MSHA penalty controversy

By |  January 6, 2015

Heenan_Michael_157x150-GIFMSHA conducted its first hearing on proposed changes to civil penalty regulations on Dec. 4. MSHA wants to decrease operator challenges to penalties and limit operator opportunities to have penalties overturned. The overwhelming bone of contention is MSHA’s proposal to compel imposition of its penalty point assignment criteria at all levels of later legal challenge and review.

Industry commenters insisted the proposal is inappropriate and that MSHA cannot legally impose it. The Federal Mine Safety and Health Review Commission, they point out, is an independent agency that is not subject to restrictions from MSHA. Also, 10 former commissioners issued a letter detailing why attempted curtailment of commission authority would be invalid.

Origin of commission authority

The Federal Coal Mine Safety and Health Act of 1969 introduced penalties in response to repeated coal mine explosions. Civil monetary penalties and penalty closure orders were included as enforcement mechanisms. Monetary penalties were assessed and reviewed through the Board of Mine Operations Appeals within the U.S. Department of the Interior.

When the Federal Mine Safety and Health Act of 1977 brought all mines within enforcement mechanisms originally designed for coal mines, regulatory responsibilities were transferred to the U.S. Department of Labor. Instead of having the Labor Department review its own penalties as had been done by the Interior Department, Congress created an independent agency: the Federal Mine Safety and Health Review Commission. The secretary of labor (MSHA) was given authority only to propose civil penalties. Authority to assess penalties was confined to the commission.

As an independent agency, the commission has power to impose obligations on operators to pay whatever amount of penalty is made final under commission authority. The law provides: “The [commission] shall have authority to assess all civil penalties provided in this [act].” No such authority is provided to MSHA, which produces thousands of proposed penalties every year.

How penalties become final

There are two ways a penalty can become a final order of the commission. First, if an operator contests a penalty, MSHA must file a case petitioning the commission to issue a penalty in the amount MSHA has proposed. The law states: “No proposed penalty which has been contested … shall be compromised, mitigated, or settled except with the approval of the [commission].”

Operators are entitled to a hearing before a commission judge. If either side (MSHA or the operator) disputes the result, a petition for review may be filed with the commission members.

There are five presidentially appointed commissioners who sit in review and may uphold, reverse or revise the trial judge’s decision. Final commission decisions may be appealed to the U.S. Court of Appeals.

A second way a penalty can become a final order of the commission is by operation of law. If a mine operator fails to contest a proposed penalty within 30 days of receipt, MSHA’s proposal automatically converts to a final order of the commission. Such orders are based on default and are not appealable to a U.S. Court of Appeals. However, the commission can reopen a case for good cause.

Significance of contests

Monetary penalties have become an institutionalized (non-tax-deductible) cost of doing business for operators. They are unavoidable. Citations are issued in almost every inspection and civil penalties are proposed for every violation cited. Subjective findings of inspectors are assigned numerical points, which are converted into penalty amounts. Inspectors are authors of proposed penalties, and it is their decisions at issue in penalty contests.

Often, operators will pay penalties without contest because the effort and cost of seeking review may outweigh the perceived value. Most companies want to avoid improper inflation of their history of violations. For those who care, penalty contests have become a way to take issue with findings by inspectors that magnify penalties and create an adverse history that may lead to more rigorous enforcement and penalties in the future. They insist that their compliance was better than what the inspector described.

To eliminate occasions for disagreement, MSHA would discard inspector options. For example, rather than characterize a company’s negligence as none, low, moderate or high – as in current regulations – MSHA would have inspectors decide whether an operator was negligent or not – period. There will be no consideration or relief for efforts to comply.

Since inspectors rarely find “no negligence,” operators will inevitably be routinely deemed negligent without consideration of mitigating factors, and full penalty points will be assigned.

Takeaways

The mining industry is highly safety conscious. Companies care about their employees and want them to be safe. They want to comply with the law and they want their efforts to be properly evaluated.

They are not trying to thwart MSHA, but they care about their inspection results. Civil penalty contests demonstrate a high level of interest in compliance. That’s a good thing and something for MSHA to consider.

Take note

Since inspectors rarely find “no negligence,” operators will inevitably be routinely deemed negligent without consideration of mitigating factors, and full penalty points will be assigned.

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.

Allison Barwacz

About the Author:

Allison Barwacz is the digital media manager for North Coast Media (NCM). She completed her undergraduate degree at Ohio University where she received a Bachelor of Science in magazine journalism from the E.W. Scripps School of Journalism. She works across a number of digital platforms, which include creating e-newsletters, writing articles and posting across social media sites. She also creates content for NCM's Portable Plants magazine, GPS World magazine and Geospatial Solutions. Her understanding of the ever-changing digital media world allows her to quickly grasp what a target audience desires and create content that is appealing and relevant for any client across any platform.

Comments are closed