The Federal Mine Safety and Health Review Commission has dramatically lowered a penalty set by a judge for one violation and chided her for failing to support an unwarrantable failure designation she had upheld for a second infraction.

An inspector had cited Kentucky coal operator ICG Hazard, LLC, for an alleged violation of the approved ventilation and dust control plan at its Flint Ridge Mine No. 2 after finding a continuous mining machine (CMM) with inadequate water pressure and a number of missing sprays. The violation was initially written as flagrant. The operator appealed.

MSHA reserves its flagrant designation for an especially egregious infraction where an operator recklessly or repeatedly fails to make reasonable efforts to eliminate a known violation that could lead to death or serious bodily injury.  The maximum fine is $220,000.  In contrast, the maximum penalty for a non-flagrant violation is $70,000.

Administrative Law Judge Margaret Miller affirmed the inspector’s gravity and negligence determinations. She also let stand the proposed $138,500 penalty, even though MSHA had stipulated prior to the appeal hearing that it did not intend to pursue the flagrant charge.

ICG argued, and MSHA agreed, that Miller had improperly exceeded the $70,000 threshold for non- flagrant violations. The Commission on October 7 unanimously agreed to set the fine at that amount after accepting MSHA’s argument that a remand was unnecessary because $70,000 was the amount Miller had intended to levy.

“‘Inasmuch as the judge assessed a penalty of $138,500 . . . the judge a fortiori has already determined that a penalty of $70,000 is appropriate,’ˮ the Commission said, quoting the agency.

However, the three-judge panel of the Commission remanded a second violation after finding Miller had failed to address specific factors relevant to a determination the infraction was properly written as unwarrantable failure (i.e., as aggravated conduct beyond ordinary negligence). The violation was written as an order under Section 104(d)(1) of the Mine Act for the operator’s alleged failure to conduct an adequate on-shift dust control examination by failing to note inadequate water pressure and insufficient sprays on a CMM.

Miller affirmed the alleged order as written, but raised the proposed $2,000 fine to $5,000. However, both the operator and MSHA agreed the order could not stand because the Judge had failed to make an unwarrantable failure finding. The parties said the violation should be scaled back to a Section 104(a) citation, the provision under which most violations are written. The Commission agreed and sent the violation back to Miller for penalty reassessment.

Stating that in this case the Judge made no finding with respect to the criteria required to establish an unwarrantable failure,, the commissioners admonished the Judge by stating, “A Judge must analyze and weigh relevant testimony, make appropriate findings, and explain the reasons for her decision.”