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www.rockproducts.com ROCK products • May 2016 • 53 LAW Picture this. Your mine gets an MSHA citation you do not agree with for a variety a reasons – it's not a violation of the standard, there is not a hazard, the negligence is too high, it should not be fatal, it should only have one person affected, it should not be S&S; – the list goes on. The problem is, it's been assessed at $200 and you cannot justify hiring counsel to defend the company for a citation with such a small penalty. Many operators feel they do not have the resources or the knowledge to defend the company in this situation. Here's a recent story that might inspire you. Buzzi Unicem USA oper- ates a small limestone pit in Tennessee. Early one March morning an MSHA inspector arrived and issued a citation for failing to maintain sufficient illumination in the area where the barges are docked. The Secretary sought a penalty of $100 for the alleged violation. The company's safety and health manager decided to contest the citation and represent the company himself. An attorney from the U.S. Department of Labor's Office of the Solicitor represented MSHA. At the request of the parties, the court held a telephonic hearing where the parties called witnesses to testify and presented evidence. Buzzi Unicem presented strong evidence to support their case: the employees wore cap lamps at night, the barge dock- eting area had lights (though some were taken out because the lights caused a blinding effect when miners were on the barges), and the inspector never measured the level of the illumination without the lights. The court found that MSHA failed to present enough reliable, objective evidence to establish that the lighting was actually insufficient and vacated the citation: "The Secretary relies solely on the evidence from Inspector White, but White's testimony bears indicia of unreliability which diminish the weight of his opinions regarding the nature and sufficiency of the lighting in the cited area." Represent Your Company Successfully First, be organized. Create a binder or file with all of your documents that includes the citation(s) at issue, the stan- dards at issue, the evidence you have collected (photos, work orders, witness statements, workplace exams, SOPs, man- uals, anything relevant to the citation and your argument). Do-It-Yourself Legal Representation You Can Challenge MSHA Citations Without an Attorney, But How Do You Represent Yourself Successfully? By Donna Pryor Keep everything related to your case, good or bad. Parties are obligated to act professionally and ethically and cannot destroy evidence or documents relevant to the case. Next, assess your case. Read the applicable standard. Then read it again. Does the citation really allege a violation of the standard? Talk with your potential witnesses. Do they remember anything? Do they have good or bad facts to share? Be honest with yourself about whether your case has merit and whether the citation should be contested. It's easy to get emotionally caught up in contesting a citation, but be sure your case is strong before you decide to devote your time and energy into the case. Next, talk settlement. Either conference the citation or if your request for a conference gets rejected, organize your documents and get ready to discuss settlement once the case is assigned to an attorney or a CLR later (after you contest the penalty). If, after you've had a good look at your facts and the stan- dard, you still feel strongly that the citation either should be vacated or modified, check the boxes on your penalty assess- ment and get to work. You will have to file an "Answer" to the Petition for Assessment of Penalty when you receive it. The Petition is essentially the same thing as a "Complaint" in a regular court action. After the Answer is filed, the parties can conduct informal (or formal) discovery and exchange documents. Be sure to ask the MSHA representative for the inspector's notes and photos. At any time during this process you can Donna Vetrano Pryor is a sharehold- er in the Denver office of Jackson Lewis P.C. She focuses on commercial litiga- tion and administrative litigation related to mine safety and occupational safe- ty, among other areas, and assists a diverse group of clients – including pri- vately and publicly held corporations, large multinational companies, and individuals – in complex commercial litigation matters.