FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 2, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

            This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). At issue is whether the Administrative Law Judge failed to adequately explain his assessment of a civil penalty lower than the penalty proposed by the Secretary of Labor in his post-hearing brief. For the reasons that follow, we remand this matter to the Judge.

I.

Factual and Procedural Background

            On February 11, 2008, Keith Sigmon, an inspector with the Department of Labor’s Mine Safety and Health Administration (“MSHA”), issued Citation No. 7279729 to Performance Coal Co. (“Performance”), alleging a significant and substantial (“S&S”) violation of 30 C.F.R. § 75.400. The citation indicated that he observed accumulations of float coal dust inside and on top of the No. 1 North Mains belt conveyor power center and on the mine floor, roof, and ribs surrounding the power center. Gov’t Ex. 3. The citation noted that one person would be affected by the violation, that injury was reasonably likely to be fatal, and that the operator’s negligence was moderate. Id. The Secretary subsequently proposed that Performance pay a civil penalty of $4,329 for the violation.

            The operator challenged the citation and proposed penalty, and the matter proceeded to hearing. At the hearing, the Judge ordered the parties to file post-hearing briefs 30 days after they received the hearing transcript. Tr. 196-97. The Secretary and Performance subsequently filed simultaneous post-hearing briefs.

            In his post-hearing brief, the Secretary requested that the Judge make de novo findings of fact that there were seven people potentially affected by the violation, and that the violation resulted from high negligence. S. Post-Hr’g Br. at 17, 18, 20. The Secretary stated that because the evidence adduced at the hearing showed that the operator’s negligence was high and seven miners were potentially affected, the penalty points set forth in 30 C.F.R. Part 100 increased, and a proposed increased penalty of $34,653 was appropriate. Id. at 21. The operator did not reply to the Secretary’s post-hearing brief.

            In his decision, the Judge set forth his findings with respect to each of the statutory penalty criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). 32 FMSHRC 1797, 1805-08 (Nov. 2010) (ALJ). The Judge considered the inspector’s testimony that “numerous miners could be affected: the fire boss could be in the area conducting an inspection, maintenance shift personnel could be in the area servicing the belts, in addition, six miners were observed by Sigmon cleaning the south main belt.” Id. at 1802. The Judge appeared to credit such evidence, stating in the S&S and gravity portion of his decision that miners at the power center and those who worked outby were subject to reasonably serious, or even fatal, injuries as a result of an accident. Id. at 1807. In addition, the Judge considered both parties’ evidence regarding negligence, and accepted the inspector’s designation of the level of negligence as moderate. Id. at 1807-08. The Judge concluded that “the Secretary’s proposal is appropriate” and assessed a civil penalty of $4,329. Id. at 1808.

            The Secretary filed a petition for discretionary review, which the Commission granted. In his petition, the Secretary argues that the Judge assessed a lower penalty than that proposed by the Secretary in his post-hearing brief, and that the Judge erred by failing to acknowledge or explain the reduction.

II.

Disposition

            As the Commission has frequently recognized, section 110(i) of the Mine Act confers upon the Commission the authority to assess all civil penalties provided under the Act. See, e.g., Mining & Property Specialists, 33 FMSHRC 2961, 2963 (Dec. 2011). Neither the Judge nor the Commission is bound by the Secretary’s proposed penalties. 29 C.F.R. § 2700.30(b); Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[Neither] 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.”).

            Although there is no presumption of validity given to the Secretary’s proposed assessments, the Commission has recognized 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.” Mining & Property Specialists, 33 FMSHRC at 2964 (citations omitted).

            Here, the Secretary proposed a significantly higher penalty in his post-hearing brief than that initially proposed, arguing that the increase was supported by evidence at trial showing a higher level of negligence and more miners potentially affected by the violation. The Judge did not expressly address the arguments made in the Secretary’s post-hearing brief. He did, however, discuss the negligence level. See 32 FMSHRC at 1802 (noting inspector had assessed the negligence level as “moderate” and supporting testimony); id. at 1807-08 (discussing “negligence” specifically for more than half a page and noting the factors he considered in deciding to “affirm Inspector Sigmon’s negligence finding”). He also noted that miners working outby the power center and travelling through the crosscut would have been injured in the event of a mine fire or explosion. Id. at 1807.

            Although the Judge’s assessment of a civil penalty of $4,329 may not have been in error, given his recitation of record evidence in support of his findings governing the operator’s negligence, the number of miners potentially affected, and the other relevant factors contained in section 110(i) of the Act, he should have considered directly the Secretary’s argument in favor of an increase in the penalty proposed. Accordingly, we remand this matter to the Judge so that he may expressly address the Secretary’s argument in favor of the increased proposed penalty.

III.

Conclusion

            For the reasons set forth above, we hereby remand this matter to the Judge with instructions that he address the increased proposed penalty assessment set forth in the Secretary’s post-hearing brief in a manner consistent with this decision.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution;

Carol Ann Marunich, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

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