Aggregates Manager

September 2013

Aggregates Manager Digital Magazine

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Rock by Patrick W. Dennison Operators should be diligent in contesting special assessments and seeking justification for penalty calculations. Shedding Light on SPECIAL ASSESSMENTS I Patrick W. Dennison is an associate in Jackson Kelly PLLC's Pittsburgh office, where he is in the Occupational Safety and Health Practice Group. He can be reached at 412-434-8815 or via email at pwdennison@ n 2007, new penalty regulations were promulgated that increased penalties associated with the citations/orders issued by the Mine Safety and Health Administration (MSHA). The regulations also provided that the Secretary of Labor could elect to waive the regular penalty assessment and propose a "special assessment." Special assessments increase the penalty beyond regular assessments for the types of violations that "may be of such a nature or seriousness that it is not possible to determine an appropriate penalty under these provisions." 72 Fed. Reg. 13592. Recently, the number of proposed special assessments has increased, and the Secretary has proposed special assessments even for typical run-of-the-mill enforcement actions. The Mine Act authorizes the Federal Mine Safety and Health Review Commission and its judges to assess penalties. 30 U.S.C. § 820(i). The Secretary's regulations at 30 C.F.R. § 100.3 establish MSHA's system for proposing a penalty as a "regular assessment" based on the assignment of points that account for the six statutory criteria: the operator's history of previous violations, the appropriateness of the penalty to the size of the operator's business, the operator's negligence, the effect of the penalty on the operator's ability to continue in business, the gravity of the violation, and whether the operator abated the violation in good faith. 30 U.S.C. § 820(i). Those points are then added and the total corresponds with a predetermined penalty amount. Pursuant to Section 100.5(a), the Secretary "may elect to waive the regular assessment" and instead propose a "special assessment." 30 C.F.R. § 100.5. There is no specific criterion, however, for what conditions may warrant a special assessment or precisely how to determine the amount of a special assessment. Instead, MSHA uses a matrix and converts the total number of special assessment points to calculate the special assessment. A specially assessed penalty ranges from $200 to $70,000 for non-flagrant violations with an increase in penalty of $1,455 per penalty point (to a maximum of $220,000) for violations designated as flagrant. For regular assessments, operators are provided a breakdown of calculations used in determining the proposed penalty with every Petition for Assessment (Exhibit A form). When the Secretary levies a special assessment, however, the operator is no longer privy to such calculations and instead receives a redacted "Exhibit A" form. The redacted form provides no information regarding the amount of points assigned to calculate the penalty, and operators are left to speculate how the assessments office arrived at the inflated penalty that may be five or six times the regular assessment. In determining penalties, the Commission and its ALJs make penalty determinations de novo, and neither the ALJ nor the Commission is bound by the penalties proposed by the Secretary. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (Rev. Comm. May 2000); Cantera Green, 22 FMSHRC 616, 622 (Rev. Comm. May AGGREGATES MANAGER September 2013 RockLaw_AGRM0913.indd 27 27 8/15/13 3:33 PM

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