{"id":9344,"date":"2025-01-02T20:19:20","date_gmt":"2025-01-02T20:19:20","guid":{"rendered":"https:\/\/northamericanmining.com\/?p=9344"},"modified":"2025-01-02T20:21:09","modified_gmt":"2025-01-02T20:21:09","slug":"so-you-got-some-bad-paper-now-what","status":"publish","type":"post","link":"https:\/\/northamericanmining.com\/index.php\/2025\/01\/02\/so-you-got-some-bad-paper-now-what\/","title":{"rendered":"So you got some bad paper. Now what?"},"content":{"rendered":"\n

This month, I want to go back to basics and talk about the process and considerations that might drive a mine operator\u2019s decision to challenge an MSHA citation or order. As you know, the Mine Act requires an inspector to issue a citation or order if he believes an operator \u201chas violated this Act, or any mandatory health or safety standard, rule, order or regulation.\u201d<\/p>\n\n\n\n

Let me say that again: MSHA is required to issue paper if the inspector \u201cbelieves\u201d there\u2019s been a violation. (Let\u2019s just simplify this. From now on, when I say \u201ccitation,\u201d you can assume I mean \u201ccitations or orders\u201d unless I say otherwise.) Under the language of the Act, the inspector has no discretion about whether to write paper. If he thinks you violated a reg, you\u2019re going to get cited. You just are.<\/p>\n\n\n\n

That doesn\u2019t mean, though, that if a citation is issued you have to just roll over and pay the proposed penalty. Built right into the Mine Act is a framework that accords operators contest rights. Under \u00a7 105(d), and within 30 days of receipt, the operator can contest (among other things) the issuance or modification of a citation, a proposed penalty, or the reasonableness of an abatement deadline set by the inspector.<\/p>\n\n\n\n

Let\u2019s unpack that a little further. By setting it up that way, the Mine Act actually gives operators two separate avenues for contests. An operator can contest a citation when it first comes out, or they can wait until the penalty is assessed and then contest the penalty. I\u2019m going to call those, respectively, \u201ccitation contests\u201d and \u201cpenalty contests.\u201d (Still with me? Good.)<\/p>\n\n\n

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Photo: MSHA<\/em><\/figcaption><\/figure>\n\n\n

For citation contests, the proceedings are governed by the rules of the Federal Mine Safety and Health Review Commission, or FMSHRC. The rules are at 29 C.F.R. Part 2700, Subpart B. You have to contest within 30 days of receiving the cation \u2013 but note that the 30-day clock restarts every time MSHA modifies the citation. (Which means that sometimes, if time is about to run out, you can buy additional time by getting MSHA to modify a citation.)<\/p>\n\n\n\n

You begin the citation contest by filing a Notice of Contest with the lawyers at the Labor Department. A copy goes to FMSHRC as well. (Remember to include a copy of the citation when you send in the Notice of Contest.) In a citation contest, you can challenge the fact of the violation and\/or the special findings, like negligence, gravity, or a claim of unwarrantable failure.<\/p>\n\n\n\n

Let\u2019s put a pin in citation contests for a minute and look at penalty contests. The rules for those are also at 29 C.F.R. Part 270, but this time Subpart C controls. Penalty contests work a little differently. You get a notice of proposed penalty from MSHA on a printed form with boxes to check. You then have 30 days to notify MSHA (not its lawyers) that you intend to contest the penalty.<\/p>\n\n\n\n

This is important: if you do not contest the proposed penalty within 30 days, it becomes a final order of FMSHRC and then you\u2019re stuck. You\u2019ve pretty must lost the ability to fight the penalty. (You can ask FMSHRC to reopen the case, but that\u2019s not a guaranteed bet. The best practice is not to miss the deadline in the first place.)<\/p>\n\n\n\n

It\u2019s pretty easy to send in the contest form, as MSHA now lets you do that by email. After you send in the contest form, MSHA has 45 days to file a petition for assessment of civil penalty with FMSHRC. You have to file an answer to the petition within 30 days. In a penalty contest, you can challenge everything: the fact of violation, the special findings, and the amount of the penalty.<\/p>\n\n\n\n

But here\u2019s the important point: even if you contest a citation within 30 days of getting it, you still have to contest the penalty when it comes out. You can contest the penalty without having first contested the citation, but if you only contest the citation and not the penalty, the proposed penalty will become a final order of FMSHRC and you might as well not bother to fight the citation. What this means is that if you\u2019re not sure whether you want to move forward with a contest, you can wait to see what penalty MSHA proposes and make your decision then.<\/p>\n\n\n\n

Which begs the question, why would you bother contesting a citation at all? Well, to be honest, most of the time you wouldn\u2019t. It\u2019s kind of a bother, and if you keep contesting citations as soon as they\u2019re issued, it\u2019s going to hurt your credibility with MSHA. But there are some circumstances under which you definitely should consider contesting a citation or order without waiting for a penalty.<\/p>\n\n\n\n

For example, some kinds of paper never get assessed a penalty. I\u2019m thinking here about accident control orders under \u00a7 103(k) of the Mine Act and abatement times under \u00a7 104(a). Since you\u2019ll never have the opportunity for a penalty contest, if you want to challenge the order (or abatement deadline) you need to do it within the first 30 days. The same is true for a \u00a7 107(a) imminent danger order. If you get one that comes with a related citation, you can challenge the facts underlying the imminent danger order but once the 30 days have run you can\u2019t challenge the order itself and you\u2019ll be out of luck.<\/p>\n\n\n\n

Another circumstance under which you might want to file a citation contest without waiting for the penalty is when you get paper issued pursuant to \u00a7 104(d) of the Mine Act. (Quick review: remember that once you get a \u00a7 104(d) citation, you\u2019ll be on the (d) chain and every subsequent unwarrantable failure allegation will turn into a closure order.) You should consider contesting the first \u00a7 104(d) citation quickly, so as to break the (d) chain if you possibly can.<\/p>\n\n\n\n

So, I\u2019ve given you the mechanics of how and when to contest a citation or a penalty. There\u2019s another avenue that might prove useful, particularly for citations that are less serious (whatever that means to you) and where you believe you have a good case to make, either about the fact of the violation or about the special findings.<\/p>\n\n\n\n

You can request an informal contest under the procedures set out in 30 C.F.R. \u00a7 100.6. You have to make the request, in writing, to the district manager within 10 days of getting the citation. You have to tell them what you want to contest. The district manager has discretion over whether to give you a conference, but anecdotally, it seems that they are getting granted more frequently. At the conference, you\u2019ll have be able to submit any relevant information to support your request to get the citation modified or vacated. They don\u2019t always work, because the district manager or the conference and litigation reps that sometimes conduct conferences have a natural tendency to back up the inspector, but a conference can be the most efficient way of dealing with an inspector\u2019s misunderstanding of the facts or of the application of the regulations to your operation.<\/p>\n\n\n\n

All this is a long way of saying what I said at the outset. If you receive paper that just doesn\u2019t sit right for whatever reason, there are procedures in place to ensure that you get a fair opportunity to push back at the agency. They\u2019re complicated, but not hard to figure out, and you should use them.<\/p>\n\n\n

\"\"<\/p>\n\n\n

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

This month, I want to go back to basics and talk about the process and considerations that might drive a mine operator\u2019s decision to challenge an MSHA citation or order. As you know, the Mine Act requires an inspector to issue a citation or order if he believes an operator \u201chas violated this Act, or any mandatory health or safety…<\/p>\n","protected":false},"author":7,"featured_media":9346,"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":[158,426],"coauthors":[1649],"class_list":["post-9344","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","tag-msha","tag-osha"],"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