By Ellen Smith
If your company and MSHA want to present a settlement before the Federal Mine Safety and Health Review Commission, have all of the details in order explaining why there should be more than a 10 percent reduction in civil penalties.
In yet another case, an administrative law judge has rejected a settlement motion presented before the Review Commission – this time ALJ William Moran rejected a settlement Feb. 11 involving The American Coal Co., and violations found at its New Era Mine.
ALJ William Moran has also taken the unprecedented step of refusing to accept the appearance of MSHA’s Conference and Litigation Representative in the case.
Under Commission rules, the Secretary and the operator must provide very specific facts for each settlement. But in this most recent case, the settlement motion raised the proverbial “red flag” when the CLR in the case, who filed the motion with the Commission, sought a 30 percent “across-the-board” reduction of 32 citations, with one reason offered: “The Secretary has determined that a reduced penalty is appropriate in light of the parties' interest in settling this matter amicably without further litigation.”
The settlement did not change the gravity or negligence of any of the citations – only the penalty.
In denying the motion, Moran said, “The idea that every one of 32 citations could warrant a 30 percent reduction demonstrates, by that fact alone, that the reductions were more in the nature of yard sale, rather than any individualized review meriting, by some impossibly small odds, that each just happened to have earned such an implausibly uniform reduction.”
Moran said “there is no legitimate basis to reduce any of these citations. ... Nor can it be said that the cited matters are all negligible violations.”
In chastising the CLR and Secretary, ALJ Moran said, “The only thing that the motion gets right is the math; each of the 32 alleged violations was reduced by 30 percent.
“Motions such as these serve to demonstrate the great wisdom of Congress. It knew that without the fail-safe it installed in the Mine Act, through Section 110(k) of that Act, settlements such as this could occur. ... Submissions such as this lay bare the failures that would most certainly occur should the Secretary ever be able to have this protective provision removed from the Commission's oversight.”
In refusing to allow the CLR in this case to practice before him, Moran said competence is an essential part of the CLR process. “Regrettably, here that competence has not been demonstrated. The idea that there can be a wholesale, large, across the board reduction for a significant number of violations with no justification other than to achieve an amicable settlement and to avoid further litigation, demonstrates a lack of understanding about the operation of the Mine Act's requirements where civil penalty reductions are sought.”
The American Coal Co., 2/11/2013,Docket No. LAKE 2011-12; 20 MSHN D-657.
Suggestions for Settlements
If you want to make sure that your company's settlement with MSHA is approved by the judge, you and MSHA must document all of the reasons for lowering the penalty under the Mine Act’s civil penalty criteria, and offer supporting documentation.
- The mine’s history of violations in general and the history of violations of the particular standard for which you were cited.
- Reasons for why the negligence and gravity should be reduced, including the Number of miners affected if it is different than what is listed on the citation.
- The size of your business.
- Your company’s ability to pay.