Arguing that a judge “abused his discretion” by increasing fines substantially against a coal operator, a member of the Federal Mine Safety and Health Review Commission has dissented sharply from his Commission colleagues, who largely supported the judge’s decision.

Commissioner William Althen contended that  Administrative Law Judge (ALJ) William Moran created “the danger of the appearance of arbitrariness” when he hiked fines against Signal Peak Energy, LLC above those the Mine Safety and Health Administration already had raised through the agency’s subjective special assessment process.

“The Judge increased an already increased penalty to ‒ in fact beyond ‒ the maximum without substantial explanation,” Althen wrote in a five-page dissent of a Commission decision March 4.

(http://www.fmshrc.gov/decisions/commission/COMMd_0 3042015-WEST%202010- 1130%20%28Signal%20Peak%20Energy%20LLC%29.pdf)

An inspector cited Signal Peak in June 2009 after a miner was injured following a roof fall in a worked out area of the operator’s Bull Mountain Mine No. 1 in Montana. The miner fell some 50 to 80 feet. The incident also damaged ventilation controls extensively in the active workings of the mine.

The injured miner complained of severe chest and back pain and had difficulty breathing and he was observed to have a head cut and broken ribs. Despite these injuries, the operator concluded his condition was not life-threatening, and therefore did not report the accident to MSHA. The miner was eventually diagnosed with burst thoracic vertebra and multiple fractures. The mine repaired the property damage and continued operations.

After MSHA learned of the accident five days later, the agency cited the operator for not reporting the accident and for failing to preserve evidence at a reportable accident site. Believing the operator had been especially negligent about a serious accident, MSHA set aside its regular penalty assessment procedures and specially assessed the alleged infractions.

MSHA’s fines came to $49,500 for the alleged violation of Part 50.10(b), which requires reporting when there is a reasonable potential to cause death, or, alternatively, Part 50.2(h)(8), reporting of an unplanned roof fall occurring in active workings which impairs ventilation. In a second citation, over the alleged failure to preserve evidence under Part 50.12, MSHA set the fine at $1,900. Although Signal Peak contested the citations, ALJ Moran not only upheld the violations alleged, but upped the fines to $74,250 and $9,500, respectively. The operator appealed.

Two of the three Commissioners fully upheld the judge’s ruling and fine regarding the Part 50.12 violation. However, they rejected Moran’s reasoning that the Part50.2 standard applied because the roof fall had not occurred in active workings. They also cut the fine to $60,000, the maximum allowable at the time of Moran’s June 2012 decision.

Commissioner Althen dissented, saying he would remand the case to the judge to explain why he had raised the  fines 50 percent and 500 percent, respectively. The amounts exceeded penalties MSHA had already raised through what Althen called the “unbridled discretion” of its special assessment process. MSHA has issued guidelines  on how it generates special assessments, but has not explained how they are calculated, Althen noted. “The penalty assessment appears, therefore, to be a reflexive rather than reflective action apparently flowing from intent to inflict maximum financial pain,” Althen concluded.

Althen also reminded his colleagues of a 2014 Commission decision vacating a judge’s decision and remanding the case because the ALJ had raised a proposed penalty by 23 percent without justification.

“The sauce for the goose must be the sauce for the gander,” he stated.