FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 6, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DIRECTION FOR REVIEW AND DECISION

BY: Jordan, Chairman; Young and Nakamura, Commissioners

            This contest and civil penalty proceeding involves a citation issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Mining & Property Specialists (“MAPS”) under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). Administrative Law Judge William B. Moran affirmed the violation of 30 C.F.R. §75.512 , and assessed a civil penalty of one dollar. Mining & Property Specialists, 33 FMSHRC ___, slip op. at 4-5, Nos. VA 2010-585-R and VA 2011-251 (Oct. 28, 2011) (“Dec.”) . The Secretary of Labor had sought a penalty of $100 and petitioned the Commission for review of the judge’s penalty determination.

            For the following reasons, we grant the Secretary’s petition for review of the penalty imposed, vacate the judge’s decision, and remand this matter for further proceedings consistent with our decision.

I.

Factual and Procedural Background

            The judge found that “there were no factual disputes in need of resolution.” Id. at 3. On August 12, 2010, MSHA Inspector Richard Whitt inspected Guest Mountain Mining Corporation’s Derby Wilson Mine, an underground coal mine in Wise County, Virginia. PDR at 3. Inspector Whitt issued a citation pursuant to section 104(a) of the Mine Act to MAPS, a contractor at the mine, for failure to make available an electrical examination book for a personnel carrier. Id.; Dec. at 2. MAPS contested both the citation and the penalty. PDR at 3.

            The citation charged MAPS with “moderate” negligence for the violation, which was not deemed “significant and substantial.” Id. At the hearing, MAPS conceded that the examination book was not at the mine site, but was maintained at its offices 9.1 miles away. Id.; Dec. at 3. MAPS asserted that the book was available for inspection because the offices were nearby and on the inspector’s way home from the mine site, and the book could have been faxed to the mine site for inspection. Dec. at 3. In explaining why the book was not maintained at the mine site, MAPS cited concerns about conditions at the mine creating the potential for deterioration of the records. Id.

            The Secretary responded that having the records offsite and delaying production created the potential for operators generally to alter records prior to inspection (though no allegation was made against MAPS). Id. The Secretary also questioned whether she would have jurisdiction to enter MAPS’ offsite offices, which are not a “mine” under the Act, and noted that the miners at the mine would not have access to a book maintained offsite. Id.

            The judge agreed with the Secretary’s contention that a fair reading of the standard implicitly requires the records to be maintained at the mine, and that even if the language of the regulation itself did not direct this conclusion, the Secretary’s position on the matter was reasonable and was thus entitled to deference. Id. at 3-4. In discussing the operator’s contention that offsite records satisfied the requirements of the regulation, he noted the difficulty in determining, in a principled way, whether offsite records might be close enough to be considered “available.” Id. at 4.

            In assessing the penalty, the judge stated that there was no allegation of unsafe equipment or that equipment had not been examined and tested as required by the standard. Id. He also noted the Secretary’s finding that the violation was not “significant and substantial” and that she deemed the negligence to be moderate and the gravity “unlikely.” Id. The judge then held:

Upon consideration of each of the statutory penalty criteria, the Court has taken the above into account and has further considered that MAPS had a good faith, though erroneous, interpretation of the standard’s requirements. For this first instance of this violation, and having taken into consideration MAPS [sic] earnest belief that it was in substantial compliance, the Court believes that a penalty of $1.00 (one dollar) is appropriate. However, on similar facts, future violations by MAPS would not warrant such a minimal penalty.

II.

Disposition

                                    Section 110(i) of the Mine Act confers upon the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in setting penalties 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).

                                    Under this clear statutory language, the Commission alone is responsible for assessing penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 Penalty regulations] also govern the Commission.”). However, while there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). The judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his penalty assessments. Id. at 622. This is essential to the process of review. See Hubb Corp., 22 FMSHRC 606, 612 (May 2000) (stating that findings on criteria need to assure Commission and any reviewing court that penalties are appropriate).

                                    We are unable to determine from the judge’s decision whether the reduction in penalty is supported by the application of the statutory criteria. While the Secretary asserts that we should simply affirm the penalty she originally proposed based on the judge’s tacit acceptance of some of her characterizations of the criteria, PDR at 12-13, we decline to do so.

                                    Instead, on remand the judge must address each of the statutory criteria. The negligence criterion merits particular consideration. We cannot ascertain what level of negligence the judge ascribed to MAPS and how this affected his penalty determination. The decision points to a “good faith, though erroneous” view of the law as a basis for reducing the penalty. Dec. at 4. However, in her petition, the Secretary alleges that the inspector testified that on May 11 and June 11, 2010, he had spoken with MAPS employees at another mine about the requirement that inspection records for the personnel carriers at those mines needed to be maintained at the mine site. PDR at 8-9. Because we do not have a transcript of the proceedings, and because the judge does not discuss this issue in his decision, we are unable to determine the circumstances surrounding these conversations, or whether any contrary evidence was submitted. These conversations could be relevant to the issue of whether MAPS had notice of MSHA’s position regarding maintenance of inspection records offsite, which could affect the level of negligence. On remand, the judge must address this contention.

III.

 Conclusion

                                      Our precedents require that the judge explain how his application of the statutory penalty criteria to the facts in each case supports his penalty determination. For the reasons set forth above, we vacate the penalty imposed by the judge and remand this matter for further proceedings consistent with our decision.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

;Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioners Duffy and Cohen, dissenting:

                                    We would affirm the judge’s determination that the penalty should be reduced by $99 as well within the discretion accorded him under Commission case law. We agree with the majority that a judge is required to sufficiently explain his reasoning when assessing a penalty that substantially diverges from that proposed by the Secretary. See Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (4th Cir. 1984). Here, the judge’s departure from the Secretary’s proposed penalty was clearly occasioned by the judge’s conclusion regarding the operator’s negligence, which itself is supported by substantial evidence, and his giving greater weight to that penalty factor, which Commission case law plainly permits him to do. See Spartan Mining Co., 30 FMSHRC 699, 724, 725 (Aug. 2008) (upholding judge’s increase of Secretary’s proposed penalty of $3,700 to $30,000 because judge explained his disagreement with Secretary’s conclusions as to gravity and negligence and gave those factors increased weight).

                                    The judge based his negligence analysis on the fact that the operator had a good faith belief that offering to have the records at issue faxed from the operator’s central office to the mine site made those documents “available” for purposes of the regulation. We find that factor to be dispositive of the issue as to whether a penalty reduction from the level proposed by the Secretary was justified. Indeed, it is clear that the judge provided a sufficient basis for finding little or no negligence in light of the operator’s contention that the records in question were electronically “available” in conformance with the intent of the standard.

                                    In any event, we see no value to prolonging this matter when we are satisfied that a justifiable exercise of judicial discretion exists on the facts and the law.

/s/ Michael F. Duffy                                                                                     

Michael F. Duffy, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution

Harry W. Meador, II, President

Mining & Property Specialist, Inc.

1912 Wildcat Road

Big Stone Gap, VA 24219

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 William Moran

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021