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Mine Safety Settlements Will Get Scrutiny From Review Panel

May 21, 2019, 7:30 PM

The Mine Safety and Health Administration has a long, successful history of settling cases with mine operators. A newly whole Federal Mine Safety and Health Review Commission, however, soon will test that, as it could decide just how much evidence needs to be provided before such a settlement can be approved.

And because the vast majority of mine safety cases settle, the commission’s decision in a case involving an 82% reduction in safety fines could have wide-ranging effects.

The full commission, which lost its quorum last August, will hold its first oral arguments in over a year on May 22. Newly appointed commissioners Marco M. Rajkovich (chairman) and Arthur R. Traynor III were sworn in on March 25, as was Commissioner William I. Althen for another term.

The five-member commission provides appellate review of administrative law judge decisions.

Judge Notorious for Questioning Settlements

The case before the commission stems from three citations issued in July 2017 to Solar Sources Inc., an Indianapolis-based coal mine operator, after a miner fell 14 feet while trying to exit the cab of the equipment he’d been operating.

The company was issued a “special assessment” citation and a $77,396 fine. In cases involving extreme danger or willful violations, MSHA’s Office of Assessments may determine that a higher special assessment is appropriate. As a result, judges have greater autonomy to determine the magnitude of fines.

After the secretary of labor agreed to reduce the original fine by 82%, the company and MSHA filed a motion to approve a settlement. On Nov. 29, 2017, FMSHRC Administrative Law Judge William Moran denied the motion and questioned how the parties came to settle the case, asking for more evidence to justify reduction of the fine. He said the secretary of labor extends an “authoritarian approach” to how it views the settlement process.

Willa Perlmutter, a mining litigator at Stoel Rives LLP in Portland, Ore., said judges can be “meticulous about requiring documents,” and Moran “perceives an obligation to fully explores the facts of the case.”

This, however, isn’t the first incident where Moran has rejected a settlement between a mine operator and the federal government for want of additional information. For more than eight years, a settlement agreement between American Coal Co. and mine regulators has been on hold, as Moran, who rejected it, has asked the parties to produce more evidence to justify it.

New Commissioner Traynor, who then represented the United Mine Workers of America, which also intervened in the American Coal case, said regulators have to be transparent to prevent unfair deals between the government and coal companies. The union joined in the case to represent the interests of the workers.

A representative from the commission didn’t respond to Bloomberg Law requests for comment on the Solar Sources case.

Regarding the outcome of the Solar Sources case, Perlmutter said, “Depending on how the commission rules, it will inform the relationship between Administrative Law Judges and litigants for some time to come once the commission pronounces on this.”

“It’ll be notice to the litigants on what the commission is expecting,” she said.

The case is MSHA v. Solar Sources Inc., FMSHRCJ, LAKE 2017-0052, 11/29/17.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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