Commission Sets Rule to Speed Mine Penalty Appeals

Wed, 12/29/2010 - 10:56

The Federal Mine Safety and Health Review Commission has finalized a rule to speed up certain legal proceedings brought under the Mine Act. In announcing the final rule Tuesday, the Commission said the intent is to deal with the burgeoning civil penalty caseload that has arisen since 2006.The rule, effective March 1, governs cases eligible for so-called simplified proceedings. It will be implemented as a pilot program for up to a year to determine its success in speeding cases compared to processing under conventional procedures. The pilot was suggested by one of 10 commenters to the Commission's proposed rule, which was released last May.
Cases eligible for simplified proceedings will not involve fatalities, injuries or illnesses; special assessments; complex issues of law or fact; legal issues only; or expert witnesses. Generally, simplified proceedings would include one or more of the following:
• only citations issued under Sec.104(a) of the Mine Act
• a limited number of citations and penalty amount
• a hearing of limited duration.
Proceedings eligible for the simplified process will have the following characteristics:
• answers to petitions for assessment of penalty are not required
• motions are eliminated to the greatest extent practicable
• early discussions among the parties and the judge are required to narrow and define disputes
• parties are not required to provide certain materials early in the proceedings
• discovery is not permitted except as ordered by the judge
• interlocutory appeals are not permitted
• hearings will be full due process proceedings. Oral arguments will be allowed as opposed to post-hearing briefs.
After a case has been designed for simplified proceedings, the opposing parties will have 45 calendar days to furnish information they may use to support claims or defenses, including, but not limited to, inspection notes from the entire inspection, rebuttal forms, citation documentation, narratives, photos, diagrams, pre-shift and on-shift reports, training documents, mine maps, witness statements, witness lists, and any written opinions of expert witnesses.
The presiding judge will then schedule a pre-hearing conference as soon as practicable. At the conference, subjects for discussion will be limited to settlement efforts, narrowing of issues, an agreed statement of issues and facts, defenses, witnesses and exhibits, motions and other pertinent matter. When the conference ends, the judge will issue an order setting forth any agreements reached and issues to be addressed at the hearing. The hearing will be held as soon as practicable, and the judge will issue a written decision within 60 calendar days.
The Commission is accepting written comments on the rule through Jan. 12, 2011.

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$afepro's Analysis

This appears to be another "MSHA sugar-coated snake oil pill" for the Industry to swallow allowing the Producer think that” My Savior Has Arrived" again bearing gifts! A few of the problems in this Rule are:

o It precludes discovery.

o Both sides will not provide documents for thr Operator's defense.

o The burden is upon the Mine Operator to produce documents.

o It bars all depositions without special permission from the judge.

o There is no formal written "discoveries notice"

o There will be no way to ask for any documents (i.e. former inspection reports) in helpful defense.

o It only applies to 104a citations. (The historical real-world solution by MSHA managers is to tell inspectors that they are to write as many 104d citations as necessary to reduce low fine paper.)

It will make legal defense more time-consuming and expensive for the Operator.