FMSHRC Proposes Streamlined Procedures

The flood of contested cases -- about 9,200 each in 2008 and 2009, more than twice the usual number of previous years -- must be addressed, the commission says.

The Federal Mine Safety and Health Review Commission has proposed a few ways to streamline its procedures and accelerate disposition of contested cases, which are piling up at a rapid pace. The independent appellate court for MSHA enforcement actions, FMSHRC received about 2,300 new cases per year from 2000 through 2005, 3,000 to 4,000 annually in 2006 and 2007, and about 9,200 in 2008 and again in 2009. Mine officials have accused MSHA inspectors of overreaching and say they have no real alternative but to contest a citation; MSHA and the chairman of the U.S. House Education and Labor Committee, U.S. Rep. George Miller, D-Calif., say mine operators are stalling the process with appeals so they won't have to pay for needed safety abatements.

The proposed Simplified Proceedings would include these changes: Answers to petitions for assessment of penalty would not be required; motions would be eliminated to the greatest extent practicable; early discussions among the parties and the administrative law judge would be required to narrow the disputed matters; parties would be required to disclose certain materials early in the proceedings; discovery would not be permitted except as ordered by the ALJ; interlocutory appeals -- appeals of an ALJ's ruling before that judge had decided the case -- would not be permitted; and post-hearing briefs would not be allowed except as ordered by the ALJ. "Although the administrative process would be streamlined, hearings would remain full due process hearings as they are under conventional procedures," according to the commission's proposal.

To be designated for Simplified Proceedings, a case would not involve complex issues of law or fact and would generally include one or more of these characteristics: (1) limited number of citations; (2) an aggregate proposed penalty of not more than $15,000 per docket and not more than $50,000 per proceeding; (3) no citation or order issued under sections 104(b), 104(d), 104(e), 105(c), 107(a), 110(b), 110(c), or 111 of the Mine Act; (4) not involving a fatality; or (5) a hearing that is expected to take not more than one day.

FMSHRC asked for comments on its proposals by June 21. They may be e-mailed to Michael A. McCord, the commission's general counsel, at mmccord@fmshrc.gov; the subject line should say, Comments on Simplified Proceedings."

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