But in reducing the penalties against the two agents of management, the judge commented on the fact that Mize Granite had been assessed rather significant 110(i) penalties for the violations (which she affirmed), and these would also be paid by Mr. Mize. She took this overlapping effect of the penalties into account in the assessment of the personal penalties, and held that the penalties proposed by the Secretary were disproportionate to the size of the mine vis a vis the income of the agents, and their lack of personal histories for previous violations.

The Commission disagreed, stressing that prior decisions make clear that the proper inquiries for the determination of individual penalties ought not include the size of the mine nor the penalties levied against the corporation, and discredited the judge’s assumption that Mr. Mize would effectively be paying both the corporate and his own personal penalties. The Commission also rejected the reduction of Mr. Lewis’ penalties, noting that he did not provide financial information and, therefore, the ALJ did not have an adequate basis for lowering the fines. Moreover, there was nothing in the record which indicated that Lewis understood that the amount of his penalty would be affected by consideration of his income and net worth, and his ability to meet his financial obligations.

The personal penalties that had been lowered, in the Section 110(c) actions that were not dismissed, have now been remanded back to ALJ Rae for reconsideration of the individual penalties assessed against Lewis (a total of $17,600), so he can be given another opportunity to provide documentary evidence and an affidavit or declaration regarding his personal income and financial responsibilities. The penalties against Mr. Mize were similarly remanded for the judge to consider the individual penalties assessed based solely on Mize’s personal financial status without consideration of the corporate penalties or his corporation’s state of economic health.

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 safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.