Conference/Litigation Representative (CLR)

For many years, Operators have called their Regional MSHA offices to informally conference citations/orders which they have felt were not legitimate. This worked very well for many firms. However since August 2001 most District Offices have in place CLRs ( hearing officers)  who hear most formal and informal contestments. 

You must be aware that even though you feel you are talking to a person with whom you feel you  have a "good relationship"; you are talking to a government agent who is neither your friend nor your enemy. He is in his job to protect the interests of MSHA. You will not talk with the District Manager! To quote MSHA Fact Sheet 95-9 Alternative Case Resolution Initiative (ACRI):

"Due to the thousands of enforcement actions each year, mine operators have frequently requested formal hearings and have also sought informal resolution of questions regarding citations and orders. MSHA, in cooperation with the Office of the Solicitor, developed the Alternative Case Resolution Initiative (ACRI) to meet this need in 1994. The ACRI program created the position of Conference/Litigation Representative (CLR). The CLRs are primarily experienced mine inspectors who are trained in classroom and courtroom settings to represent the Secretary of Labor in contested cases. Once their proficiency is demonstrated, they process cases that do not involve civil penalties in excess of $2,500 or complex legal issues. The CLRs are authorized to negotiate prehearing settlements with the mine operators and to represent MSHA in hearings."

"As of August 30, 2001, MSHA has trained over 100 enforcement personnel to act as CLRs for the ACRI program and there are CLRs designated in each MSHA district office. The CLRs are currently responsible for processing approximately 35 percent of the total number of cases contested by mine operators."

Our experience with unsatisfactory conferences on the part of $afepro, inc. clients has led us to advise firms to formally contest S&S citation and orders (particularly those with High Negligence) directly to the MSH Review Commission to ensure a fair and equitable hearing. This must be done by letter (strongly recommend certified mail, signed for, and with a return receipt) to the Commission and copy to the Office of the Solicitor.

Once this is done you can proceed with you informal hearing and will have a formal recourse if the hearing is unsatisfactory. You are entitled to formal contestment by Sec. 105(d) of the Mine Safety and Health Act of 1977. Below is the applicable section and the address to which to send your notice of contestment.

"105(d) Handling of Contests of Citations and Orders (This is Formal Contestment)
Section 105(d) of the Act provides that amine operator is to notify the Secretary if he or she intends to contest a citation, order, or proposed assessment, or to contest the reasonableness of the length of abatement time. The Secretary, in turn, is then required to immediately advise the Commission of such notification.

Mine operators who wish to contest citations or orders within 30 days of issuance of such citations or orders should mail their notification of intent to contest directly to the Mine Safety and Health Review Commission, 601 New Jersey Avenue, N.W., Washington, D.C. 20001, 202-434-9900, email address is: info@fmshrc.gov (see 29 CFR 2700.18(b)), and mail a copy to the Office of the Solicitor, Division of Mine Safety and Health (MSH), 22nd floor, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939

 In addition, a copy should be given to all known representatives of miners at the affected mine."

There is a good business reason for doing this!

This is the e-mail reply to the CLR proposition from Adele Abrams, Esquire:

"An interesting observation of mine is that with the new "informal conference" process (having one CLR in each District handling all conferences), you often end up having the SAME person acting as CLR representing MSHA if the case is referred to ACRI. And, of course, if you are in litigation, it is because he/she hasn't bought your argument to begin with! Further complicating matters is that, if a case goes to trial, often you would want to depose the "conference" rep or at least call as a hostile witness as to what the agency's position was. You can't do that if he/she is also the agency's "attorney."

I just raised this point today in a speech I gave to the Energy and Mineral Law Foundation. If you would like more information, call me!

Thanks,

Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
301-595-3520 telephone
301-595-3525 facsimile
www.safety-law.com

 

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