MSHA’s Wake Up Call?


June 7, 2012

A case before the Commission may hold the agency’s feet to the fire.

The Congressional directive that the civil penalty provisions of the Mine Act be enforced promptly and efficiently has been the focus of recent litigation before the Federal Mine Safety and Health Review Commission (Commission). The Commission has before it an MSHA appeal of a decision by an Administrative Law Judge dismissing $75,762 in civil penalties because of the Mine Safety and Health Administration’s (MSHA) failure to timely file petitions for assessment of a civil penalty.

The standard for determining the time period for filing a petition for assessment of civil penalty is found in Section 105(d) of the Mine Act, which provides, in relevant part:

If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under Section 104, or citation or notification of proposed assessment of penalty issued under subsection (a) or (b) of this section . . ., the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing.

The Commission will address whether ‘we’re too busy’ is an adequate cause for MSHA delays.

Further, Commission Rule 28(a) provides that “within 45 days of receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the Commission a petition for assessment of penalty” [29 C.F.R. § 2700.28(a)].

In Salt Lake Co. Rd. Dept., 3 FMSHRC 1714 (Rev. Comm. July 1981), the Commission set forth the controlling principles that address the statutory language and the Commission’s 45-day rule. In Salt Lake Co., the Commission addressed whether a proposal for penalty should be dismissed because of its late filing under Commission Rule 27 (the precursor to present day Commission Rule 28).

The Commission stated that “Rule 27 implements the meaning of ‘immediately’ in section 105(d)” and that the deadline was an integral part of the Mine Act.

We think that it is clear from the text of section 105(d) that the purpose of that section is to provide for prompt and efficient enforcement. The requirement of prompt penalty proposal puts teeth into the Mine Act’s penalty structure. The section incidentally promotes “fair play” by protecting operators from stale claims. This focus on effective enforcement rather than on creating a period of limitations is reflected in relevant legislative history cited by the judge (3 FMSHRC at 1715).

The Commission held that when the Secretary files a petition for assessment of civil penalty outside the 45-day period, the Secretary’s request must provide ‘adequate cause’ for the delay (3 FMSHRC at 1716). The Commission went on to hold that the mine operator can oppose the motion to file out-of-time by demonstrating prejudice (Id.).

In Salt Lake Co. Rd. Dept., MSHA asserted that an extraordinarily high caseload and lack of clerical personnel justified the delay in filing (Id. at 1717). The Commission held that such a showing “minimally satisfied the ‘adequate cause’ showing required under the Commission’s test (Id.).” Since Salt Lake County had failed to demonstrate any prejudice from the late filing by MSHA, the Commission allowed the case to proceed to trial.

In Long Branch Energy, 33 FMSHRC 1960, (August 22, 2011, ALJ McCarthy) the court granted the mine operator’s motion to dismiss the four petitions which had been consolidated for trial. Long Branch Energy alleged that there had been ‘inexcusable delay’ in the filing of the petitions as they had been filed from seven to 11 months late under the Commission’s procedural rule.

MSHA asserted “excusable negligence” for the delay. This justification was based upon the large volume of cases being handled in the district office (Id. at 1961). Judge McCarthy held a hearing and took evidence on the limited issue of whether MSHA had established adequate cause for the late filings and whether Long Branch Energy had suffered prejudice. MSHA argued that the backlog of contested penalties and the lack of clerical personnel to process the backlog was adequate cause for the delay in filing.

Long Branch Energy asserted that the Commission’s Salt Lake test was binding and requires that MSHA first show adequate cause for the late filing before the operator must show any prejudice. As for the adequate cause showing, Long Branch argued that MSHA’s proffered excuse amounted to nothing more than a statement that “we’re too busy” (Id. at 1964). In addition, Long Branch Energy asserted that MSHA should have anticipated that the increased enforcement and higher civil penalties would result in an increased contest rate and, thus, allocated resources accordingly.

Judge McCarthy ruled that late filings result in the frustration not only of the Commission rules, but of MSHA’s own regulations, such as pattern of violation (Id. at 1968). He also noted that “…the enforcement of penalties primarily promotes the welfare of miners by serving as a deterrent against future violations, and this deterrent effect must be balanced against the recognized public interest in expeditiously resolving contested penalties…” (Id. at 1969). He firmly rejected MSHA’s assertion that the five-year statute of limitations found at 28 U.S.C. § 2462 was applicable to civil penalty proceedings under the Mine Act (Id.).

Judge McCarthy ruled that to survive a motion to dismiss, MSHA must establish adequate cause for the late filing. If adequate cause is not established, the case must be dismissed and the issue of prejudice to the operator is not decided. Only after a finding of adequate cause is established by MSHA does the issue of prejudice become relevant (Id. at 1970).

In Long Branch Energy, Judge McCarthy found that MSHA’s general statements about the nature of the backlog, high caseload, and lack of personnel did not address the specific circumstances of the four petitions at issue. Although McCarthy recognized that enforcement of the 45-day rule for filing might be unreasonable under the current caseload, he ruled that accepting petitions filed seven to 11 months late without a showing of adequate cause would amount to a carte blanche to MSHA to avoid the prescribed filing deadlines (Id. at 1976). Judge McCarthy granted Long Branch Energy’s motion to dismiss the four petitions.

MSHA appealed the decision to the Commission, and the appeal was argued on April 17, 2012. There are approximately 170 other dockets on appeal to the Commission in cases where the administrative law judge found the generalized representations of MSHA about the backlog to be “adequate cause.” The Commission has stayed those appeals pending its decision in Long Branch Energy. Hopefully, the Commission will render a decision this calendar year.

MSHA seems perfectly willing to hold mine operator’s feet to the fire of procedural rules while excusing its own inability to meet the requirements of the Commission rules. A decision by the Commission affirming ALJ McCarthy’s decision will be a wake-up call for MSHA. It’s about time.


Christopher G. Peterson is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or

There are no comments

Your email address will not be published. Required fields are marked *