A government attorney agreed with opposing counsel that the Mine Safety and Health Administration had not justified a proposed 127 percent increase in fines against an Illinois coal operator. The two sides disagreed, however, on the remedy to correct the situation.

The surprising admission came from Sara Johnson, an attorney from the Solicitor of Labor’s office, who was representing MSHA during oral arguments on April 20 in a case before the Federal Mine Safety and Health Review Commission. (Sec’y of Labor v. Am. Coal Co., FMSHRC, LAKE 2011-701, LAKE 2011-881, LAKE 2011-962, LAKE 2012-58, oral arguments, Apr. 20, 2016). MSHA had cited American Coal Co. in 2010 and 2011 for 10 violations at its New Era Mine. Five citations have been settled. The remaining five in dispute addressed allegations that roofs were not shored up sufficiently.

The operator’s attorney told the five-member commission that fines proposed for the five violations should have amounted to about $19,000. Instead, the agency special-assessed them at $43,200, a 127 percent markup, the attorney said, as reported by Bloomberg BNA.

According to the media source, following the company lawyer’s oral argument, Johnson told the commission, “The Secretary of Labor has come to the conclusion that some additional explanation of the penalty amounts is needed.” She also agreed with opposing counsel that MSHA had to prove its allegation that the operator engaged in exceptional misconduct. “The Secretary should carry the burden to justify these penalties,” she stated.

Special assessments generally are reserved for operators who exhibit egregious conduct. American Coal’s attorney disputed that characterization, noting both that the citations were not triggered by accidents and that most of the areas where violations were found were no longer being used. One of the citations was deemed serious, while the other four were listed as moderate.

In a September 20, 2013, decision and order, Administrative Law Judge John Lewis said that the penalties were special-assessed because the violations were among those in MSHA’s Rules to Live By fatality prevention program and “because of Respondent’s past violation history.” However, the operator’s lawyer told the commissioners that New Era Mine is a “massive” mine, and, for that reason, its history of 109 violations over the past two years is a “moderate” number for a mine of that size.

When Commissioner Patrick K. Nakamura asked him when the corporate attorney discovered the company’s history of violations was the trigger for the increased penalty, he answered it was in the Secretary’s closing brief and then in ALJ Lewis’s opinion, Bloomberg BNA reported. The government gave no rationale before those late stages of the litigation.

Johnson said the case should be remanded to MSHA for reassessment. In his rebuttal, American Coal’s attorney disagreed. “The commission should reject the option of remand. They’ve had their chance already,” he said, as quoted by the news service. At least one member of the panel concurred. “Why would you get another chance, a do-over?” Commissioner Michael G. Young asked Johnson. “You muffed it. You had your chance. That’s how I look at it.”