New SEC Rule Requires Disclosure of MSHA Enforcement Data
By Tina M. Stanczewski, Esq.
Law Office of Adele L. Abrams PC

On December 28, 2011, the Securities and Exchange Commission (SEC) published a new rule mandating publicly traded companies to disclose distinct safety enforcement information. Starting January 27, 2012, companies must report both quarterly and annually various information related to violations issued under the Mine Act by the Mine Safety and Health Administration (MSHA). This information includes (1) safety and health violations, issued as orders or citations by MSHA (2) related penalty assessments from MSHA (3) legal actions pending with the Federal Mine Safety and Health Review Commission (FMSHRC) and, (4) mine fatalities. Existing forms submitted to the SEC have been amended to include space and directions for providing this data.

The new disclosure requirement is in response to Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act to make a mine's MSHA safety record more transparent to investors. This rule applies to companies that file quarterly and annual reports with the SEC under Section 13(a) and 15(d) of the Securities and Exchange Act.

A publicly traded company who is an operator (which includes both production operators and independent contractors, as defined under the Mine Act) or that has a subsidiary who is an operator must report everything, even citations and orders that have been contested and are actively being litigated. Citations and orders that have been modified or vacated by MSHA or the FMSHRC must also be included. This means you must report everything as issued regardless of subsequent modification.

Specifically, operators must report, on a mine by mine basis, reports specifying the following:

• Citations and Orders
  • All Significant and Substantial 104(a) citations issued for violation of a mandatory health or safety standard.
  • All 104(b) orders issued.
  • All 104(d) citations and orders issued.
  • All 110(b)(2) flagrant violations issued.
  • All 107(a) imminent danger orders issued.
• Monetary Value of Proposed Assessments
  • This is the total proposed penalty for the categories of Citations and/or Orders listed above for the reporting period. For example, if you are issued ten 104(a) S&S citations during a specified quarter at $100.00 each, you would report $1,000.00.
• Pattern of Violations
  • Report any notices received from MSHA stating that the mine is on a pattern of violations or has the potential to have a pattern of violations under section 104(e) of the Mine Act.
• Pending Legal Actions
  • There are several requirements for reporting pending legal actions before the FMSHRC during a specified period.
  • Numerical data includes (1) the total number of legal actions pending before the FMSHRC on the last day of the reporting period, (2) aggregate number of legal actions instituted by the mine against MSHA during the period (3) aggregate number of legal actions resolved during reporting period.
  • The numerical data includes several categories:
    • Contests of citations and orders filed prior to receipt of the proposed penalty assessment, including imminent danger orders.
    • Emergency response plan dispute proceedings.
    • Contests of proposed penalties.
    • Section 105 actions including (1) complaints for compensation under Section 111 of the Mine Act, (2) complaints of discharge and related complaints, (3) discrimination proceedings, (4) temporary reinstatement proceedings, and (5) application for temporary relief
    • Appeals of judges' decisions or orders to the FMSHRC, including petitions for discretionary review and review by the FMSHRC on its own motion.
• Mining-related fatalities
  • "Non-chargeable" fatalities or ones determined by MSHA as being unrelated to mining (e.g., death by natural causes) may be excluded.

The SEC has established procedures and suggestions for reporting this data. First, a brief statement about the MSHA-related data should be included in the body of the periodic report. Second, an exhibit containing the specific information should be referenced and attached to the report. The SEC suggests using a tabular method to present the data. However, this is not a requirement. In addition, any issuance of a Section 107(a) imminent danger order or notification of pattern of violation or potential for pattern of violation requires the operator to file a Form 8-K within four days of the triggering event (issuance or notification).

Although this is publicly-available information via the MSHA Data Retrieval System, this rule imposes distinct requirements upon publicly traded companies that operate mines or provide services to mines that require a contractor ID. Therefore, a production operator is not required to report data for an independent contractor on the mine site, but an independent contractor who holds an MSHA identification number and files reports to the SEC under Section 13(a) and 15(d), will be required to report this data.

For more information, a review of your records, or to establish a compliance plan, please contact:

Law Office of Adele Abrams, P.C.
Tina Stanczewski, Esq.
4740 Corridor Place, Suite D
Beltsville, MD 20705
301-595-3520
tina.stanczewski@comcast.net

The Return of the MSHA Conference

On December 1, 2011, the Mine Safety & Health Administration (MSHA) announced that it would resume making pre-assessment conferences available to mine operators and contractors. The announcement came after completion of a pilot program, involving the Southeast Metal/Nonmetal District and two coal districts, which apparently was deemed a success. The pilot program that restored pre-penalty conferences was estimated to have reduced contested case rates in the affected districts by 17 percent. MSHA found that, during the pilot program, most contested citations that were eligible did not go through the conference process, but most of the alleged violations that were conferenced settled without a subsequent contest being filed. However, only 10 companies accounted for more than half of all contested citations. Most operators requested conferences, or contested citations/orders that were significant and substantial (S&S), or had high dollar penalties.

The data reviewing the pilot program showed that of citations issued in the subject districts, 21 percent were conferenced or contested and – of those – 26 percent were conferenced and 74 percent were contested without conference (even though conferences were available). Of those that were conferenced, 33 percent of the citations were still contested indicating that the desired relief was not obtained or that the operator elected not to fight the citations/orders any further. Perhaps the most significant statistic to come out of the pilot program analytical report was that, of the alleged violations that were conferenced, 65 percent were upheld "as issued," 29 percent were "modified" and only 6 percent were vacated. In the Southeast Metal/Nonmetal district, the rates were 77.1 percent "upheld," 15.3 percent were "modified" and 6.4 percent were vacated (another 1 percent were withdrawn instead). By comparison, only 42.2 percent of the citations conferenced in Coal District 2 were upheld as issued, 49 percent were modified and 8.4 percent were vacated

As most are aware, there is a tremendous backlog of contested cases at the Federal Mine Safety & Health Review Commission (FMSHRC): at its peak, the cases in the backlog totaled more than 19,000 with 89,000 citations/orders involved, although the backlogged case number has now dropped to around 17,000. However, there are still more than 69,000 citations/orders awaiting adjudication. A case can involve anywhere from one to 20 or more citations and orders. The contested citation/order rate jumped dramatically between 2007 and present, and the significant hike in maximum penalties from $70,000 to $220,000 (and elimination of the single $60 penalty for non-S&S citations) was a driving force in this development.

MSHA enforcement also became more aggressive during this period, spurred in part by the high-profile coal disasters at the Sago, Crandall Canyon and Upper Big Branch mines and the resulting attention from Congress that called MSHA a "toothless" agency. The rates of "unwarrantable failure" citations and orders climbed by about 60 percent in just a couple of years, and many more penalties were issued against individual salaried and hourly "agents of management" under Section 110(c) of the Mine Act. A few companies also began contesting nearly everything, out of concern for "pattern of violation" findings that are triggered, in part, by the raw numbers and rates of finally adjudicated citations and orders and the number of elevated actions (issued under Sections 104(d), 107(a), 104(b) and 104(g) of the Mine Act).

But a contributing factor to the backlog was the sudden elimination in March 2009 of the pre-assessment conference. Instead, MSHA began requiring operators to file a formal penalty contest in order to have a discussion with an MSHA representative – the "CLR" (conference & litigation representative for the district) or, for more serious cases involving Section 104(d) unwarrantable failure allegations or critical injury and fatality cases, the Solicitor (an attorney representing MSHA through the Office of the Solicitor within the US Department of Labor). When Congress held oversight hearings on the case backlog (and committed significant funds to its reduction by hiring more attorneys for the Solicitor's office and more judges for the FMSHRC), MSHA Assistant Secretary Joe Main also pledged a return to the pre-penalty conferences as part of the backlog reduction strategy.

For several years now, however, MSHA has still told operators that they must file a conference memo laying out their objections to the citations and their defenses within 10 days in order to discuss settlement, but those conference requests were put on hold until the penalties were formally contested. This was in part misleading because every judge issues a prehearing order in contested cases, directing MSHA to discuss settlement with the contesting operator – whether or not a "10 day memo" has been filed. Therefore, there is no statutory prerequisite that requires such a memo in order to dispute citations. Moreover, some operators have been mislead – to their detriment – into thinking that filing a conference memo with the district offices serves to "contest" the citation. It does not. The only ways to legally contest a citation/order are to file a "Notice of Contest" with the FMSHRC within 30 days of issuance OR to file a contest with MSHA to the proposed penalties within 30 days after they are received (using the form that is FedEx'd to operators showing the penalties). Note that even if it has filed an initial Notice of Contest, the operator must still contest the penalties – it is a two-step process.

According to MSHA's latest announcement, beginning in January 2012, a mine operator (including contractors) or a miner's representative may request a conference by filing a conference memo requesting a pre-assessment conference. The memo must still be filed with the district office within the first 10 days. It is up to each individual district to determine when to implement the procedures, based on its available resources, so this option may not be available initially in all areas. But the move has been praised by the National Stone, Sand & Gravel Association, which noted that "MSHA can spend time more appropriately on improving workforce safety and health rather than see that time and limited resources evaporate in unnecessary, prolonged and costly disputes."

So, the return of the pre-assessment conference is a good thing … or is it? There are some pitfalls that operators must bear in mind if they embark down this path. As noted above, one of the problems is confusion that this is a substitute for a formal conference. It is not and proper procedures must be followed. Therefore, even if a pre-penalty conference is held, if the results are not satisfactory, the operator still has the right to contest the citations but must formally do so by contesting the penalties within 30 days of when they are proposed.

One of the biggest problems is that the pre-assessment conference is not a "settlement conference" (and even the pilot program made that clear in its guidelines). Why is this important? Because information provided during "settlement conferences" held after a matter is in litigation are inadmissible in court, whereas the same information presented to MSHA before a Notice of Contest or penalty contest is filed is pre-litigation and, therefore, all the information is admissible against the mine operator in court.

This can be significant, as well, because after review information presented in conference, MSHA can make citations/orders worse as well as modifying them in a way favorable to the operator (or vacating them, which rarely happened during the pilot program). In several cases where operators held conferences, they went into it with a Section 104(a) "moderate" negligence citation and came out with a Section 104(d) "unwarrantable failure" instead because what they thought was mitigating information was viewed by MSHA as incriminating admissions.

Another pitfall in the pre-litigation conference is that it is one-way communication. In the pilot program, MSHA made it clear that any pre-penalty conferences would be an opportunity for the operator to present its information to MSHA … but MSHA would not share its case file with the operator. Since these are done typically soon after the inspection concludes, there is not time to file a Freedom of Information Act (FOIA) request to obtain the case file (MSHA has 20 business days to respond to a FOIA request but often takes longer than this). Therefore, an operator may agree to accept a citation or order, not realizing that there is exculpatory information in the MSHA inspection notes or photographs.

Operators also typically do these conferences pro se (without counsel involvement) and this means that most discussions are limited to factual disputes, rather than raising legal arguments that might be successful if made to a solicitor later on in the process. MSHA has said in its pilot program that it does not plan to entertain legal arguments at this stage of proceedings. However, this often results in a citation that should be vacated being sustained because the proper legal arguments cannot be made in this forum. Similarly, operators may go in and argument "this should be moderate, not high, negligence" or "this should be unlikely, instead of reasonably likely gravity … or should be lost workdays instead of fatal."

uch arguments have the effect, however, of serving as an admission that a violation occurred: all that is being disputed is how it was classified. If, later on, a legal or factual argument is discovered that would warrant vacating the citation, the operator may be precluded from raising it since the earlier admission against interest would be admissible at trial. The conference memos that MSHA receives, as well as any documentary evidence obtained from the mine operator, are all available to the solicitor's office (as well as MSHA notes on what was said by the operator) so this serves as one-way free discovery for the government.

Significantly, if a Section 104(d) citation/order is being conferenced, any individual(s) who could be targets for related Section 110 prosecutions should not talk to MSHA about the alleged violations, since any statements made can be used to prosecute that person civilly or criminally in the event that the Section 104(d) citation/order is not vacated or modified down to a Section 104(a) post-conference.

Finally, remember that operators are permitted to have legal counsel participate in the pre-assessment conferences. Moreover, if the operator does not get the relief requested during the pre-assessment conference, that is not the end of the story: the legal options to formally contest the alleged violations remain available. In the pilot program, some operators were mislead on this point, and came away feeling that by electing the informal conference, they had waived the right to a hearing. That is not the case and due process remains available. The operator can still obtain discovery from MSHA through the appropriate procedures (or a FOIA) and can still tell its side of the story to a judge in the event that the case does not settlement before trial through negotiations with a CLR or solicitor. Good luck!

Part 50 Audits: How to Prepare

In the course of inspections, investigations, and Part 50 audits, it is not uncommon for the Mine Safety and Health Administration (“MSHA”) to seek documents and information from the mine operator. There are a number of competing considerations for mine operators to consider before turning over requested documents and information. While it is in the best interest of the operator to maintain a cooperative relationship with the agency, at times there may be other important interests at stake, such as employee privacy and confidential business information.

The Mine Act and regulations require mine operators to keep certain documents, and these documents must be made available to MSHA upon request. Of course, in preparing for a Part 50 audit, the first step, and best preparatory action, is to have your documents ready and up-to-date. Many times these audits can go smoothly, but operators have increasingly been subjected to document requests above and beyond the documents required to be kept under Part 50 and other regulations under the Mine Act. Operators need to be prepared for these requests and how to deal with them.

It is now well established that business records and other documents, which are maintained pursuant to the Mine Act, are appropriate targets for review by inspectors. United States v. Consolidation Coal Co., 560 F.2d 214, 218 (6th Cir. 1977), vacated and remanded, 436 U.S. 942 (1978), judgment reinstated, 579 F.2d 1011 (6th Cir. 1978) (emphasis added).

What about records that are not maintained pursuant to the Mine Act? Legally, there are limits on MSHA’s power to demand records be turned over. Part 50 provides that MSHA shall have the right to inspect and copy information it considers relevant and necessary to verify a § 50.11 report or relevant to a determination of compliance with the reporting requirements of Part 50. 30 C.F.R. § 50.41. Although this regulation would seem to give MSHA almost unbridled discretion in reviewing an operator’s records, the Agency has traditionally followed the Sewell Coal decision when record demands are challenged.

In Sewell Coal Co., 1 FMSHRC 864 (1979), the issue was whether the Secretary was authorized, without obtaining a warrant, to examine a mine operator’s personnel records which contained information both related and not related to reporting requirements under Part 50. Recognizing that the Mine Act “does not authorize wholesale warrantless, non-consensual searches of files and records in a mine office,” then-Chief Administrative Law Judge Broderick held:

I conclude that 30 C.F.R. § 50.41 does not authorize the Secretary to inspect without a warrant . . . personnel files containing medical and other information, some related and some unrelated to accidents, injuries, illnesses reportable under Part 50, or to compliance with Part 50. It follows that the regulation does not empower the Secretary to copy from these records without a warrant, information relevant and necessary to the issue of . . . [compliance] with the injury and illness reporting requirements as Part 50.

Sewell Coal, 1 FMSHRC at 2119.

In a later decision, the Review Commission found that personal employee information essential to MSHA’s investigation of a fatal accident must be provided upon request. BHP Copper Inc., 21 FMSHRC 758 (1999). The Commission has held that the Secretary’s authority is not without limits and Section 103(a) of the Mine Act “limits the Secretary’s investigative authority to obtaining, utilizing, and disseminating information relating to… the causes of accidents.” BHP Copper, 21 FMSHRC at 767.

In a recent case regarding the production of documents as part of investigation into a miner’s discrimination claim under § 105(c) of the Mine Act, Judge Barbour raised the issue of whether MSHA had placed an “unreasonable burden” upon the mine operator by requesting certain employment documents as part of a discrimination investigation. Hopkins County Coal, LLC v. Secretary of Labor, 31 FMSHRC 481 (ALJ 2009). The judge stated, “[T]he Secretary’s investigation must be reasonable, and part of being ‘reasonable’ when requesting materials is to make sure that which is sought is clearly described.” Based upon the holding in Hopkins County Coal, it is also reasonable for an operator to ask MSHA to put its request for documents in writing, and also request that the scope be sufficiently limited so that it is clearly described and does not place an unreasonable burden on the operator.

In addition to its investigation of accidents, MSHA can make requests and demands for a broad range of company records during Part 50 audits. Records that may be requested by MSHA inspectors include: (1) injury and illness-related documents, including workers’ compensation records, insurance forms, and medical reports; (2) personnel records; (3) supervisory reports of accidents and incidents, and safety department audits or evaluations; and (4) operation records, including production reports, progress reports, maintenance records, equipment manuals, equipment purchase orders, mine policy or procedural memoranda, and mine logs or summary books used for shift-to-shift communication. Many of these records are written with an expectation of privacy by management officials in an effort to analyze the cause of an event and/or prevent its recurrence. Unfortunately, in the hands of a federal inspector, some records may become powerful tools which can be utilized to support allegations against the company or individual managers.

MSHA may argue that certain records, such as workers’ compensation records, are relevant and necessary to an accident investigation under 30 C.F.R. § 50.41. If an operator refuses to produce the records, MSHA may assert that the operator is interfering with an inspection under § 103(a) or seek a court order for the records under § 108(a). The range of documents which an operator could be required to produce in the face of a court order is virtually limitless if relevant to the inquiry and not privileged. The validity of a court order for any particular record, however, is fact-specific and would have to be made on a case-by-case basis.

In attempting to come to an agreement with MSHA regarding the disclosure of information and records which are not specifically required under the Mine Act, operators may need to consider methods to comply with MSHA’s request while protecting sensitive information. If MSHA is requesting private employee information, perhaps the operator can get employee consent to disclosure. If the issue is protection of confidential business information, the operator should seek an agreement with the government to limit disclosure of the information or to limit MSHA’s use of the information to narrow circumstances.

If an operator does not want to voluntarily supply documents and information to the extent of MSHA’s request, it may be possible to negotiate to comply with the document request by limiting the scope of the material provided. Other possibilities in attempting to comply with MSHA’s request of materials beyond what is required under the Mine Act and regulations include providing redacted materials or creating an additional document compiling the requested information as a way to limit overall disclosure.

Inspection Conduct

It is no secret that mine site inspections by the Mine Safety & Health Administration (MSHA) have gotten more challenging in recent years. Spurred on by Congress’ increase in maximum civil penalties and oversight hearings that called on the agency to crack down on “scofflaw mine operators,” MSHA inspectors are writing increasing numbers of high negligence, high gravity citations. This, in turn, has triggered more special investigations for the purpose of initiating civil (or criminal) prosecutions against agents of mine management. Such agents include both salaried and hourly employees, and the scope covers everyone from supervisors and foremen to blasters-in-charge and even those who simply conduct the mandatory workplace examinations.

What can mine operators do to protect themselves from liability during MSHA inspections and investigations, and to avoid costly citations that can reach $220,000 each? Clearly, the easiest citation to defend is the one that is never written. Although there currently seems to be pressure on inspectors to ensure that no inspection is citation-free, there are techniques that can be used to minimize exposure or at least create a good record during the inspection that will help support defensive strategies in the event that citations are issued.

The following are some suggestions and things to bear in mind when trying to successfully manage MSHA inspections:

• Everything you say is “on the record” and can be used against you in a court of law. Statements admitting knowledge of an existing allegedly violative condition by “agents of management” will be imputed to management and will be classified as “unwarrantable failure” citations/orders under Section 104(d) of the Mine Act. You are not required to answer questions from an inspector. You are not required to speculate how long a condition existed, or to guess at the size or distance of some mine condition. If the truth will not set you free, be quiet. But whatever you do, don't lie as that provides a separate basis for criminal prosecution. Also, do not sign any statements unless they have been reviewed by counsel or someone who understands how MSHA might use the writing against you in future litigation.
• Agents will be held to a higher standard. Agent actions that violate standards (e.g., a foreman caught not using fall protection where there is a danger of falling, or not wearing a seat belt while operating mobile equipment) will also be classified as Section 104(d), and will result in personal civil penalties under Section 110(c) of the Mine Act of up to $70,000 per citation.
• Know your history of violations. It is important to check MSHA’s data retrieval system or use another method to keep score of what standards your mine has been found guilty of violating in the past (24 months for “pattern of violation” purposes; 15 months for “repeat” or “history of violation” penalty points). Even citations that have not yet become finalized (and are still under contest) may be used by inspectors in subsequent inspections to claim that the mine was “on notice” that it had problems complying with certain rules (e.g., housekeeping, guards, equipment defects). Increasingly, such history alone is being used to support “unwarrantable failure” allegations. Therefore, past citations should put an operator on notice of conditions that deserve greater diligence in terms of ensuring compliance. These are the first things the inspector will look for; you should get there first and fix any substandard conditions.
• FOIA yourself. This means file periodic Freedom of Information Act requests to get the inspector field notes and photographs from prior inspections. These can be very useful in supporting “fair notice/due process” defenses (e.g., if prior inspectors inspected equipment and did not find conditions to be a violation – such as the type of guarding provided – this can be raised to argue that the operator was not on notice that he was out of compliance). The FOIA file will often contain photographs that document what MSHA accepted to abate previous citations, and if MSHA accepts something to terminate a citation, the agency is not supposed to cite it again. The FOIA information will also help you track who visited the mine in previous years, and these inspectors may be able to be subpoenaed as witnesses for your company, if needed at trial. Most importantly, FOIA files contain the inspector’s field notes, and these can be useful training tools to help supervisors and other miners understand what the inspector considers important enough to write down, and enables them to see the mine through an inspector’s eyes.
• Know the law. Anyone who will represent the mine operator during an inspection will be considered an agent of management, and should be thoroughly trained on what standards actually require and what exceptions may be provided through MSHA policy, bulletins etc. If the 30 CFR book is the “bible” for guiding you through inspections, the MSHA Program Policy Manual is the “Cliff’s Notes” that explains the intent and interpretation of many standards.
• There is danger in document requests. If an inspector asks the company to produce documents during an inspection, ask what standard requires it before immediately handing over paperwork. Look up the standard and, if there is one that says “a record shall be kept and made available to an authorized representative of the Secretary,” that is a sure sign it is a mandatory document and you need to immediately produce it. Examples are training plans, records, hazcom programs, hearing conservation programs, and workplace examination reports. If the inspector cannot point to a specific standard, then ask him/her to provide a list of non-mandatory documents that are requested, and then carefully review the documents before deciding whether to voluntarily produce them. Sometimes inspectors will threaten to issue citations under Section 103(a) for “impeding an investigation” if you refuse to produce such documents, but they rarely carry through with the threats. Of late, some requests have been made under threat of a federal injunction (citing Section 108(a)(1)(E) of the Mine Act), but it is extremely rare that MSHA will go to the trouble of seeking a federal court order during a routine inspection. Understand that even documents you may think are harmless can be used to support very high negligence citations. Examples include work orders and purchase requests (used to show how long an equipment defect existed and who in the chain of command was aware of it), worker’s comp reports (which may describe accidents in terms that admit violations), and Job Safety Analysis forms (which may inadvertently omit necessary safety measures and can be used to show a “practice” of unsafe behavior or, in the alternative, a finding that task training was inadequate).
• Don’t do demonstrations. MSHA is not supposed to direct your workforce, nor interfere with normal production activities. If equipment is not in use or operating – including conveyors, haulage equipment, crushers etc. – you are not legally required to “start ‘em up” simply because the inspector tells you to. The inspector can, of course, visually inspect such equipment and cite it if any problems are found. But if equipment would not normally be used on a shift, you are not required to place into service and divert a miner from other assigned duties to do so. If you do start up equipment for the first time during a day while the inspector is present, don’t forget to do the preshift examination and – if any defects are discovered – immediately tag it out. Some operators tag all parked equipment with warnings that defects are to be presumed to exist until a preshift shows that the equipment is safe to operate. This does make it more difficult for MSHA to sustain citations for defective equipment that it considered to be “on the ready line” but which was not actually being used during a shift.
• Don’t play games with health samples (or let MSHA do so). If a health inspection is occurring, the inspector is not supposed to tell a miner to do a particular task for a longer or shorter duration than would normally occur. This does happen, with the goal of getting higher noise or dust samples, by keeping the worker cutting granite or working near loud equipment for longer durations. Note that you also should not have the worker deviate from routine schedules in order to lessen exposure. Fair is fair.
• Watch out for the walkaround. If the inspector takes measurements, you take measurements. If he takes photos, you take photos. If he takes notes, you take notes (and make note of which miners are interviewed in case they need to be debriefed later on). But don’t simply take photos that document violations. Try to show the scene from a different angle, show how the inspector’s photos distort the truth, and get the inspector in the photos so it is clear that they were taken on the same day as the agency inspection. You do not have to help MSHA measure equipment and do not have to lend tools or tape measures. Your notes should include what the inspector says in praise of the mine, as well as things that the inspector wants corrected. Do not consent to be audiotaped and, if the inspector is using a video camera, remember that these devices have an audio track and any comments you make will be recorded for posterity.
• Caution is needed at the closeout. Many operators are not aware that MSHA can make citations worse at the closeout. Arguing with the inspector (e.g., endorsing a practice that has been cited by saying “I’ve done that for years”) will often result in a Section 104(a) moderate negligence citation turning into a 104(d) high negligence citations … with a personal fine against the mine operator’s rep (who, by definition, is considered an agent of management). On the other hand, do not agree with the inspector that a violation exists. You haven’t had time yet to do research in order to discover whether there are legal defenses. If you don’t object to a citation, the agency may try to claim at a hearing that this constituted admission, but the judges have rejected this approach. The best thing to do is simply accept the citations and let the inspector know that, if you disagree with them after further review, you will timely contest them. That way, you have preserved all options.
• Address abatement quickly. These days, MSHA is often giving short amounts of time to abate alleged violations (and abatement is required even if a contest is filed, in most instances). What might be reasonable for a single cited condition to be corrected may be infeasible if a mine gets 20 citations at once. If parts need to be ordered, or an engineer’s services need to be procured, more time than a few hours will be required. Let the inspector know immediately if you cannot correct the condition within the period allotted on the citation, and get it extended ASAP. If the inspector will not be reasonable, call the field office, or district office as needed. If abatement will be costly or infeasible, and you believe the citation is not valid, this may require filing an immediate notice of contest and request for expedited hearing. If this is granted, the judge will normally ask MSHA to stay abatement until a trial can occur (perhaps as quickly as within a week of the citation’s issuance).

For more information on how to address citations or inspection issues, contact Adele Abrams at 301-595-3520 or write to: safetylawyer@aol.com.