{"id":8980,"date":"2024-10-23T17:23:19","date_gmt":"2024-10-23T17:23:19","guid":{"rendered":"https:\/\/northamericanmining.com\/?p=8980"},"modified":"2024-10-23T17:23:22","modified_gmt":"2024-10-23T17:23:22","slug":"just-hear-us-out-more-to-the-point-give-us-a-fair-opportunity-to-be-heard","status":"publish","type":"post","link":"https:\/\/northamericanmining.com\/index.php\/2024\/10\/23\/just-hear-us-out-more-to-the-point-give-us-a-fair-opportunity-to-be-heard\/","title":{"rendered":"Just hear us out \u2013 More to the point, give us a fair opportunity to be heard"},"content":{"rendered":"\n

By Willa B. Perlmutter<\/em><\/p>\n\n\n\n

So, last week I had the pleasure of attending a seminar put on by the Energy & Mineral Law Foundation at the U.S. Department of Labor in Washington, D.C. It was called a \u201csafety seminar,\u201d but that\u2019s kind of a misnomer. With one interesting exception, a mine operator who talked about how they\u2019d improved mobile equipment safety with proximity-sensing technology, the program was mostly a bunch of lawyers talking about the latest in safety law.<\/p>\n\n\n\n

We had policy updates from the heads of the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration, we heard presentations on the new silica and mobile equipment rules, and we got in-depth (dare I say geeky?) analyses of the current state of the law on black lung claims and \u00a7 105(c) discrimination cases. The weather in D.C. was great and it was a good opportunity to connect with professional colleagues who represent the various players in the mining industry. Other than a truly terrible lunch in the Labor Department cafeteria (sorry, DOL!) it was an uplifting, interesting couple of days.<\/p>\n\n\n\n

But as good as the seminar was, it also left me feeling a little sad and frustrated, and that\u2019s what I\u2019d like to talk about today. Twice in two days, those of us who represent mine operators were confronted with what felt like outdated, cynical views of the industry as expressed by the government\u2019s lawyers. While those presentations sparked robust dialogue among the lawyers in the room, they also exposed the inescapable fact that when it comes to mine safety enforcement, the government and mine operators are still talking past each other. It pains me to say this, but what we heard from MSHA\u2019s lawyers last week demonstrated beyond any reasonable doubt that their approach has everything to do with rigorous enforcement and very little to do with actual mine safety.<\/p>\n\n\n\n

Here\u2019s an example. One of the panels was about motions to reopen penalty assessments that have become final orders of the Commission because the operator blew the 30 day deadline for sending in a contest. (I\u2019m not going to get into the weeds about how that works, but if you want to know more hit me up and I\u2019ll explain.) One case involved an operator who had to eat a $44,000 penalty because a new person in the mine office didn\u2019t know to send in the assessment sheet. The mine discovered the problem even before MSHA realized the payment was delinquent, and asked the Commission to reopen the case so they could mount a defense to the underlying citations. MSHA opposed the request, even though everyone agreed that there had been an honest mistake, that the operator had never made a mistake like that before and generally did not abuse the system, and that the error had been caught early, before MSHA even knew it had happened.<\/p>\n\n\n\n

Someone in the audience asked the MSHA lawyer what policy interest would be served by preventing the operator from getting its day in court, putting the alleged violations before a judge for a decision. The lawyer\u2019s response? That the public has an interest in getting penalties resolved promptly. (Oh, and before I forget: this statement came the very same day that participants learned that because of an internal administrative issue, MSHA has not sent out proposed penalty assessments for the last few months. \u201cInterest in getting penalties resolved promptly,\u201d indeed.)<\/p>\n\n\n\n

And another one. At the end of the seminar, we had the opportunity to hear an oral argument in an actual case under review by the Federal Mine Safety and Health Administration. The case arose out of a 2021 fatality. As a result of its investigation, MSHA issued four \u00a7104(d) citations to the mine operator and referred some or all of them to the Justice Department for criminal prosecution. The Justice Department opened an investigation. he company\u2019s managers refused to be witnesses in the civil penalty because they all feared they might be prosecuted and could potentially incriminate themselves. The operator asked the judge in the penalty case to stay the civil case, a move that has been the custom \u2013 and MSHA has agreed to \u2013 for many years.<\/p>\n\n\n\n

This time, and after initially agreeing, MSHA decided to oppose a stay and asked the Commission to order the judge to set the case for trial. The company argued that every one of its potential witnesses would assert their Fifth Amendment rights, leaving it with literally nobody to testify on its behalf. The government countered that since only people (not companies) have a privilege against self incrimination, the company\u2019s inability to find someone to testify should not stop the penalty case from moving forward. In response, the company pointed out that companies do have a constitutional right to due process of law, and that forcing them to trial without witnesses violated that due process right. In other words, the whole reason that operators have the ability to contest citations is that the government doesn\u2019t always get things right. That\u2019s why they\u2019re guaranteed the opportunity for a fair hearing before an impartial judge. Effectively echoing the government attorney from earlier in the conference, the government argued that the need to have the case resolved quickly, without waiting for the criminal cases to sort themselves out, outweighs the company\u2019s interest in being allowed a fair trial. There was a little more nuance than that, but you get the gist.<\/p>\n\n\n\n

So why did I walk away from the seminar frustrated and sad? Here were two instances where the companies only wanted to be able to tell their respective stories, to have the opportunity to air their defenses in full before an impartial administrative law judge. The stakes in each case are high for the operator, whether because of the pending unwarrantable failure allegations, the potential criminal exposure of company agents, or the threat of high penalties. The companies\u2019 positions seem pretty reasonable to me. Yet MSHA is so hellbent on extracting penalties from these two operators that it seems to have lost all perspective or any sense of fairness.<\/p>\n\n\n\n

Please don\u2019t get me wrong: I\u2019m not blaming the government\u2019s lawyers, and I\u2019d like to give them the benefit of the doubt by believing that they are only taking the positions their client is telling them to take. But I can\u2019t help but think that something is wrong here, where the purported interest of an impersonal government agency is being elevated over the legitimate concerns of real people about the fairness of the investigation, the proceedings, and the penalties imposed. (And who, I absolutely believe, genuinely care about the health and safety of their employees.) And it\u2019s not like the operators are trying to evade responsibility in either case: they only want to have their day in court.<\/p>\n\n\n\n

In an ideal world, MSHA would understand that both the government and mine operators are playing different roles but trying to get to the same place \u2013 mine safety and zero injuries. Nobody wants to see people hurt, and virtually every operator out there is working and committing resources toward that essential goal. Until MSHA gets that, and shows some respect to industry, we may be wasting time on procedural skirmishes and legal wrangling when we could be doing a better job by focusing on the actual safety part.<\/p>\n\n\n\n

Willa Perlmutter<\/em>
<\/strong>Willa Perlmutter is chair of Stoel Rives\u2019 OSHA group and co-chair of the firm\u2019s mining group. She can be reached at willa.perlmutter@stoel.com.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Willa B. Perlmutter So, last week I had the pleasure of attending a seminar put on by the Energy & Mineral Law Foundation at the U.S. Department of Labor in Washington, D.C. It was called a \u201csafety seminar,\u201d but that\u2019s kind of a misnomer. With one interesting exception, a mine operator who talked about how they\u2019d improved mobile equipment…<\/p>\n","protected":false},"author":7,"featured_media":4194,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_themeisle_gutenberg_block_has_review":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[6],"tags":[3436,236,1661],"coauthors":[1649],"class_list":["post-8980","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","tag-energy-mineral-law-foundation","tag-mine-safety-and-health-administration","tag-occupational-safety-and-health-administration"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t