FMSHRC Affirms Widening Scope of Persons Who Can Be Prosecuted Under Section 110(c)
Since the basic business judgments which dictate the method of operation of a coal mine are made directly or indirectly by persons at various levels of corporate structure, [civil penalties] are necessary to place the responsibility for compliance with the Act and its regulations, as well as the liability for violations on those who control or supervise the operation of coal mines as well as on those who operate them.
Because of the clear legislative intent to pierce the corporate veil and hold agents responsible who would otherwise be shielded by limited liability, the Commissioners all agreed that it was reasonable to construe Section 110(c) as including LLCs within the scope of the liability scheme. This outcome, they claimed, will provide a “greater incentive” to comply with the Mine Act, whereas Mr. Simola’s position would allow some (agents of LLCs) to hide behind a liability shield while other similarly situated corporate actors would be able to be cited and fined.
This ruling confirms MSHA’s six-year policy approach and constitutes binding precedent unless it is overturned by a U.S. Court of Appeals (no word was available on whether this would be appealed by Simola). Therefore, agents of LLCs — hourly and salaried, persons who supervise or manage a mine, handle safety, serve as foremen or leadmen, direct the work of others, or even just carry out workplace examinations – will now be subject to personal liability, and we can expect MSHA to be more aggressive as the result of this ruling when issuing significant actions to LLCs.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at firstname.lastname@example.org or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com
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