1. Participation in Safety Conferences vs. Litigation
Presented by:
Donna Pryor
Mark Savit

2. Why do you want to contest or conference a citation?
It’s not fair
The inspector made me mad/upset
It’s been like that forever
Cost of abatement

3. Be organized How good are your notes?
Do you have photos, measurements and/or witness statements to support your case?
Have you looked up case law on the FMSHRC website?
Have you looked up the PPM, MSHA handbooks, and any policy statements or bulletins on the regs at issue?

4. Reviewing the Cases
FMSHRC website

5. MSHA is a strict liability statute

6. Three Critical Questions for Every Citation/Order
Is there a violation of a regulation?
2) Is the violation “Significant & Substantial?”
3) What is the degree of negligence or guilt?

7. NOTHING IS SET IN STONE

10. Negligence or Degree of Guilt
Action or involvement of management personnel?
Did management observe, direct or approve of the action?
Should management have known?

11. Analysis of Negligence or Degree of Guilt
Mitigating circumstances
Violation not pre identified – e.g. pre-shift
Prior inspectors approval
Company rules prohibiting the violation
Employee discipline for rule violations
Unforeseeable employee misconduct
Was there a reason to know? Direct Observation?
Communication or complaint about the condition?

12. Modification Scenarios
The horn was not working, but we can show that the operator fixed it that morning after it was noted on the pre-shift report.
Order/
Citation
Company Size Points
History points
Repeat Violation Points
Negligence points
Likelihood of occurrence
Severity of injury
Number of persons affected
Lack of good faith
Total
Penalty Amount
Penalty after 10% reduction
Assessed: 24 5 35 40 20 18
142
$68,300.00
$61,470.00
Proposed: 10
112
$8,169.00
$7,352.00

13. Significant & Substantial
For an S&S violation, MSHA must prove:
the underlying violation;
a discrete safety hazard, that is a measure of danger to safety, to which the violation contributed;
a reasonable likelihood that the hazard contributed to will result in an injury; and
a reasonable likelihood that the injury in question will be of a reasonably serious nature.

14. Significant & Substantial
“Could” and “Might” do not mean “reasonably likely.”

15. The compactor was being operated in an area surrounded on three sides by a chain link fence and on the fourth by a tailings impoundment. Signs were posted to keep individuals out of the area.
Order/
Citation
Company Size Points
History points
Repeat Violation Points
Negligence points
Likelihood of occurrence
Severity of injury
Number of persons affected
Lack of good faith
Total
Penalty Amount
Penalty after 10% reduction
Assessed: 24 5 35 40 20 18
142
$68,300.00
$61,470.00
Proposed: 10
112
$8,169.00
$7,352.00

16. And, we don’t think this would result in a fatal accident, so what if we get the severity reduced from fatal to lost workdays or restricted duty?
Order/
Citation
Company Size Points
History points
Repeat Violation Points
Negligence points
Likelihood of occurrence
Severity of injury
Number of persons affected
Lack of good faith
Total
Penalty Amount
Penalty after 10% reduction
Assessed: 24 5 35 40 20 18
142
$68,300.00
$61,470.00
Proposed:
127
$27,121.00
$24,408.00

17. Additionally, there were only three people arguably affected by the alleged violation.
Order/
Citation
Company Size Points
History points
Repeat Violation Points
Negligence points
Likelihood of occurrence
Severity of injury
Number of persons affected
Lack of good faith
Total
Penalty Amount
Penalty after 10% reduction
Assessed: 24 5 35 40 20 18
142
$68,300.00
$61,470.00
Proposed: 4
128
$29,380.00
$26,442.00

18. Here’s what would happen if MSHA accepted all of your proposed modifications . . .
Order/
Citation
Company Size Points
History points
Repeat Violation Points
Negligence points
Likelihood of occurrence
Severity of injury
Number of persons affected
Lack of good faith
Total
Penalty Amount
Penalty after 10% reduction
Assessed: 24 5 35 40 20 18
142
$68,300.00
$61,470.00
Proposed: 10 4 58
$127.00

19. How do I conference a citation?
Rather than contesting citations and orders, we encourage the Operator to request a Safety and Health Conference up to ten (10) days from receipt of citation notice. The request must be in writing and signed by the requesting party. The request must include the Mine ID number, requester’s contact information, and specific reasons that each citation or order should be modified or vacated. It is within the sole discretion of MSHA to grant a request for a Safety and Health Conference and to determine the nature of the Conference. You will be notified in writing whether or not your request is granted. Please submit all Safety and Health Conference requests to the District office for review by one of the following methods:
cc:
Mail: Mine Safety and Health Administration
1100 Commerce Street, Room 462
Dallas, Texas
Attn: S&H Conference Request
  Fax:

20. How do I contest a penalty?

21. Send me an email at donna.Pryor@huschblackwell.com
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22. Best of Luck! Tip: Read Buzzi Unicem decision for inspiration.
Go to
Then click ALJ Decisions
Enter Buzzi Unicem under “Parties.”
Decision is dated January 8, 2016

23. Questions?