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How Useful Are MSHA's Conferences? Since 2005 (the safest year on record) citation numbers gave increased by 55%. Add to this mega fines ($220,000) for flagrant violations. History of violations has become extremely important since 25 points can be added to a penalty calculation for History and more points for repeat violations. Large and small Companies have been affected. Small wonder that MSHA became overwhelmed with conference requests since 2006. No less surprising is that formal litigation has skyrocketed, and this situation was intensified when MSHA started refusing to hold conferences. Since MSHA is clearly not planning to reduce penalties or enforcement (or improve the constitutional quality of their inspectors' enforcement), the case load will continue to be huge, resulting in continued swamping of MSHA's conference officers, attorneys and the Federal Mine Safety and Health Commission. In effect, informal conferences are gone. In the latest "Procedure Instruction Letter" MSHA has stated, "District Managers and Conference and Litigation Representatives (CLRs) have discretion regarding the timing of safety and health conferences and are encouraged to defer conferences until after civil penalties have been proposed and timely contested". Factually, "informal conferences" have been replaced by "formal litigation"! In short form, it works like this. 1. MSHA will assess all citations immediately. 2. The Operator must "contest the civil penalties" for all disputed citations. 3. MSHA will assign a conference and litigation representative (CLR). 4. The CLR will ask the commission to allow 90 days for a conference 5. If settlement is reached, the CLR will file papers seeking commission approval. 6. If there is no settlement, the case will proceed with the CLR or an attorney. It seems like MSHA wants to make deals to close cases. How does this ensure that the government is always acting responsibly and fairly? MSHA's goal is a thousand miles away from the Operator's. MSHA wants to control the unintended high level if litigation that was inevitably the consequence of the present elevated penalties and "slapstick" enforcement! You can see the Procedure Instruction Letter at http://www.msha.gov/regs/complian/PILS/2009/PIL09-III-3.asp. Formal Contestment Procedures and techniques to counter and reverse "shoddy enforcement" will be taught at the Feb. 8-12, 2009 MS&H Law Institute. Register at Feb. 2010 MS&H Law Institute.
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