By Ellen Smith
In a case that has implications for the entire mining industry, a Federal Mine Safety and Health Review Commission judge dismissed $75,762 in civil penalties against a mine operator where MSHA failed to timely file with the Commission a routine petition for a civil penalty assessment. Administrative Law Judge Thomas P. McCarthy said MSHA could not establish adequate cause for filing petitions an average of 267 days late.
The Commission’s procedural rules state that MSHA “shall file” a petition for a penalty assessment with the Commission within 45 days of an operator filing a timely contest of a proposed penalty assessment with MSHA.
MSHA said a lack of personnel combined with the large backlog of cases qualified as “adequate cause” for the delay. Until the backlog of contested cases is under control, MSHA would have the Commission ignore the 45-day deadline. MSHA conceded, however, that if roles were reversed, and the operator had insufficient personnel or resources to file an answer in a timely manner, the government would insist that the operator to be held to the Commission’s filing deadlines.
Judge McCarthy wrote, “Operators too are constrained by budgetary and personnel issues and it is disingenuous to suggest that these problems are unique to government. In the interest of procedural fairness, I see no reason why the same adequate cause standard should be inapplicable to the Secretary where she fails to show specific cause for failing to timely file a petition.”
MSHA also acknowledged that having cases linger for an extended period of time reduces the efficacy of enforcement efforts. The judge said the Commission’s rules and MSHA’s own regulations are frustrated when petitions are not timely filed, and McCarthy used the example of determining a pattern of violations. If MSHA were given numerous months beyond the 45-day deadline to file a petition, the final order of the Commission could be so removed from the date the citation was issued, that it would become meaningless.
In his ruling against MSHA, McCarthy noted the penalty petition is a relatively simple boilerplate document to be “immediately” filed after MSHA’s difficult task of investigating the mine and assessing the penalties are complete.
“All that MSHA needed to do to comply was to fill in a few blanks on a template and file the petition with the Commission, a task that could easily be automated or done by any one of the number of secretarial staff or CLRs,” McCarthy said.
The excuses offered by MSHA are “akin to inexcusable neglect than adequate cause,” McCarthy said, “and while the 45-day time limit may be unrealistic, the Secretary has not asked the Commission to change its rule.”
In a footnote, McCarthy said while dismissing the case "is a harsh outcome," it was a decision he did not “come to lightly.” Over the years, the Commission has attempted to warn MSHA of the untimeliness of its filings, and “apparently, those warnings fell on deaf ears. ... In light of this history, it is unclear how to spur the Secretary to more timely action.”
On Sept. 22, the Commission granted the Secretary’s motion to review McCarthy’s decision.
Long Branch Energy, Docket No. WEVA 2009-1492-R etc., Aug. 22, 1011 (ALJ McCarthy).
The Federal Mine Safety and Health Act notes that:
If, within 30 days of receipt of the notification [of proposed civil penalty] by the Secretary, the operator fails to notify the Secretary that he intends to contest the citation or the proposed assessment of penalty…, the citation and the proposed assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency.
For many years this deadline was not subject to relief. Now, however, if the mistake is quickly caught and an adequate explanation can be made in a “Petition to Reopen”concerning how and why the deadline was missed, the Commission may allow the case to go forward. However, a mine operator typically has a much harder time with deadlines than the government does.