By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

The DC Circuit has just remanded a case to the Mine Safety and Health Review Commission because the Commission failed to explain its departure from its own precedent.

Failure to Contest Proposed Penalties Not Fatal

In this case the mine operator had contested an MSHA citation, but not the related proposed penalties. In Lone Mountain Processing, Inc., 33 FMSHRC Page 2373, No. Kent 2011-1153 (October 11, 2011), the Commission had decided that “Lone Mountain has failed to establish good cause for reopening the proposed penalty assessments.”

The DC Circuit of Appeals, in its remand, notes that “in past orders granting motions to reopen, the Commission has repeatedly stated that the timely challenge to a citation gives a ‘clear’ indication that a mine operator also ‘intend[s] to contest the proposed penalty for that citation’.”  The Court is insistent that the Commission “must address precedent directly on point.”