Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/91809
by K. Brad Oakley Rock The Commission declines to enforce its own deadline for MSHA to file petitions for assessment. Timetable I n the June 7, 2012, edition of Rock Law, my colleague Christopher Peterson began a dis- cussion of whether the Federal Mine Safety and Health Review Commission (Commis- sion) would enforce its own rules requiring the Mine Safety and Health Administration (MSHA) to file a petition for assessment for civil penal- ties within 45 days of an operator contesting the proposed assessment. This issue came to light as a result of the administrative law judge's (ALJ) decision in Long Branch Energy, rejecting MSHA's excuse that the so-called "backlog" of contested penalty cases and lack of clerical personnel to pro- cess the backlog were adequate causes for delays of up to 11 months in filing the subject petitions for assessment. K. Brad Oakley is a member of Jackson Kelly PLLC's Lexington, Ky., office, where he works with the firm's Occupational Safety and Health Practice Group. He can be reached at 859-255-9500 or via email at kboakley@ jacksonkelly.com. 38 More specifically, the ALJ in Long Branch held that the controlling legal precedent was a 1981 de- cision by the Commission in the Salt Lake County Road Department case. In Salt Lake, the Commis- sion held that MSHA must show adequate cause for a late-filed petition for assessment before the operator is required to show prejudice by the de- lay. Based upon this well-settled precedent, the ALJ determined that MSHA had failed to show adequate cause for the late filings and dismissed the petitions for assessment of civil penalties against Long Branch totaling $75,762. In so holding, the ALJ found that MSHA's general statements about the nature of the backlog, high workload, and lack of personnel did not address the specific cir- cumstances of why the Long Branch petitions for assessment were not timely filed. Essentially, the ALJ rejected MSHA's "we're too busy to follow the rules" defense. AGGREGATES MANAGER November 2012 The ALJ also justified his dismissal of the peti- tions because the late filings frustrated MSHA's own regulations, noting that "…the enforcement of penalties primarily promotes the welfare of miners by serving as a deterrent against future violations, and this deterrent effect must be balanced against the recognized public interest in expeditiously resolving contested penalties..." Unsurprisingly, MSHA appealed the ALJ's decision to the Commis- sion for further review. On Aug. 30, 2012, the Commission rendered its decision on MSHA's appeal of the ALJ's Long Branch decision. In its decision, the Commission first rejected MSHA's contention that the Salt Lake test should be modified to take into account, in all instances, the extent to which an operator has shown prejudice as a result of the late filing. For ex- ample, under the modified Salt Lake test endorsed by MSHA, a weak reason for the delay in filing a petition for assessment could justify allowing the tardy filing if the operator could not show any prejudice caused by the delay. Instead, the Commission held that it was ap- propriate to "clarify" its ruling in Salt Lake in order to determine whether the ALJ properly dismissed the petitions for assessment. First, the Commis- sion stated that its Salt Lake decision "identifies and prioritizes the interests implicated by the case before us and provides guidance for determining how judges should proceed when those interests collide." The Commission then stated that "[a]t its core," the Salt Lake decision "reflects an 'over- riding concern with enforcement.'" Therefore, in the current Commission's view, Salt Lake "clearly established that Commission enforcement of the