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Archive for October, 2013

Another ALJ Rules Against Disclosure

Posted by Ellen Smith on October 2, 2013

ALJ William Moran ruled Sept. 25 that Consolidation Coal is not entitled to MSHA’s Special Assessment Review form when it comes to five alleged violations at the company’s Blacksville No. 2 Mine in Monongalia County, W.Va.

While the Secretary argued that the special assessment review (SAR) form was protected under attorney work-product privilege, Moran said he did not even need to rule on that issue.

“Once a matter is before the Commission, no part of Part 100 or that subset within it, special assessments under section 100.5, remains material,” Moran wrote. “Although the Secretary has put forth other, substantial, reasons to deny [Consol’s] Motion, the foregoing is sufficient, standing alone, to deny the motion.”

While Mine Safety and Health News rarely takes a stand in cases, when it comes to SAR forms we are in complete belief that these forms should be made available upon request. For this country to move in the direction of trust, openness and honesty, the answer is more openness and not less.

Review Commission ALJ’s are split on the issue. We would like to offer a historical context and the legislative history of the Mine Act to argue our case for disclosure.

In 1977, the Senate Subcommittee on Labor wrote:

“ The Committee strongly feels that the purpose of civil penalties, convincing operators to comply with the Act’s requirements, is best served when the process by which these penalties are assessed and collected is carried out in public, where miners and their representatives, as well as the Congress and other interested Parties, can fully observe the process.”

S. Rep. No. 95-181, at 44 ( 1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 632 (1978)

Fast forward to January 2009 when President Obama has stated “My Administration is committed to creating an unprecedented level of openness in Government.”

It is hard to see the President’s commitment when representatives of his administration suppress information that was once made public.

Special assessment forms have been around for a long time – as long as we can remember. At times, these forms have been attached to copies of citations that we have asked for. When our Washington correspondent Kathy Snyder worked for MSHA, special assessment forms were often made available. Attorneys tell us that they have, in the past, been given copies of the special assessment forms when they have requested them from MSHA.

Special assessment forms are part of the civil penalty process and are not prepared for the prospect of litigation. The majority of citations – 68% to 70% of all citations – are in fact paid and not litigated.

Special assessment forms are prepared in the ordinary course of MSHA business of assessing civil penalties whether litigation is ever filed or not. They are not prepared under an attorney’s direction. They offer opinions and facts as to why a penalty should be increased, much like the inspector offers a narrative of facts and opinion when writing a citation. Although this information might be relied upon by the Solicitor’s Office to prepare for litigation, it is not in fact prepared in anticipation of litigation.

One need only look at the words from the legislative history of the Mine Act to know what Congress wanted in 1977. “Public meetings … public input … open to the public … intention that the public be notified…” Congress wanted the entire mine safety process open to public scrutiny.

Whether these forms are available for public review also affects the public perception in the settlement process – a legal process that Congress also wanted open after looking at the deficiencies of the 1969 Coal Act. If the Solicitor’s Office is going to make a settlement deal based in part on these special assessment forms, shouldn’t the public have a right to know how they made the decision? How are we going to have a system of checks and balances? How are we going to “fully observe the process” as called for in the Mine Act’s legislative history?

Special assessment forms offer transparency into why MSHA staff believes a fine needs to be increased on any given violation. Transparency assures that this information will be provided in a clear, concise and professional basis that can be defended.

Operators need to know that the special assessment isn’t “payback” for a disgruntled former employee or inspector.

The public needs to know if there was some particular behavior on the part of an operator that the families of miners should be made aware of, and why a special assessment is needed for deterrence.

There is no reason to hide the “thinking” or thought process behind a penalty or violation. We need this openness to understand what is going on. This is our government, and our country. We have a right to know how decisions are made.

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