Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/85652
WAKE UP CALL? MSHA's A case before the Commission may hold the agency's feet to the fire. by Christopher G. Peterson T he Congressional directive that the civil pen- alty provisions of the Mine Act be enforced promptly and efficiently has been the focus of recent litigation before the Federal Mine Safety and Health Review Commission (Commis- sion). The Commission has before it an MSHA appeal of a decision by an Administrative Law Judge dismissing $75,762 in civil penalties because of the Mine Safety and Health Administration's (MSHA) failure to timely file petitions for assessment of a civil penalty. The standard for determining the time period for filing a petition for assessment of civil penalty is found in Section 105(d) of the Mine Act, which provides, in relevant part: because of its late filing under Commission Rule 27 (the precursor to present day Commission Rule 28). The Commission stated that "Rule 27 imple- ments the meaning of 'immediately' in section 105(d)" and that the deadline was an integral part of the Mine Act. Christopher G. Peterson is an associate in Jackson Kelly PLLC's Denver office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or cgpeterson@jacksonkelly.com. Further, Commission Rule 28(a) provides that "within 45 days of receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the Commission a petition for assessment of penalty" [29 C.F.R. ยง 2700.28(a)]. In Salt Lake Co. Rd. Dept., 3 FMSHRC 1714 (Rev. Comm. July 1981), the Commission set forth the controlling principles that address the statutory language and the Commission's 45-day rule. In Salt Lake Co., the Commission addressed whether a proposal for penalty should be dismissed If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that he intends to contest the issuance or modification of an order is- sued under Section 104, or citation or notification of proposed assessment of penalty issued under subsection (a) or (b) of this section . . ., the Secretary shall im- mediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing. We think that it is clear from the text of section 105(d) that the purpose of that section is to provide for prompt and efficient enforcement. The requirement of prompt penalty proposal puts teeth into the Mine Act's penalty structure. The section incidentally promotes "fair play" by protecting operators from stale claims. This focus on effective enforcement rather than on creat- ing a period of limitations is reflected in relevant legisla- tive history cited by the judge (3 FMSHRC at 1715). The Commission held that when the Secretary files a petition for assessment of civil penalty outside the 45-day period, the Secretary's request must pro- vide 'adequate cause' for the delay (3 FMSHRC at 1716). The Commission went on to hold that the mine operator can oppose the motion to file out-of- time by demonstrating prejudice (Id.). In Salt Lake Co. Rd. Dept., MSHA asserted that an extraordinarily high caseload and lack of clerical personnel justified the delay in filing (Id. at 1717). The Commission held that such a showing "mini- mally satisfied the 'adequate cause' showing required under the Commission's test (Id.)." Since Salt Lake County had failed to demonstrate any prejudice from the late filing by MSHA, the Commission al- lowed the case to proceed to trial. In Long Branch Energy, 33 FMSHRC 1960, (Au- gust 22, 2011, ALJ McCarthy) the court granted the mine operator's motion to dismiss the four petitions which had been consolidated for trial. Long Branch 56