Notice & Comment

D.C. Circuit Declines Review of ALJ Mine Safety Citation, by Katie Kennedy

The U.S. Court of Appeals for the D.C. Circuit recently declined review of an ALJ decision citing Excel Mining, LLC (“Excel”) for violating the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Excel Mining, LLC v. Dep’t of Labor, 2013 U.S. App. LEXIS 5261, 1, 2013 WL 1155362 (D.C. Cir. Mar. 15, 2013). The mining company, Excel Mining LLC, argued that the ALJ’s finding of only “moderate negligence” for the purposes of the monetary penalty calculation precluded his finding of an “unwarrantable failure” under 30 U.S.C.S. § 814(d) because a finding of an “unwarrantable failure” required “more than ordinary negligence.” The company brought this case before the D.C. Circuit and the judges entered order on March 15, 2013. The court reviewed the legal conclusions of the ALJ de novo and his findings of fact for substantial evidence. The court rejected the mining company’s argument because a finding of “moderate negligence” did not foreclose a finding of an “unwarrantable failure.”

The underlying case involved a Petition for Assessment of Civil Penalty filed by the Secretary of Labor pursuant to 30 U.S.C. § 815(d). 34 FMSHRC 99. It alleged that Excel is liable for a single 104(d)(1) violation n1 of the Secretary’s Mandatory Safety Standards (30 C.F.R. § 75.220) for Underground Coal Mines. The agency sought a total civil penalty of $23,229.00. Excel Mining appealed the ALJ’s decision in an attempt to show that the interpretation of the relationship between the regulations governing penalty calculations and the statutory term “unwarrantable failure” is unreasonable.

This case boiled down to an issue of agency deference. The Secretary’s interpretation of an ambiguous provision of the Federal Mine Safety and Health Act is entitled to deference so long as it is reasonable. The Commission defines an “unwarrantable failure” as “aggravated conduct[] constituting more than ordinary negligence.” An ALJ must look at “all the facts and circumstances of each case” to determine if the violation was so aggravated as to constitute an “unwarrantable failure.” As the Secretary points out, there is ample support in the record for the ALJ’s finding of aggravated conduct: the roof control plan violation was extensive and obvious; the company had been cited for the same violation eleven days before the inspection and warned that repeated violations would result in heightened sanctions; and the safety implications were grave.

The court held that the regulations required the ALJ to adjust the negligence finding to “moderate negligence” because he found a single mitigating circumstance: that the mining company had moved mining equipment out of one of the areas of the mine that had been made unsafe by the mining company’s failure to comply with its roof control plan. However, that finding did not need to preclude the separate, forward-looking decision to impose heightened oversight under§ 814(d) when the record showed that aggravating factors predominated. Thus, because the court did not find that the ALJ’s decision, as adopted by the Commission, was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,5 U.S.C. § 706(2)(A), the court denied the petition for review in case number 12-1138.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

Print Friendly, PDF & Email