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US MSHA Unveils Pilot Mediation Program

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

Platts reports that the U.S. Mine Safety and Health Administration (MSHA) just launched a pilot mediation program. Here are the details:

Washington (Platts)–20Aug2010/540 pm EDT/2140 GMT

US mine safety regulators plan to revert to a speedier mediation process during a 90-day test period starting later this month in an effort to reduce the number of citations appealed by operators.

The Mine Safety and Health Administration said Friday it plans to alter “safety and health conferences” so that mine operators can informally dispute citations before filing a formal appeal with the agency’s administrative review board.

The pilot program will be tested starting August 31 at a pair of eastern coal mine district offices and one metal/non-metal office.

The agency is considering reinstituting a conferencing system that was eliminated in 2007 partly in response to criticism that too many citations were being thrown out in a manner too friendly to the industry.

A possible return and revision of the conferencing system represents a rare area of agreement between the Obama administration and the mining industry, which praised the plan.

“We were pleased to hear that MSHA is considering revising its current safety conference procedure,” Tony Bumbico, vice president of safety for Arch Coal, said through a spokeswoman. “If approached objectively by all parties, the new conference guidelines have the potential to resolve legitimate disputes early in the process which would be to everyone’s benefit.”

The National Mining Association, which has been pushing for a return to the old conferencing system, also lauded the plan.

MSHA is seeking ways to reduce a backlog of 89,000 cases before the Federal Mine Safety and Health Review Commission, which a subject of congressional scrutiny both before and after April’s deadly Upper Big Branch blast. The death of 29 workers in the accident only added to the scrutiny.

According to FMSHRC data, the number of cases filed during the 12 months ending October 1, 2008 more than doubled from the previous year to 8,900. The commission is on pace to set another record this year, with more than 9,100 cases filed through August 14, compared with 9,200 for the entire fiscal 2009.

“It is clear that the current conferencing structure is not working,” MSHA Administrator Joe Main said in a statement. “By resolving factual disputes before a violation is contested, these citations will not be added to the enormous backlog of cases that have bogged down the judicial system.”

The United Mine Workers of America and other safety advocates were leery of the program and its potential for departing from a multi-step process put in place last year.

“If it’s exactly the same way as it was before — and that’s not clear — then that represents a step backward,” said union spokesman Phil Smith. “We don’t see it as making any progress, because the way it was before…gave the operators too many bites of the apple.” The new pilot program will allow both mine operators and miner representatives to participate in the conferences. Main said he hoped the program will make the agency’s enforcement more efficient.

The program will start at three district offices: Coal District 2 in Mt. Pleasant, Pennsylvania; Coal District 6 in Pikeville, Kentucky, and the Metal/Nonmetal Southeast District in Birmingham, Alabama.

–Peter Gartrell, [email protected]


Victoria VanBuren

Victoria VanBuren holds a B.B.A. in Finance from Southern Methodist University and a J.D. from the University of Texas School of Law.  She focuses on intellectual property law and arbitration. Known as a "worker bee," she is an active legal blogger and is currently pursuing a degree in computer science.… MORE >

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