FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 9, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

            This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). The Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a citation to Stansley Mineral Resources, Inc. (“Stansley”) pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1). Administrative Law Judge David F. Barbour assessed a penalty of $1,000 for the violation. 34 FMSHRC 1500, 1510 (June 2012) (ALJ).

            The Commission granted the Secretary of Labor’s petition for discretionary review. For the following reasons, we vacate the judge’s penalty assessment and impose the $2,000 minimum penalty required by the Mine Act.

I.

Factual and Procedural Background

            Stansley owns and operates a sand and gravel processing facility in Tecumseh, Michigan. Id. at 1500. On November 8, 2010, MSHA issued Citation No. 6504341, alleging that Stansley violated 30 C.F.R. § 56.14107(a), that the violation was a significant and substantial (“S&S”) contribution to a mine safety hazard, and that it was caused by Stansley’s unwarrantable failure to comply with the standard. Id. The Secretary proposed a penalty of $2,000. Id. Stansley admitted that it violated section 56.14107(a), but disputed the S&S and unwarrantable designations. Id. at 1505.

            The judge found that the violation was S&S and the result of Stansley’s unwarrantable failure. Id. at 1506-07. The judge identified the third issue in dispute as the “amount of the civil penalty that must be assessed for the violation, taking into consideration the civil penalty criteria set forth in section 110(i) of the Act.” Id. at 1505. The judge analyzed the six statutory criteria as they applied to this case and concluded that the penalty of $2,000 proposed by the Secretary was excessive in view of Stansley’s small violation history, small size, and good faith abatement of the violation in a timely manner. Id. at 1510. As a result, the judge assessed a penalty of $1,000. Id.

II.

Disposition

            Section 110(i) of the Mine Act grants the Commission “authority to assess all civil penalties provided [under the Act].” It further directs that the Commission, in determining penalty amounts, shall consider:

the operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i). The penalty assessment for a particular violation is within the sound discretion of the administrative law judge so long as the six statutory criteria are given due consideration. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1152 (7th Cir. 1984); Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764 (Aug. 2012); Cantera Green, 22 FMSHRC 616, 620 (May 2000).

(3)(A) The minimum penalty for any citation or order issued under section 104(d)(1) shall be $2,000.

(B) The minimum penalty for any order issued under section 104(d)(2) shall be $4,000.

(4) Nothing in this subsection shall be construed to prevent an operator from obtaining a review, in accordance with section 106, of an order imposing a penalty described in this subsection. If a court, in making such review, sustains the order, the court shall apply at least the minimum penalties required under this subsection.

30 U.S.C. § 820(a)(3) - (4) (emphasis added). Prior to this amendment, the Act had not specified a minimum penalty for section 104(d) citations or orders.

            The Secretary argues that the judge erred in this case by assessing a penalty below the statutory minimum for a violation resulting in a section 104(d)(1) citation. He maintains that, pursuant to section 110(a)(3)(A) of the Act, 30 U.S.C. § 820(a)(3)(A), the judge cannot assess a penalty for such a violation below the statutorily mandated minimum of $2,000.

            In this case, the judge resolved all competing claims and determined that Stansley’s violation rose to the level of a section 104(d)(1) citation under the Mine Act. 34 FMSHRC at 1505-09. The judge fully explained how his findings contributed to his penalty assessment, giving each of the six statutory criteria in section 110(i) due consideration, and explaining his deviation from the Secretary’s proposed penalty. Id. at 1510; see, e.g., Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983); Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-23 (citations omitted). However, although the judge properly applied the statutory criteria in section 110(i), he did not additionally address the language of section 110(a)(3)(A).

            The issue before us is whether the Commission and its judges are strictly bound by the minimum penalty assessment provisions of section 110(a)(3) and whether those provisions can be reconciled with the broad discretion granted to the Commission in section 110(i). We conclude that the language of section 110(a)(3) is clear, and that it is consistent with the penalty assessment provisions in section 110(i). Read together, the two subsections do confer broad discretionary authority upon the Commission and its judges to apply the criteria in section 110(i), but require that no penalty for a section 104(d) citation or order may be assessed at less than the statutory minimums in section 110(a)(3). This reading comports with a “fundamental rule of construction . . . that effect must be given to every part of a statute . . . so that no part will be meaningless.” Daanen & Janssen, Inc., 20 FMSHRC 189, 194 (Mar. 1998) (citing Sekula v. FDIC, 39 F.3d 448, 454 (3d Cir. 1994)).

            Our conclusion that Congress intended that the Commission adhere to the minimum penalty assessment amounts in section 110(a)(3) is further confirmed by section 110(a)(4) of the Act, 30 U.S.C. § 820(a)(4), which dictates that courts of appeals, in reviewing Commission decisions pursuant to section 106, 30 U.S.C. § 816, “shall apply at least the minimum penalties required under this subsection.” Accordingly, a court of appeals would be required to reverse any final Commission decision imposing a penalty less than the relevant minimum amount in section 110(a)(3).

III.

Conclusion

            For the foregoing reasons, we conclude that the judge erred by assessing a penalty of less than $2,000 for a violation under section 104(d)(1), in conflict with section 110(a)(3)(A) of the Mine Act. We therefore vacate the judge’s penalty assessment. Finding no fault otherwise in the reasoning underlying his assessment, we impose the $2,000 minimum penalty required by the Mine Act.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                 

                                                                                     Patrick K. Nakamura, Commissioner

Distribution:

Brian B. Barger

Brady, Coyle & Schmidt, Ltd.

4052 Holland-Sylvania Rd.

Toledo, OH 63623

Matthew Ross, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor West

Arlington, VA 22209-2247

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge David F. Barbour

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004