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Sept. 26 — The mine safety regulator asked an appeals court to review a Federal Mine Safety and Health Review Commission ruling that the commission must approve settlements of contested penalties proposed by the agency ( Sec’y of Labor v. FMSHRC , D.C. Cir., No. 16-1333, 9/23/16 ).
In its Sept. 23 petition for review, the Department of Labor and Mine Safety and Health Administration asked the U.S. Court of Appeals for the District of Columbia Circuit to review the ruling that the commission must approve, under Section 110(k) of the Federal Mine Safety and Health Act, any contested penalty.
“No proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission,” according to the provision. “No penalty assessment which has become a final order of the Commission shall be compromised, mitigated, or settled except with the approval of the court.”
The mining administration alleged 32 violations, of which 14 were serious, and sought $44,000 in penalties from the American Coal Co. Following discussions, the department moved the administrative law judge to approve a settlement with a 30 percent across-the-board reduction in 2013.
Among the citations were coal accumulations, inadequate roof and rib support, a haul truck leaking oil, additional roof control violations and an oxygen tank pressure gauge not maintained in safe condition, according to an order issued by Administrative Law Judge William B. Moran.
Moran found that the department failed to provide adequate factual support for the reduction and, based upon Section 110 and its legislative history, denied the agency’s motion for reconsideration in May 2014. The commission granted interlocutory review, and the United Mine Workers of America intervened in support of the judge’s decision.
In a decision authored by the review commission, it affirmed the administrative law judge’s ruling ( Sec’y of Labor v. Am. Coal Co., OSHRC, No. LAKE 2011-13, 8/25/16 ).
The review commission called this a “test case” filed by the secretary to advance “his position that the Commission’s authority to review settlements of contested penalties under section 110(k) of the Mine Act, 30 U.S.C. § 820(k), is much more limited than” that announced in an earlier review commission decision.
The secretary had argued that the review commission should follow the consent decree standard of review in SEC v. Citigroup Global Markets, Inc., 752 F.3d 285, 2014 BL 154486 (2d Cir. 2014), which, according to the secretary, requires a reviewing district court to give deference to an agency’s public interest determination.
The Second Circuit’s standard is “inconsistent” with Section 110(k), because Congress intended for the commission, rather than the MSHA, to determine whether a reduced penalty in a settlement agreement serves the public interest.
"[T]he legislative history of section 110(k) reveals that Congress authorized the Commission to approve the settlement of contested civil penalties in order to ensure that penalties serve as an effective enforcement tool, prevent abuse, and preserve the public interest,” the review commission wrote.
The Department of Labor’s Office of the Solicitor represents the secretary.
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The Secretary of Labor’s petition in Secretary of Labor v. FMSHRC is available at http://src.bna.com/iTs.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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