Commission Need Not Decide on Validity of MSHA’s Penalty Criteria

Commission judges do not need to defer to any element of MSHA’s Part 100 regulations for assessing civil penalties, since the Commission has a Congressional mandate to independently assess penalties after making findings of fact, the Commission ruled in a Sept. 16 decision.


The case involved Wade Sand and Gravel Co. of Jefferson County, Ala., and one citation for a missing guard in violation of §56.14107(a). The company conceded the violation, but argued that MSHA made a mistake in calculating the $1,026 penalty under 30 CFR §100.3(c).

Previous Violations

Under §100.3(c), an operator’s history of previous violations is based on both the total number of violations, and the number of repeat violations of the same citable provision of a standard in a preceding 15-month period. Only assessed violations that have been paid or finally adjudicated, or have become final orders of the Commission are used to determine an operator’s history.

Wade Sand said that 62 of the 67 violations and 8 of the 9 repeat violations should not have been included in its history because these violations occurred prior to the 15-month period identified in §100.3(c).  

The company argued that only the violations that were cited in the previous 15 months and became final orders within that 15 month period, should be included in the history assessment.
Judge Margaret Miller found the language of §100.3(c) could be subject to either party’s interpretation, and therefore ambiguous, but held that the Secretary’s interpretation was reasonable.
She then considered the evidence, based in part on the six penalty criteria, and independently determined that a $1,026 penalty was appropriate.

Commissioners Robert Cohen, Michael Young and William Althen said they did not need to decide whether the language was ambiguous.

While operators may be dissatisfied with the calculation of points and the Secretary’s proposed penalty, “they may contest the proposed penalty and be afforded an independent assessment by a Commission Administrative Law Judge based on section 110(i) of the Mine Act … Commission Judges need not defer to any element of the Part 100 regulations, including definition of terms. We must not compromise, through notions of deference or otherwise, our Congressional mandate to assess civil penalties independently after making findings of fact.”

Concurring Opinion

In a concurring opinion, Chairman Mary Lu Jordan and Commissioner Patrick Nakamura said while it’s true that ALJs must independently assess a penalty de novo, “many of them find MSHA’s penalty regulations (and the manner in which the Secretary applies them in proposing a penalty) useful guidance … often, in assessing a penalty, some judges will review an ‘assessed violation history report’ produced by MSHA and made part of the case record.

“When judges do turn to the Secretary’s penalty regulations for guidance, they need to have a correct understanding of what they mean, and how to accurately interpret them. In providing such an interpretation (as the parties have requested us to do in this case), we apply traditional tools of regulatory interpretation, including principles of deference.”

Because the language is ambiguous, “deference must be accorded to the Secretary’s reasonable interpretation,” Jordan and Nakamura said.

The chairman and commissioner also agreed with Judge Miller’s analysis that “Wade’s interpretation of Section 100.3(c) would lead to an absurd result which would encourage mine operators to contest all citations and draw out the litigation in the hope that no final order of the Commission would be issued before the passage of 15 months.

“If such were allowed to occur the operator would be able to avoid all accountability for any history of violations it has developed. Certainly that cannot be the intention of either the Mine Act or the Secretary’s regulations.”

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