Coal Age

DEC 2017

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48 December 2017 legally speaking One-size Regulation Doesn't Fit All? Consider a Modif ication by avi meyerstein In recent years, a number of our cli- ents have faced Mine Safety and Health Ad- ministration (MSHA) inspectors writing ci- tations based on new interpretations of old standards. Sometimes, the district office rubber-stamps these new "rules" — and sometimes, these seem like district initi- ates. When the changes demanded by the MSHA to equipment or operations are sig- nificant, it is not uncommon for the mine operator to believe the changes actually would decrease, rather than increase, safe- ty. Other times, the operator may believe its approach is at least as safe, and achieves the same goal, as the standard. Of course, when this happens, the fa- miliar tools to challenge MSHA citations and orders are available. Companies can seek a fix at an informal conference with the dis- trict office. If that fails and if MSHA contin- ues to push unreasonable abatement, they can contest the paper, including contesting any failure-to-abate orders on an expedited basis. In parallel with litigation, they may also pursue settlement discussions, partic- ularly trying to escalate the issue to MSHA's national leadership to be sure that Arlington is aware of rogue action by a district. Increasingly, our clients have asked us to assist them with yet another approach that complements these efforts. If the lan- guage of the standard (or, at least, MSHA's latest interpretation of the standard) would lead to an unsafe situation, mine operators can petition for a modification of this reg- ulatory requirement. Through the petition, they seek permission from MSHA's nation- al headquarters to do something different that is at least as safe. Essentially, if the rule doesn't work in your operation, you can try to get your own rule. Modifications are as old as the Mine Act itself. Under Mine Act Section 101(c), mine operators (and miner's representatives) may submit petitions to "modify the applica- tion of any mandatory safety standard" at a particular mine. MSHA may modify the application of the standard if "an alternative method of achieving the result of such stan- dard exists, which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard, or that the application of such standard to such mine will result in a dimi- nution of safety to the miners in such mine." MSHA has detailed regulations for con- sidering a petition for modification in 30 C.F.R. §§ 44.10-44.53. The petition should include "[a] concise statement of the modifi- cation requested, and whether the petition- er proposes to establish an alternate method in lieu of the mandatory safety standard or alleges that application of the standard will result in diminution of safety to the miners affected or requests relief based on both grounds." It should contain "[a] detailed statement of the facts the petitioner would show to establish the grounds upon which it is claimed a modification is warranted." Upon submission of a petition, MSHA publishes it in the Federal Register, kick- ing off a 30-day public comment period. It also begins MSHA's investigation into the merits of the petition. MSHA may send in- spectors, technical support personnel, and district, or even headquarters staff to visit the mine and examine the issues involved. Eventually (or in the words of the regula- tions, "[a]s soon as is practicable after the investigation is completed"), the adminis- trator will make a decision and issue a pro- posed decision and order. That decision becomes final in 30 days if no one objects. However, the mine operator or miner's representative can challenge the decision by requesting a hearing, which launches a full litigation process. Unlike a citation contest, the case does not go to the Fed- eral Mine Safety and Health Review Com- mission. Instead, a Department of Labor (DOL) administrative law judge (ALJ) con- ducts a hearing after the usual pre-trial discovery process. It's a full hearing, with witnesses, evidence and motions. Even that judge's decision is not the last word. Any party that disagrees can appeal the judge's ruling directly to MSHA's top political leader. None other than the assistant secre- tary of labor makes the final call. And he can decide whatever he likes based on the record and the parties' statements. In the words of the regulations, the assistant secretary's de- cision "may affirm, modify, or set aside, in whole or part, the findings, conclusions, and rule or order contained in the decision of the presiding administrative law judge." So, what do mine operators find ap- pealing about this process? It puts the facts and legal issues in a petition, which some- times clarify for MSHA's decision makers that the current approach is not a viola- tion. We've seen petitions for modification denied because MSHA decided they were unnecessary since the mine operator was in compliance. Operators appreciate an official document stating compliance. Even if you don't get an order declaring that you comply with the standard, most operators are equally happy to receive an order approving the way they do things as an accepted alternative. Depending on the issue, the common sense and safety realities may be compel- ling. Perhaps, you have reason to believe that the administrator or assistant secretary is likely to see things your way even when the district does not. Maybe, you have rea- son to believe that the DOL ALJ is likely to reach a reasonable conclusion. Indeed, when local officials spring nov- el interpretations on you, the modification process empowers you to kick the issue di- rectly to MSHA's national leadership, which is responsible for applying the rules consis- tently. The administrator decides initially, and the assistant secretary decides ultimate- ly. A modification won't solve all your prob- lems or make current citations disappear, but it's one more tool for your toolbox. Avi Meyerstein is a partner with Husch Blackwell in the area of technology, man- ufacturing and transportation.

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