But, three months later, you wonder why you haven’t seen any more paperwork about the case. You check MSHA’s citation database online and see that MSHA thinks you paid the citation. Case closed. You frantically dig through your files and call everyone involved. Could this be right?
Sadly, it is. You learn your accounts payable department received a stack of citations from you — some to pay and some to contest — along with your contest form and check request. They didn’t realize they had to mail in the contest form, and just sent a check to MSHA’s payment address (the bank). When the bank received money without any paperwork, it simply applied its standard rules — paying the oldest unpaid citations first.
Now, that outrageous citation is a final order. Forget the Supreme Court. Your case was lost before it even began. Your lawyer explains that you can file a motion to reopen, which will take months and often does not succeed. How could you have avoided this mess?
ESTABLISH A BULLETPROOF INTERNAL CONTEST SYSTEM
The key is to create and train on a logical, clear standard operating procedure (SOP). Trace the paper flow from the moment the mail carrier delivers an envelope from MSHA to the company’s property, and consider an SOP that addresses each of the following points:
Have MSHA mail sent directly to the decision-maker. Ideally, the citation contests pass through as few hands as possible, which means fewer opportunities for losing paperwork or miscommunicating. Appoint someone to decide whether to contest citations and penalties, and consider asking MSHA to send mail directly to that person. Sometimes, this person may have to consult with others to make a final decision, but consider this point person to be responsible for shepherding all contests or payments through to submission.
Build in redundancy with a backup person and succession plan. Far too many penalty contests fall through the cracks because the primary decision-maker was on vacation or recently left the company.
Copy MSHA citations and penalty assessments for your file and track their progress. Hopefully, you already have a system — even if that means a spreadsheet — to track citations your mine receives. It is helpful to track penalty assessments, contests and payments, too. Record when the assessment arrives, who receives it, where it goes next and when, what action will be taken, and what deadlines apply. Scanning a copy of the inbound document(s) and storing them electronically in an organized way is critical.
Set up reliable reminders. Whoever in your company must act on MSHA penalties needs a reliable system of reminders to ensure that nothing falls through the cracks. This may mean adding a calendar item in Outlook, Google calendar or on paper. Attorneys can help track deadlines with their docketing system.
In addition, copy or scan the final version you send out for your records. Use a delivery service like FedEx, UPS, or even USPS Priority Mail so that you have proof that you sent your contest, proof that it arrived, and ideally, the name and signature of the person who signed to accept it.
Pay penalties online. The problem with paying penalties by mailing a check is that the check just has a dollar amount on it. Even if you send in paperwork, too, the paperwork can be lost, separated or misunderstood by the bank.
Instead, consider using the www.pay.gov website to pay your MSHA penalties. The site allows you to pay with a credit card. Most importantly, you have to check a box for each citation you wish to pay so that both you and MSHA know what you are submitting. Paying online with a credit card may also mean that your safety department can pay citations directly, without involving the accounting department. That means one less handoff in the process where something can go wrong.
Track your contests and payments until resolved. You cannot rest until you know that your contest arrived and was correctly logged on time. Set a reminder to check on the status of your citation contests and payments. Look them up on MSHA’s Document Retrieval System online (www.msha.gov/drs/drshome.htm). If you submit a contest early enough, you may even be able to find and fix any problems before the deadline. Checking the database also helps identify errors, such as when MSHA logs a contested citation as paid or vice versa.
Document and train. As with any SOP, the MSHA contest process must be clear, understandable and accessible. Review it as a group initially and periodically so that all participants understand their parts.
Consult with your counsel. Experienced MSHA lawyers know where internal contest processes have failed in the past and can offer advice on an SOP.
Unfortunately, one can’t always prevent MSHA from issuing problem citations. But, one can preserve and protect their contest rights with a little advance planning.
Avi Meyerstein is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. His practice is focused on workplace safety and health matters.
