Aggregates Manager Digital Magazine
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AGGREGATES MANAGER / December 2017 29 concerning one citation, but evenly split on another. In so doing, two Commissioners voted to affi rm the ALJ's decision, which found in favor of MSHA, and two voted to reverse the decision. The two Commissioners who voted to reverse the ALJ again joined in one opinion and found that MSHA's actions were the product of arbitrary and capricious decision making. Despite such fi ndings, the result was the affi rmance of the ALJ. Two Commissioners in Consolidation Coal Co., __ FMSHRC __ (Re- view Commission September 2017), voted to affi rm the ALJ and concluded that the ALJ's decision, which found the violations to be non-S&S, was supported by substantial evidence. In contrast, two Commissioners concluded that the evidence de- monstrated that the violation was S&S and, accordingly, would reverse the ALJ. The Commissioners evenly split in Arnold Stone, Inc., __ FMSHRC ___ (Review Commission September 2017), on the issue of whether to affi rm the ALJ's penalty assessment or to vacate and remand it. Hence, because there was no majority, the ALJ's as- sessment of penalty stands as if affi rmed despite the reversal of the ALJ's substan- tive fi ndings. In Consol Pennsylvania Coal Co., __ FMSHRC __ (Review Commission October 2017), the Commission reversed the ALJ (3-1) as to her unwarrantable failure, high negligence, highly likely, and fatal fi ndings for a § 104(d) citation and reversed the ALJ (3-1) as to unwarrantab- le failure, highly likely, and fatal fi ndings for a § 104(d) order. The Commission also unanimously affi rmed the S&S designa- tion for the citation and affi rmed, by a 2-2 split, the S&S and high negligence designations for the order. In Nally & Hamilton Enterprises, Inc., ___ FMSHRC ___ (Review Commission October 2017), two Commissioners decided to affi rm the ALJ and concluded that the ALJ's decision, which found the violations to be non-S&S, was supported by substantial evidence, while two Commissioners voted to reverse the ALJ. Each of these cases provides an example of the affi rming of the decision without the requisite majority. An appeal to the Commission is a lengthy process which may persist for years, and a split Commission fails to achieve the number one strategic goal of the Commission itself — that is — "to ensure expeditious, fair, and legally sound adjudication of [mine safety] cases." See Federal Mine Safety and Health Review Commission Strategic Plan, 2014-2018. The next two Commission vacancies occur at the end of August 2018, and this Administration must not allow the Commission to languish without appropriate and fair appointees. After all, as my colle- ague, citing to the legislative history of the Mine Act, so aptly pointed out in May, "[A]n independent Commission is essential to provide administrative adjudication, which preserves due process and instills much more confi dence in the [Mine Safety] program." Human Resources Committee, S. Rep. No. 95 181, Mine Safety & Health Act of 1977, at 47 (May 16, 1977). That statement, which Congress asserted over 40 years ago, rings truer now more than ever. AM 1.888.862.7461 www. beka-lube.com BEKA - LUBRICATION SPECIALISTS SINCE 1927 BEKA auto-lube is built to take the bumps and grinds of a hard-working life on the road or off. Give your fleet the solution that keeps them on the job. • Cast aluminum base withstands impacts and hot/cold cycles without leaking • No springs! Eccentric gear drive resists wear, fatigue and cold • Consistently precise grease dosing Find out why industries are choosing today's best-built auto-lube systems. Call 1.888.862.7461 or email us at info@beka-lube.com. Beka systems take a thumpin'& keep on pumpin' 026-190B AGG Manager 4.5x4.5 4C.indd 1 2017-08-10 11:35 AM