The federal Mine Safety and Health Administration’s (MSHA) quest to reduce the much talked about “case backlog” at the Federal Mine Safety and Health Review Commission is taking shape. In the May 20, 2010 issue of the Federal Register, the Review Commission proposed a new rule for handling civil penalty proceedings. The proposed rule will create a new category of cases that will be heard before the Review Commission under streamlined rules of procedure called “Simplified Proceedings.”

Under the proposed rule, a case will be eligible for simplified proceedings if it does not involve complex issues of law or fact and if the case falls into one of the following categories: (1) the case involves a “limited number” of citations; (2) the aggregate proposed penalty is not more than $15,000 per docket and no more than $50,000 per proceeding; (3) the citation or order was not issued under Sections 104(b), 104(d), 104(e), 105(c), 107(a), 110(b), 110(c), or 111 of the Mine Safety and Health Act of 1977; (4) the case does not involve a fatality; and (5) a hearing is expected to last only one day.

Under the proposed rule, if a case falls into one of these categories, the Review Commission’s Chief Administrative Law Judge (or designee) may, without motion, designate a case for simplified proceedings. If a case is automatically assigned simplified proceeding status, but is later determined to not be appropriate for simplified proceedings, the assigned judge may remove it from simplified proceeding status. In addition, any party may move, no later than 30 days prior to a hearing date, that the case not be subject to simplified proceedings. Moreover, and perhaps most important, any other MSHA case that does not automatically qualify for simplified proceedings may still be heard under the simplified proceedings rule if either party (MSHA or the operator) files a request that simplified proceedings be used.

Highlights of the proposed simplified proceedings are as follows:

  • Answers to Petitions for Assessment of Penalty would not be required;
  • Motions would essentially be eliminated;
  • Discovery (including depositions) would not be allowed unless “under the conditions and time limits set by the judge”;
  • Each party would be required to submit mandatory prehearing disclosures to the other side of any evidence (documents or tangible things) that the party “may” use to support its claims or defenses; and
  • Oral closing statements would be required and post-hearing briefs would not be allowed.

Simplification of the Review Commission’s litigation process is certainly a laudable goal. However, at what cost? If this rule becomes final in its present form, operators would not be permitted to conduct discovery in many cases unless specifically authorized by the judge. Because inspector depositions would no longer be automatically allowed, the operator bears the burden of establishing why a deposition should be permitted.

One final issue also must be addressed. Presently, the process for how citations are currently aggregated/docketed is controlled by MSHA’s Office of Assessments – not the Review Commission. Thus, the process by which citations will be aggregated for purposes of simplified proceedings will be performed by MSHA – not the Review Commission. It may be anticipated that citations will be grouped more frequently in “limited” numbers and with total penalties to be less than $15,000 in order to facilitate the use of simplified proceedings.