Joint Operating Plan Tackles Case Backlog Within 3.5 Years

MSHA has budgeted $2,808,250 to cover expenses related to the April 5 Upper Big Branch Mine disaster investigation, according to a “Joint Operating Plan” developed by the Labor Dept. and the Review Commission.

The money is part of the Supplemental Appropriations Act of 2010 signed on July 29 giving the Labor Dept. an additional appropriation of $18,200,000 and the Review Commission $3,800,000 to spend by July 28, 2011 to reduce the case backlog at the Commission, “and other purposes related to mine safety.”. At this level of finding, the agencies believe it will take between 2.9 years and 3.5 years to “retire” the entire targeted backlog of cases.

In reducing the backlog, the plan calls for efforts to focus on “the worst offenders,” and changes the way cases are managed at the Commission. Each region of the Solicitor’s office is working with MSHA to identify a large percentage of violations that are S&S or “unwarrantable failures,” and these will be the initial priority.

Seventy-eight new staff members were hired within the last month for the Solicitor’s offices around the country. The national office has three additional staff, and 25 additional staff members for three regions: the Philadelphia/Arlington office, Atlanta/Nashville and Kansas City/Denver. Some retired SOL attorneys have come back on a temporary basis. The Solicitor’s office will keep the most complex and challenging cases with existing permanent staff that already has experience handling cases before FMSHRC. Additional staff is projected to dispose of between 3,000 and 3667 cases totaling 18,000 – 22,000 citations during this next 12 month period.

MSHA’s part in this project includes contracting out for approximately 15 staff for this project. MSHA plans to field up to three technical advisors for each of the three SOL regional offices. MSHA has hired one additional staff member for each of the metal/nonmetal districts to act as a “litigation liaison for the backlog reduction project, provide assistance and technical expertise, as well as assist SOL in evaluating the merits of individual cases. Coal will use its existing staff for these functions, and expects a lot of over-time for depositions and hearings.

The Solicitor’s office and the Review Commission have agreed on several administrative actions to help lessen the backlog.

First, procedures are being developed for the mandatory disclosure of certain categories of documents or the names of non-miner witnesses to facilitate settlement or, when necessary, the hearing process.

Second, FMSHRC’s administrative law judges will facilitate the settlement process, using methods similar to a mediator. The Secretary and the representative of the operator would appear via teleconference or in person to identify any alleged violations that can be settled. The concept also envisions the judge playing a more activist role in assisting the parties to reach mutually agreeable settlements.If a settlement is not reached, the Commission said it foresees the case being referred to a different ALJ