We’ve seen that at least one administrative law judge at the Federal Mine Safety and Health Review Commission is balking at MSHA chief Joe Main’s efforts to slash penalties for some mine operators … well, it turns out that two other ALJ’s are also concerned about MSHA’s fine-cutting practices.

In case one case just two weeks ago, Judge William B. Moran rejected MSHA’s efforts to cut CONSOL Energy’s fine for a citation at its Enlow Fork Mine in Western Pennsylvania by 98 percent — from $11,306 to $207.

The citation asserted the presence of damp loose coal and coal fines along a nine-foot distance of a conveyor belt. The MSHA inspector who issued the citation noted there had been 180 violations of this regulation at the mine in the last two years. Wrote Judge Moran:

Given the un-refuted factors listed in this citation, and the significant history of this class of problem at the mine, the drastic reduction proposed, without more explanation or justification, cannot be accepted.

And in another order issued in late June, Robert J. Lesnick, the commission’s chief administrative law judge, rejected MSHA’s effort to reduce by 64 percent the penalties associated with one of two citations issued following a July 2007 accident that killed two workers at an Alaskan gold mine.

In its report on the deaths, MSHA described the incident this way:

Craig Bagley, contract ironworker, age 28, and Tyler Kahle, contract iron worker, age 19, were fatally injured on July 19, 2007, when a manlift they were operating toppled over. The victims were descending from an elevated location with the boom extended when the unit became unstable and toppled on its side.

The accident occurred because management policies and procedures were inadequate. The manlift was not positioned on solid, level ground and the center hydraulic lift cylinder was being utilized improperly. Task training for persons operating the manlift was incomplete and did not address the load management system provided on the unit.

The company involved, Alaska Mechanical Inc., agreed to pay the full $60,000 for a citation that alleged:

The manlift was used beyond the design capacity intended by the manufacturer where such use created a hazard to persons. The rear center jack on the manlift was being used as a stabilizer or outrigger and the manlift was not positioned on a solid and level surface during use. The manlift had been positioned at this location for three days prior to the accident. Management engaged in aggravated conduct constituting more than ordinary negligence because this condition was obvious and supervisors had conducted workplace examinations in the area. This violation was an unwarrantable failure to comply with a mandatory safety standard.

But MSHA proposed to cut from $55,000 to $20,000 the fine for a second citation that said:

One of the victims was operating the manlift and had not received task training instruction regarding all safety aspects and all safe operating procedures regarding this man lift. The task training did not identify the specific safe operating procedures and limitations of the Load Management System that was critical to safely operate this manlift.

Judge Lesnick summarized the filings in the case this way:

Here, the parties represent that the penalty amounts upon which they agreed “take into account those factors required to be considered by Section 110(i),” and that findings set forth by the Secretary in her petition for assessment of civil penalty as to gravity and negligence “are supportable.” Mot. at 2. The Secretary’s petition alleges that the violation cited in Citation No. 6398234 resulted from “moderate” negligence, and that the violation cited in Citation No. 6398235 resulted from “high” negligence. Pet. at [10]. The petition alleges the gravity of both violations was “serious,” and “contributed to the cause of a fatal machinery accident.” Id. The parties state that AMI’s history of previous violations “is as set forth in . . . the Petition.” Mot. at 2. Finally, the parties state that the company “exercised good faith in abating the cited conditions,” and that the agreed to penalty would not affect AMI’s ability to remain in business. Id. at 2-3. Neither of these representations is inconsistent with the Secretary’s petition. Aside from several other general representations, the parties fail to identify and explain any particular facts that would support a reduction of the penalty for Citation No. 6398234 by well more than half.

And, the judge opined:

In other words, the parties have said that although the Secretary’s penalty petition is fully supportable, they have concluded that the significantly reduced penalty AMI has agreed to pay is “fair and reasonable and serve[s] the enforcement goals of the Act,” and is “in the public interest and will further the intent and purpose of the Act,” simply because they say so. Justice William O. Douglas once had occasion to cite Humpty Dumpty’s pronouncement to Alice in Through the Looking-Glass that “When I use a word . . ., it means just what I choose it to mean – neither more nor less.” Zschernig v. Miller, 389 U.S. 429, 435 n.6 (1968). Here, the Secretary has no such authority, and when she says that a penalty is “fair” and “reasonable” and “in the public interest,” the Mine Act and Commission precedent requires her and other parties to a settlement to provide more than mere empty words to justify their agreement. Otherwise, section 110(k) would be meaningless, and the authority of Commission judges to review settlements would be reduced to providing the proverbial rubber stamp.

This entry was posted on Tuesday, July 27, 2010 at 6:00 am and is filed under Legal actions, Mine Safety. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.