October 14, 2019

October 14, 2019

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October 11, 2019

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Mine Safety Commission Rejects Lessened Penalties Set by Judge in Two Cases, but Upholds Reduction in a Third

Saying the judge got it wrong, the Federal Mine Safety and Health Review Commission has overturned an administrative law judge’s (ALJ) sharp reduction in fines for two MSHA violations, but left standing the judge’s reduction ordered in a third.

In the first case, MSHA proposed a $4,000 penalty against Utah coal producer Hidden Splendor Resources, Inc. for a July 2009 violation involving an accumulation of float coal dust and coal fines on a surface belt tailpiece. The agency classified the violation as significant and substantial (S&S), high negligence and unwarrantable failure (i.e., aggravated conduct beyond ordinary negligence).

ALJ Richard Manning upheld the high negligence and unwarrantable failure determinations, but did not sustain the S&S classification and reduced the fine to $500. MSHA objected because the penalty reduction fell below the minimum set by statute for unwarrantable failure violations. Holding that the statutory minimum is binding on its judges, the Commission vacated the lowered fine and set the penalty at $4,000 in a December 23 decision.

In the second case, MSHA cited Hidden Splendor for a roof control violation in August 2008. The infraction was written as S&S and high negligence, with a $6,458 proposed fine. ALJ Manning sustained MSHA’s classifications of the violation, but cut the fine to $5,000, saying only that the lower amount was “appropriate.” MSHA appealed, arguing the judge was obligated to explain his reasoning for a fine substantially different from the one proposed. The three- member Commission agreed, and remanded the case to the judge for further explanation.

MSHA also appealed a third decision in which ALJ Manning fully upheld the S&S, high negligence and unwarrantable failure designations for an order associated with an April 2009 training violation, but cut MSHA’s proposed $5,645 fine to $4,000 based on mitigating circumstances. In this instance, the agency contended the judge should not have considered mitigating circumstances because the violation was written as high negligence. However, noting that judges have independent discretion to set penalties, the commissioners said ALJ Manning did not abuse his discretion and upheld the penalty.

In setting penalty amounts, ALJs are bound by the Mine Act to consider each of six penalty criteria. While concurring with his colleagues on the Commission panel, Commissioner Robert Cohen, Jr., added a five-page opinion in which he stated why he believed Manning’s decision on the training violation “fully reflects the principles contained in the Mine Act.”

Cohen cited a decision by the U.S. Court of Appeals for the Seventh Circuit that underscored the independent role accorded Commission judges in setting final penalty amounts and added that, based on hearings in which both sides present their arguments regarding a contested violation before a judge, the judge is able to “take a more nuanced approach [than MSHA inspectors] to the degree of negligence.”

The Commission’s decision and Cohen’s concurrence come in the shadow of an MSHA rulemaking proposal in which the agency seeks, in part, to restrict the Commission’s discretion to set penalties independently. Two public hearings have been held and two more are scheduled for February. The comment period closes March 12. 

Jackson Lewis P.C. © 2019

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About this Author

Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer
Principal

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

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Henry Chajet, Jackson Lewis, health safety attorney, dispute resolution lawyer, overcharge recoveries legal counsel
Of Counsel

Henry Chajet is Of Counsel in the Washington, D.C. Region office of Jackson Lewis P.C.

Mr. Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and “direct purchaser” overcharge recoveries for corporate clients in antitrust price manipulation cases. He defends investigations and enforcement actions by the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Environmental Protection Agency (EPA), Department of Transportation (DOT), National Transportation Safety Board (NTSB), National Institute for Occupational Safety and Health (NIOSH) and other federal and state agencies, as well as in related tort claims and criminal cases, and in EH&S whistleblower or discrimination claims.

To achieve an integrated defense strategy at the initiation of a government investigation or enforcement action, Mr. Chajet coordinates forensic accounting and technical experts, insurance issues, government interviews, document production and public relations experts. He has extensive experience representing clients in cases involving fatal or serious injuries, explosions, chemical releases, fires, manufacturing, transportation and construction accidents, mine disasters and allegations of product toxicity or community harm. Mr. Chajet has served as co-lead counsel in successful, multimillion dollar recovery cases for corporate clients that were “direct purchasers” of commodities and products for which prices were artificially increased through monopoly price manipulation, violating antitrust law.

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