sentative is not a judge, and there is
little incentive for the CLR to make
any major reduction in citations or
penalties without a judge being in-
volved. The procedure may work for
minor cases, with few citations and
small penalties, but there is every rea-
son for companies to exercise extreme
caution with cases of any magnitude
or significance.
There is a reason Congress created
the commission – to assure fairness
in the disposition of cases. ;
Legal editor Michael T. Heenan is an attorney at
Ogletree, Deakins, Nash, Smoak & Stewart, one of the
nation’s largest labor and safety law firms. He can be
reached at michael.heenan@odnss.com.
