Under review

Attention turns to review commissions tasked with ruling on workplace violation citations, and their growing backlogs

When 29 miners were killed in the April 5 explosion at Upper Big Branch Mine-South in West Virginia, the safety record of the mine’s owner, Massey Energy, quickly came into question. Beyond the 10,490 violations and $12.9 million in penalties Massey racked up in 2009, other numbers stood out. Of those violations and assessed penalties, 34 percent of the violations and 74 percent of the penalties were contested.

Many accusations were made during congressional hearings that followed the April 5 catastrophe. Mine workers blamed Massey for allowing unsafe conditions. The mine owner suggested the Mine Safety and Health Administration could be held accountable. And union activists accused the entire mining industry of having a poor safety culture.

The MSHA investigation is ongoing and months could pass before any cause for the blast is found, but one thing is clear: The Mine Improvement and New Emergency Response Act has introduced some unforeseen consequences.

The MINER Act – meant to improve mine safety following several deadly disasters five years ago – sparked a steady rise in the number of contested citations and penalties brought before the Federal Mine Safety and Health Review Commission. Between the act’s 2006 implementation and 2009, the number of cases brought before FMSHRC grew fivefold, resulting in a backlog of thousands of cases.

Although the Occupational Safety and Health Review Commission does not have a backlog similar to that of its sister agency, the number of contested cases it reviews likewise has grown recently, and officials worry proposed legislation could make it escalate at a quicker pace. Some critics warn that if this trend continues, safety will be at risk.

Reviewing the commissions

Both FMSHRC and OSHRC are independent from their respective enforcement agencies, MSHA and OSHA. The review commissions handle disputes between employers and the two enforcement agencies concerning workplace safety and health issues, mostly in the form of citations and penalties. Essentially, the process works like a criminal or civil trial. After a violation at a jobsite, OSHA or MSHA issues a citation and proposed penalty. The employer appeals to the review commission, and the case is assigned to an administrative law judge.

ALJs work at the federal level as career employees, meaning they are neither appointed nor confirmed by politicians. Aspiring ALJs often begin as career attorneys for the federal government. After meeting minimum qualifications set by the Office of Personnel Management, attorneys take an exam and are placed on a list of ALJ candidates. They eventually receive judge training and are placed in one of several ALJ agencies in the federal government. Once a case is assigned to an ALJ, which is a virtually guaranteed aspect of this process, the case proceeds as a regular civil or criminal trial would – evidence and briefs are submitted, and motions are made. The notable exception is that a jury is not used; it is up to the ALJ to hear the evidence and come to a decision.

If the ALJ’s decision involves reducing the penalty the enforcement agency proposed, he or she considers the company’s size and history, the gravity of the violation, and the good faith put forward by the company. This formula is the same one used by the enforcement agencies when assessing the original proposed penalties. If one of the parties disagrees with the ALJ’s decision, it has the right to appeal, and the appeal goes before the commissioners. OSHRC has three commissioners and FMSHRC has five. These commissioners are nominated by the president and must be confirmed by the Senate.

Whether or not a case is heard by the commissioners is up to the commissioners’ discretion, much as it is up to the discretion of Supreme Court judges to hear a case. For appeals before OSHRC, only one commissioner is necessary to grant the petition of appeal to move the case forward; FMSHRC needs two of the five commissioners to grant the petition. When the petition is granted, the commissioners review the evidence, briefs and motions filed, and the ALJ’s decision. Occasionally, the commissioners will hear additional oral arguments on the case before issuing their decision, which could be either to uphold the ALJ decision, modify the decision, or vacate the citations and penalties. If one of the parties involved in the case wishes to appeal the commissioners’ decision, or if the commissioners declined to hear the appeal in the first place, the case can be pursued through the U.S. Court of Appeals.

Backlogs

If too many appeals are filed and ALJs become overwhelmed, the entire system slows down, which is what currently is happening to FMSHRC. “Today, mine operators contest two-thirds of all fines. And some of the largest mine owners are challenging nearly every citation,” Rep. George Miller (D-CA) said during a House Education and Labor Committee hearing in February. “These appeals are clogging the system.”

FMSHRC Chairman Mary Lu Jordan attributed the influx of new cases to recent statutory and regulatory changes – the MINER Act, which vastly overhauled mine safety in the country through new regulations such as increased penalty limits. During a May hearing after the Upper Big Branch explosion, Jordan testified that, as of April 30, ALJs saw their individual dockets increase to an average of 601 cases from an average of 176 cases between fiscal years 2006 and 2008. As a result, cases that four years ago took, on average, less than a year to resolve now take about 18 months.

This extended amount of time to resolve, or dispose of, cases has a direct impact on MSHA’s ability to properly enforce its regulations. While mine operators are required to abate hazards cited during appeal, they avoid steeper penalties for repeat violations. For instance, if MSHA finds additional violations at the worksite, the agency cannot take into account the violations currently being contested when assessing the new penalties – even if they are the same violations. According to some worker advocates, this allows mine operators to “game” the system in an effort to avoid being placed in a “pattern of violations” status and paying higher penalties. “While the higher penalty structure was designed to motivate operators to not have repeat violations, operators have been able to avoid them by delaying a final order that would show the repeat violation,” United Mine Workers of America President Cecil E. Roberts testified in May before a Senate subcommittee.

As of April 30, the current backlog facing FMSHRC was 16,580 cases. The majority of the cases dealt with the penalties proposed by MSHA, not the violation. OSHRC also has seen an increase in its number of cases, albeit a smaller one than that of its sister agency. Between Oct. 1, 2008, and March 1, 2009, ALJs received 790 cases. In the same period one year later, that number increased 24 percent to 981.

“This increase in cases so far this fiscal year may be part of a trend reflecting increased enforcement activity by OSHA,” OSHRC Chairman Thomasina Rogers testified March 16 before the House Education and Labor’s Workforce Protections Subcommittee. In FY 2009, OSHA conducted nearly 39,000 inspections and ALJs received 2,058 new cases. Based on OSHA projections to conduct 42,250 inspections in FY 2011, Rogers anticipates her ALJs will receive 2,450 new cases – a 19 percent increase. To complicate matters, proposed legislation – the Protecting America’s Workers Act (S. 1580) – potentially could increase OSHRC’s caseload even more. Some of the major provisions in the bill would substantially increase the maximum penalty levels for many citations, resulting in OSHA being able to issue higher proposed penalties. “In turn, employers may more likely challenge these higher proposed penalties, increasing the contest rate and our caseload,” Rogers said.

Changes to come

“We’re in a situation where we’re really reacting to what MSHA does,” one FMSHRC source said. The more citations and penalties issued by MSHA or OSHA, the more cases will flood the review commissions. So aside from MSHA or OSHA reducing the number of inspections or the severity of the penalties – which does not seem likely under an administration that has placed an emphasis on strong enforcement – the review commissions can do little more than try to manage the influx of cases more effectively.

To date, both commissions have attempted just that. Rogers told House subcommittee members in her testimony that using “simplified proceedings” for easier cases has expedited their resolutions, and the use of settlement judges has assisted in resolving larger cases.

FMSHRC has implemented new rules to streamline its process for settling civil penalty cases, requiring parties to electronically submit a motion approving a penalty settlement and a proposed order approving the settlement simultaneously. Additionally, to successfully attack its growing backlog, Chairman Jordan asked Congress to provide additional funding to hire more ALJs. If FMSHRC receives funding for 12 more ALJs (currently staffed with 14), the backlog would be nearly cut in half to less than 9,200 in three years (assuming the current case intake remains the same). One option available to both review commissions is the ability to be loaned temporary ALJs from other departments, and to hire retired ALJs on a short-time basis to help reduce the backlog.