## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

** **

OFFICEOF ADMINISTRATIVE LAW JUDGES 1331PENNSYLVANIAAVENUE,NW,SUITE520N WASHINGTON, DC20004-1710

TELEPHONE:202-434-9987/FAX:202-434-9949

 

 
| SECRETARY OF LABOR,  MINESAFETYANDHEALTH  ADMINISTRATION (MSHA),

Petitioner

 

v.

 

CONSOLMININGCOMPANY LLC,

Respondent | CIVILPENALTYPROCEEDING

 

DocketNo.WEVA2023-0141

A.C.No.46-09569-568207

 

 

 

Mine:ItmannNo.5 |
|------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------|

 

## ORDERGRANTINGMOTIONTOCONTINUE,DEFERRINGRULINGONMOTIONTOBIFURCATE DOCKET, GRANTING CERTIFICATION OF QUESTION FORINTERLOCUTORY REVIEW

** **

RespondentmovedtocontinuethehearingscheduledforJuly25,2023,becauseofissues with witnessavailability for deposition and pending decisions on docket bifurcation and certificationfor interlocutory review of issues related to this Court’s denial of a proposedpartial settlement.*See*Mot.to Continue, Docket No. WEVA 2023-0141, at 1–2 (June 23, 2023).The Secretary has similarly expressed suchintent.*See*Email from RobertS. Wilson, Attorney for the Department of Labor, to Christopher A. Jannace,Attorney Advisor to the Honorable Judge Michael G. Young (June 26, 2023; 8:56a.m. ET).

 

TheSecretarypreviouslymovedtobifurcatetwounresolvedcitationsfromfourproposed for settlement.*See*S. Mot. to Bifurcate Docket,Docket No. WEVA 2023-0141, at 1 (June 12, 2023);*seealso*S.Mot.toApprovePartialSettlement,DocketNo.WEVA2023-0141,at2(May 9, 2023).I denied the proposed settlement, not on the merits of the contentionsin support, but on the Secretary’s continued misstatement of two cases Ipreviously held inapposite to the Secretary’s asserted unfettered authority toremove S&S designations.*See*OrderDen. Mot. to ApproveSettlement&StrikingMaterialfromMot.,DocketNo.WEVA2023-0141,at1–3(May 11, 2023).

 

Acknowledgingthe parties’ discovery issues, and for the reasons set forth below, I hereby**GRANT**Respondent’smotiontocontinuethehearing,**DEFER**rulingontheSecretary’smotion to bifurcate the docket pending certification and decision by theCommission on the motion to certify an issue in this case for interlocutoryreview, and **CERTIFY**for interlocutory review the question impedingconsideration of the motion to approve settlement.

### I.              ContinuanceofThisMatterisAppropriateandWillBestFacilitatetheEfficientResolution of the Issues Before Me.

** **

TheSecretaryhadrequestedthatthecitationsproposedforsettlementbebifurcatedfrom thosethatappeartobeprogressingtowardaresolutionathearing.Theoperatorhasnowmoved to continue those matters.

 

I generallydisfavor continuance for unresolved discovery, but I have approved an amendmentofthegravityandnegligencefindings,anditisimportanttoensurethattheoperator is not prejudiced by thatdecision.*See*Order GrantingS. Mot. to Amend Pet., Docket No.

WEVA 2023-0141, at 2 (June 16,2023).Furthermore, a continuance mayallow related matters tobetriedtogether,eventually.Ithereforefinditappropriatetocontinuethematterandtodefer ruling on the motion to bifurcateuntil such time as it appears that the issues either must or may not be triedtogether.

 

### II.           CertificationoftheSettlementIssueforInterlocutoryReviewisAppropriate.

** **

I am skepticalof the need to certify for interlocutory review an issue that may not even be aquestion of law, let alone a controlling question.Furthermore, as explained below, there is no reason why theSecretary should not comply with an order to remove material that a tribunalhas deemed to be offensive.As hasbeen explained *ad nauseum*to the Secretary, these cases havenobearingonthequestionsbeforemeandwillnotbeconsidered.Therefore,theirabsence will not affect the resolution ofany issue before me.

 

It would seemthen that the more appropriate course would be to require the offendingmaterials to be excluded, and to permit the Secretary to appeal the question ofa tribunal’s authoritytogoverntheproceedingsbeforeit*after*afinalorderhasbeenissued.However,Ido not have contempt orother power to enforce such an order.

 

I further notethat the Secretary seems not to care whether a final adverse order is issued ornot.In a recent case, she appealedan *approved*settlement, apparently having conflated “adverselyaffectedoraggrieved,”insection113(d)(2)(A)(i)oftheAct,with“annoyed.”*See*S. Pet.forDiscretionaryRev.,DocketNo.WEVA2023-0092(June9*,*2023)(“PocahontasPDR”). While theCommission certainly does have the authority to grant review of importantquestions without a finding that a party has been adversely affected by ajudge’s order, *see*30 U.S.C. § 823(d)(2)(B) (2023), it is telling thatthe Secretary sought, again, to impose her priorities on the Commission.

 

Iwilltherefore**CERTIFY**thefollowingquestionstotheCommissionforinterlocutoryreview, in order to break the impasse and permit this case to proceed towardresolution:

 

1.    WhetheraCommissionJudgemayexclude,strikefromtherecord,andrefusetoconsidermaterial that is scandalous, impertinent, irrelevant, or otherwiseinappropriate; and

2.    Ifso,whetherthecitationsto*MechanicsvilleConcrete*and*AmericanAggregatesof Michigan*are excludable on that basis.

Thepartiesarefurther**ORDERED**tocontinuecoordinatingwiththeCourttoschedulea new hearing date and effect discovery as permitted by the proceduralposture.

 

**III.         ****The Secretary’s Citation to*Mechanicsville Concrete*and *American Aggregates of Michigan*IsNottheResultofa“GoodFaith”Disagreement,butRatheraBlatant and Obvious Misstatement of theLaw.**

** **

While I have certifiedthe question for interlocutory review, it is important for the Commission tounderstand why I have sanctioned the Secretary in this case.The Secretary has assertedthatthereissomerelationshipbetween*MechanicsvilleConcrete,Inc.*,18FMSHRC877 (June1996),and*AmericanAggregatesofMichigan,Inc.*,42FMSHRC570(Aug.2020),andthe question pendingreview—i.e. “Whether the Secretary has unreviewable discretion to remove anS&S designation.”*See*PocahontasPDR at 2–3.But the languagecherry-picked from those decisions, and relied upon by the Secretary, cannotsupport this groundless argument.

 

Forexample,*MechanicsvilleConcrete*notedthatthereis“nomaterialdifferencebetween theSecretary’s [unreviewable] discretion on the one hand to vacate a citation . .. and his discretion on the other hand not to designate a citation as S&S.”Pocahontas PDR at 4 (citing *MechanicsvilleConcrete*, 18 FMSHRC at 879).Butas the Secretary well knows, there *is*a material difference here.

 

This case is not in an enforcement posture, where theSecretary has the discretion conferred by Congress and discussed at length in *MechanicsvilleConcrete*.This case is before theCommission.And just as Congressgranted the Secretary authority over enforcement, it grantedadjudicatoryauthoritytotheCommission,nottotheSecretary.*See*30U.S.C.§830(k) (“Noproposedpenalty*whichhasbeencontestedbeforetheCommission*shallbecompromised, mitigated, or settled *exceptwith the approval of the Commission.*”) (emphasis added).This is black-letter statutory law.

 

Aclosereadingof*MechanicsvilleConcrete*—notthethoughtlessrecitationofanout-of-context quote that the Secretary would have us consider as an “argument”—thusreveals a disturbingirony.Congress’choicesincraftingthe MineAct,andtheCommission’srespectfor thelanguage and structure ordered by Congress are the very bedrock of thatdecision.

 

The respect isobviously not mutual.Just as theCommission affirmed in *Mechanicsville Concrete*that the Secretary’sauthority to assess S&S in the first instance is an enforcement function,theCommissionalsohasaffirmed—inaccordancewiththeclearlanguageoftheAct— that the Commission, and not the Secretary, is responsiblefor approving settlements once a matterhasbeenplacedbeforetheCommission.*SeeTheAm.CoalCo.*,38FMSHRC1972(Aug.2016) (“*AmCoal I*”); *The Am. Coal Co.*, 40 FMSHRC 983 (Aug. 2018)(“*AmCoal II*”).1The

Secretary,though,continuestopretendasthoughthisdidn’thappen—thatshehadsomehow

 

1 It is worth noting that *MechanicsvilleConcrete*was decided decades before the Commission decisionsinthe*AmCoal*cases,whichasexplained,*infra*,unquestionablycontrolthereviewof settlements by the Commission and itsjudges.

prevailedinamatterthat entitleshertociteasauthoritycasesthathavenothingtodowiththeCommission’s established standards for the approval of settlements.

 

The citation to *American Aggregates of Michigan*iseven more problematic.The languagecited by the Secretary, *see*42 FMSHRC at 576, is clearly dicta.It appears in a section titled “CommissionReview” that begins by reaffirming that “*Congress vested the Commission withauthoritytoapprovesettlementsofcontestedassessments*,”citingthelanguageoftheActin section 110(k)of the Act and the Commission’s decision in *AmCoal I*.*Id.*at 575 (emphasis added).

 

Inconcludinginthenextsectionoftheopinionthatthejudgeerredinnotapprovingthe settlement, the Commission led by clearly articulating theapplicable legal standard, adopted in *AmCoal I*: “[T]he Commission andits judges consider whether the settlement of a proposed penaltyis‘fair,reasonable,appropriateunderthefacts,andprotectsthepublicinterest.’”*Id.*at

576.The Commission further noted that its review must ensure that “ajudge’s approval or rejection of a settlement” must be “‘fully supported’ bythe record, consistent with the statutory penaltycriteria,andnototherwiseimproper.”*Id.*(quoting*BlackBeautyCoalCo.*,34FMSHRC 1856, 1864 (Aug.2012)).

 

ThedispositionnowherementionsorreliesupontheSecretary’sexerciseofprosecutorial discretion but concludesinstead that the Judge “erred by denying the settlement on the basis of aninappropriate legal determination on S&S based on an undeveloped record andin contravention to the facts presented by the parties in support of thesettlement.”*Id.*at 577.That is the holding of the case, and anysecond-semester law student who could not recognize it as such would be welladvised to seek another line of work.

 

Thereis,ofcourse,more firmamentsupportingtheunmistakablebasisfortheholding.

TheCommissionnotedthattheproblemwasthattheJudge’sdecisionwas“notsupportedbythe factspresented by the parties” and “misapprehended the correct legal standard”established by the Commission in the *AmCoal*cases.*Id.*at 577.2

 

Incasetherewasanydoubtaboutthegoverningstandardapplicabletosettlements,and the authority for administering thatstandard, the Commission concluded its disposition by observing, again, that

 

Primaryauthority to approve settlements of contested proposed assessments is vested byCongress to the Commission. 30 U.S.C. § 820(k); *AmCoal I*, 38 FMSHRCat1976.WhilesuchauthoritymaybedelegatedtotheJudges,the

 

2The Commission identified nine distinct factual circumstances related to theproposed gravity and negligence modifications, cited by the parties in thesettlement motion, which should have been considered by the Judge, but werenot.*See*40 FMSHRC at 578–79.I concede the possibility that theCommission may find similarly deficientmy evaluation ofthefacts in *Knight Hawk*and/ortheotherS&Scases Ihaverejected.Butitisbeyondquestionthatmyanalysiswill beassessed in accordance with the *AmCoal*standards.

Commissionersretainsuchfullauthoritytoapprovesuchsettlements.Accordingly, we find the profferedpenalty to satisfy *AmCoal*.

 

*Id.*at581.

 

This is all froma case that the Secretary cites as support for her position that she hasunreviewable discretion to remove an S&S designation in settling a matterthat has been contested before the Commission.Where?*How*?The continued misuse of this authorityamountstoabreachoftheethicaldutyofcandortothetribunalorawoeful ignoranceofthelaw and how it operates, either of whichreflects a flagrant disrespect for the law and the tribunals entrusted with itsadministration.

 

The operativesubtext here is that the Secretary has repeatedly tried to wrest from theCommission its statutory responsibilities under the Act.In addition to challenging the Commission’s authority to approvesettlements in the *AmCoal*cases, the Secretary proposed a rule requiringthe Commission to assess penalties in accordance with 30 C.F.R. Part 100,despite Congress’cleargrantofindependentauthoritytoassesspenaltiesundertheAct.*See*30U.S.C.§ 820(i); *Criteria and Procedures for Assessment of Civil Penalties*,79 Fed. Reg. 44,494, 44,510– 11 (July 31, 2014).

 

Theintransigencecontinueswiththeoffensepresentinthiscase.WeareatthispointbecausetheSecretaryhasdisregarded anorder.Toldnottoincludecitationstocasesthat,as fully explainedabove, are not merely irrelevant to the issue for which they are offered butoffensive to constitutional order, she has insisted on citing the cases anyway.3

 

One case, *MechanicsvilleConcrete*, stands for the inverse of the Secretary’s argument— i.e.,theCommissionheldthatCongress’assignmentofresponsibilitiesundertheMineActmust be respected.The other case, *American Aggregates of Michigan*,emphatically and unquestionably reinforces the Commission’s *AmCoal*standardfor reviewing settlements under theActandcannotbereadtosupporttheSecretary’sassertionthatherauthoritymustinsteadbe unreviewable under any standard.

 

Perhaps the Secretarycites these cases because she has no real legal support for her position.A true “good faith argument” in favor ofexpanding the scope of her unreviewable discretionwouldrelyontheD.C.Circuit’sdecisionin*TwentymileCoalCo.*,456F.3d151,152(D.C. Cir. 2006).Of course, citationto *Twentymile*would spotlight the glaring incongruity between the pureenforcement action there and the settlement review authority present here.

 

 

3It is not the Secretary’s claim of unreviewable discretion itself—which is onreview before the Commission—thathasoffendedthisCourt,butthecontinuedcitationtocasesIhaveorderednot beproffered before me because the patently have nothing to do with the issue onreview or the issues before me in any proposed settlement.The Secretary need not cite them insupport of her position, because they have no persuasive force, but she hasnonetheless consciously chosen to disobey my order not to cite them.

Such reviewwould also be required to concede that far from the absence of standards underwhichreviewofpurelyprosecutorialdecisionsmightbeconducted,*seeid.*at155(quoting *Heckler v.Chaney*, 470 U.S. 821, 830 (1985)), the Commission has spoken clearly inestablishing such standards for the approval of settlements.And the Commission has also providedastandardfordeterminingwhether aviolationofamandatoryhealthorsafetystandard is S&S.4

 

Beyond that, theCommission, and not the Secretary, is entitled to deference in theinterpretationand administrationofsections110(i)and(k)oftheAct,becauseCongressvested authorityfortheadministrationofthoseprovisionsintheCommission.Andifevertherewasatime when reflexive deference to the Secretary might have held some currency,that hour has passed.

 

TheSupremeCourthasnarrowedconsiderablytherequirementtodefertotheSecretary’s interpretation of herregulations.*See Kisor v. Wilkie*,139 S. Ct. 2400, 2414–18 (2019).5

Further, there is a growingrecognition of the separation of powers problems inherent with combinedprosecutorial and adjudicatory authority.*SeeJarkesy v. SEC*, 34 F.4th 446, 461(5th Cir.2022)(quoting*Mistrettav.UnitedStates*,488U.S.361,372(1989))(“Congressmaygrant regulatorypower to another entity only if it provides an ‘intelligible principle’ bywhich the recipient of the power can exercise it.”).

 

The Commissiondoes not have the latter problem, because Congress chose to separateenforcement from adjudication under the Act.The sanctity of that choice was recognized in *MechanicsvilleConcrete*anditsfulfillmenthasbeenevincedbytheCommission’sdecisionsin the *AmCoal*cases and cases,including *American Aggregates of Michigan,*controlled by the standardsenunciated therein.

 

 

4I have not made an S&S determination in rejecting any proposed settlement.Instead, I have affirmedeverysettlementagreementremovinganS&Sdesignationforwhichtheanswertothe question, “Would the Secretary beentitled to summary decision on the S&S question based on the factspresented by the parties?” has been, “No.”

5 Itshouldalsobenotedthatsection110(k)wasenactedtopreventabusesofdiscretionbytheSecretary, specifically regarding unsupported settlements that did little toenforce the Act and protect minersafety.*AmCoal I*, 38 FMSHRC at 1976(quoting *BlackBeauty*, 34FMSHRC at 1862) (“[T]he Commission reaffirmed in Black Beauty that Congressauthorized the Commission to approve the settlement of contested penalties insection 110(k) ‘[i]n order to ensurepenaltiesserveasaneffectiveenforcement tool,preventabuse, and preservethepublicinterest.”);*id.*(quotingS.Rep.No.95-181,at44,*reprintedinSenateSubcommittee*onLabor,Committee on Human Res., 95th Cong., *Legislative History of theFederal Mine Safety and Health Act of 1977*, at 633 (1978)) (“‘By imposing[the] requirements’ of section 110(k), it ‘intend[ed] to assure that the *abusesinvolved in the unwarranted lowering of penalties as a result of theoff-the-record negotiations*are avoided.’”).The Secretary should not have the authority to interpret theprovision to limit Commission review and enable the offensive settlementsCongress intended to prevent.

It is thusabundantly clear that the Secretary’s defense of the continued citation tothese cases is meritless.Aristotlesaid, “The law is reason, free from passion.”But citations to the law,freefromreason,aresimplenonsense.Oncethelackofanyreasonablebasisforanassertedlegal authority has been pointed out to an attorney *by a judge*, it isincumbent on that attorney to cease engaging in malpractice.The issue presented here is about morethan the mere choices made in the citation of cases.While I have certified a question for interlocutory review, anunasked and important question is, “Who determines the appropriate minimum standardsof competence and conduct before a tribunal—the tribunal or a party litigant?”

 

Is there acounty magistrate anywhere in the country who would not be offended by the meresuggestion of this inversion of authority?Idoubt it, and if the Commission has any self- regard,itwillrebuketheSecretary,asIhavedone,forherdisregardforconstitutionalorderandthe rule of law, manifested in her continuing contempt for the authority of theCommission and its decisions and orders.

 

 

 

 

/s/Michael G. Young

Michael G. Young

AdministrativeLawJudge

 

 

Attachments:

 

AppendixA:SecretaryofLabor’sMotiontoApprovePartialSettlement,DocketNo.WEVA2023-0141 (May 9, 2023)

 

Appendix B:   OrderDenyingMotiontoApproveSettlementandStrikingMaterialfrom Motion, DocketNo. WEVA 2023-0141 (May 11, 2023)

 

Appendix C:   SecretaryofLabor’sMotiontoBifurcateDocket,DocketNo.WEVA2023-0141 (June 12, 2023)

 

AppendixD:Secretary’sMotionforCertificationforInterlocutoryReviewandStayPending Review, and Renewed Motion toBifurcate, Docket No. WEVA 2023-0141 (June 20, 2023)

 

AppendixD:MotiontoContinue,DocketNo.WEVA2023-0141(June23,2023)

 

Appendix E:    DecisionApprovingSettlementWithSignificantReservations,DocketNo. WEVA 2023-0092 (May 12, 2023)

 

Appendix F:    Secretary’sPetitionforDiscretionaryReview,DocketNo.WEVA2023-0092(June 9, 2023)

Distribution:

 

RobertS.Wilson,OfficeoftheSolicitor,U.S.DepartmentofLabor,20112thStreetSouth,Suite 401, Arlington,VA 22202-5450, wilson.robert.s@dol.gov

 

D.CassTrent,CLR,U.S.DepartmentofLabor,MSHA,4499AppalachianHwy,Pineville,WV 24874, trent.david@dol.gov

 

JimMcHugh,HardyPenceLLC,10HaleStreet,4thFloor,P.O.Box2548,Charleston,WV 25329, jmchugh@hardypence.com

 

CraigAaron,CONSOLEnergyInc.,275TechnologyDrive,Suite101,Canonsburg,PA15317,craigaaron@consolenergy.com

 

 

 

# APPENDIXA

** **

FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

 OFFICEOF ADMINISTRATIVE LAW JUDGES

 

 

SECRETARYOFLABOR,:      CIVILPENALTYPROCEEDING

MINESAFETYANDHEALTH:

ADMINISTRATION(MSHA),:      DocketNo.WEVA2022-0141

Petitioner:      AssessmentControlNo.46-09569-568207

        :

                                                 v.:

                                                                                          :                   MineID:46-09569

ConsolMiningCompanyLLC,:           Mine:ItmannNo.5

Respondent:

 

 

AdministrativeLawJudgeYoung

 

## SECRETARYOFLABOR’SMOTIONTOAPPROVE PARTIAL SETTLEMENT

** **

TheSecretaryofLaborfilesthisMotiontoApprovePartialSettlement,andinsupporthereof respectfully submits the following.

1.     This case involves six 104(a)citations of which four the parties have reached agreement onasettlement.Thetworemainingcitations(Nos.9590300and9590301)arescheduledfor hearing July 25, 2023. The Mine Safety and Health Administration (“MSHA”)proposedcivilpenaltiesforthecitationsatissueinaccordancewiththestatutorypenalty criteria in § 110(i) of the Mine Act, 30 U.S.C. §820(i).The penalties were regularlyassessed pursuant to 30 C.F.R. § 100.3

2.     RespondentistheoperatoroftheItmannmine,MineIDNumber46-09569,theproductsof which enter commerce, or the operations or products which affect commercewithin the meaning of Section 4 of the Act.

3.     Representatives for the parties haveconsidered the alleged violations, the six statutory criteria stated in §110(i) of the Act, and other non-monetary considerations that fall outsideof§110(i)butthatsupportsettlement,andproposetomodifythepenaltiesforthesettled citations as follows:
|  

 

**Citation** | **MSHA’s**

**Proposed  Penalty**   |  

**Settlement  Amount** |  

 

**Othermodificationstocitation**                    |
|------------------------------|--------------------------------------|---------------------------------|---------------------------------------------------------------------|
| 9569452                      | $1,869                               | $840                            | Modifynegligencetolow                                               |
| 9569457                      | $563                                 | $133                            | Modifyfromreasonablylikelytounlikelyand from S&S to Not S&S |
| 9569459                      | $133                                 | $133                            | Modifynegligencetonone                                              |
| 9569462                      | $909                                 | $407                            | Modifynegligencetolow                                               |
| **Total**                    | $3,474                               | $753                            |                                                                |

 

 

4.     The legal standard for evaluatingproposed penalty reductions is whether the proposed reductionsarefair,reasonable,appropriateunderthefacts,andprotectthepublicinterest. *American Coal Company*,40 FMSHRC 983, 987 (Aug. 2018) (citing *American Coal*

*Company*,38FMSHRC1972,1976(Aug.2016)).

 

5.    Consistent withCommission precedent, the Secretary has evaluated the enforcement value of thecompromise and is maximizing his prosecutorial impact in partially settlingthis case on appropriate terms.See *AmericanCoal Company*, 40 FMSHRC 983, 989 (Aug. 2018).Further, the Secretary has considered the deterrent value of thepenalty and obtaining a partial resolution to this matter.See *American Coal Company*, 40FMSHRC 765,766n.1(June2018).Apartialresolutionofthismatterinwhichsomeviolationsare resolved is of significantenforcement value to the Secretary.Thefact that the Secretary modified the citations in this case is immaterial, asthe Secretary’s evaluation of these citations, as modified, remain preservedfor future enforcement actions and are not subject to potential vacatur orfurther downward adjustment after a hearing.

6.     ToassisttheCommissioninevaluatingwhethertheproposedpenaltyreductionsarefair, reasonable,adequateunderthefacts,andinthepublicinterest,theSecretarypresentsthe following information.Asdescribed more fully below with respect to each citation, and

unless otherwisestated, the parties agree to disagree, and the proposed penalty modificationstothesecitationsareacceptabletothepartiesinlieuofthehearingprocess.

A.    Citation 9569452 – Respondent arguesthe condition was likely caused by equipment tramming through the area andcould have occurred at any time withoutmanagement’sknowledge.MSHArecognizesthatconditioncouldhave occurred at any time and without warning. The parties have agreedthat the citation shall be modified to low negligence with a recalculation ofthe penalty from $1,869 to $840 per Part 100.

B.    Citation 9569457 – Respondent arguesthat the cited area was infrequently traveled because it was on the tight sideof the belt, between the rib and the belt, and was in an outby area. Respondentalso argues that thecited sectionof rib was not likely to fail, required significant force with a pry bar topull and disputes the statement that the section of rib was pulled with littleeffort. Taking into account theuncertaintyoftheoutcomeoftheseissuesattrial,theSecretaryhasdecidedto exercise her discretion to modify thegravity to unlikely and not S&S as recognized in *Am. Aggregates ofMichigan, Inc.*, 42 FMSHRC 570, 576-79 (Aug. 2020) (citing *MechanicsvilleConcrete, Inc.*, 18 FMSHRC 877, 879-80 (June 1996)). The parties have agreedthat the citation shall be affirmed as otherwise issued and the penalty isrecalculated to $133 per Part 100.

C.    Citation9569459–Respondentwouldargueathearingthatthecitationshouldbe vacated because thecited fire suppression system was in proper working condition and free of anydefects. The cited condition was the normal result of mining in the face andthe material would have been removed prior to taking the

nextcut.Thepartieshaveagreedtosettlethecitationbymodifyingthe negligence to none. The penaltyremains at $133.

D.    Citation9569462–Respondentarguesthatthecitedmaterialsresultedfroma combination of spillage, sloughage o theribs and the scoop cleaning the area creatingwindrows.Thepartiesagreetomodifythe citationtolownegligencewhich lowers the penalty to $407 per Part 100.

7.     In accordance with 29 C.F.R. §2700.31(b)(2), the undersigned representative for the Secretary certifies thatRespondent has authorized the Secretary to represent that Respondentconsentstothegrantingofthismotionforapprovalofpartialsettlementand the entry of the proposed Order Approving PartialSettlement.

8.     Thepartiessubmitthattheforegoingpenaltyreductionsarefair,reasonable,appropriate under the facts, and protect the public interest.

9.     Thepartiesagreetobeartheirownattorney’sfees,costs,andotherexpensesincurredby the parties inconnection with any stage of the above referenced proceedings, includingattorney’s fees which may be available under the Equal Access to Justice Act,as amended.

10.  Except for proceedings under the Act,nothing contained herein is intended by RespondenttoconstituteanadmissionofaviolationoftheActorregulations.Further, except for proceedings under the Act, nothingcontained herein is intended by Respondenttoconstituteanadmissionofcivilliabilityunderanylocal,stateorfederal statute or any principle of commonlaw.

11.  Within30daysofanorderapprovingthissettlement,theRespondentshallpayapenalty of$753.00atwww.pay.govorbysendingacheckmadepayableto“U.S.Departmentof

Labor/MSHA”andmailedtothefollowingaddress:P.O.Box790390,St.Louis,MO 63179-0390.

WHEREFORE,thepartiesmovetheAdministrativeLawJudgetoapprovetheabovepartial settlement agreement pursuant to 29 C.F.R. § 2700.31 and to orderpayment of the proposed penalty of $753.00.

MailingAddress:                                             Respectfullysubmitted,

 

Office of the Solicitor                                     SeemaNanda 

Division of Mine Safety andHealth                                                             SolicitorofLabor

U.S.DepartmentofLabor

20112th Street,Suite401                                AprilE.Nelson

Arlington,VA22202-5450                             AssociateSolicitorforMineSafetyandHealth

 

JasonGrover

Counsel

 

*/s/RobertS.Wilson***

RobertS. Wilson

Attorney

 

UNITEDSTATESDEPARTMENTOFLABOR

 

AttorneysforPetitioner

 

## CERTIFICATEOFSERVICE

** **

IherebycertifythatonMay9,2023,acopyoftheforegoingSecretaryofLabor’sMotion to Approve Partial Settlement was served by Electronic Mail onthe following:

James P. McHugh

jmchugh@hardypence.com

 

Craig Aaron

craigaaron@consolenergy.com

 

 

*/s/RobertS.Wilson***

RobertS. Wilson

Attorney

# APPENDIXB

** **

** **

** **

## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

** **

OFFICE OF ADMINISTRATIVELAW JUDGES 1331PENNSYLVANIAAVENUE,NW,SUITE520N WASHINGTON, DC20004-1710

TELEPHONE:202-434-9987/FAX:202-434-9949

 

May11,2023

 
| SECRETARY  OF LABOR, MINESAFETYANDHEALTH  ADMINISTRATION (MSHA),

Petitioner

 

v.

 

CONSOLMININGCOMPANY LLC,

Respondent | CIVILPENALTY  PROCEEDING

 

DocketNo. WEVA2023-0141

A.C.No.46-09569-568207

 

 

 

Mine:ItmannNo.5 |
|------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------|

 

## ORDERDENYINGMOTIONTOAPPROVESETTLEMENTAND STRIKING MATERIAL FROM MOTION

** **

On April 25,2023, a Commission ALJ issued an order noting with disapproval the Secretary’songoingcitationto*MechanicsvilleConcrete, Inc.*,18FMSHRC877,880,882(June 1996), asauthorityfor herremovalofthe significant and substantial designationsfrom citations during the settlementprocess.*See*DecisionApproving Settlement with Significant Reservations, Docket no. PENN 2022-0129,at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”).

Commissionjudgeshaveroutinelyobservedthat*Mechanicsville*,andthealsooft-cited*American Aggregates of Michigan, Inc.*,42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise for which they havebeen cited.1

 

In thisinstance, though, the Judge correctly pointed out that parties have a duty notto misstate case law and that such misconduct has been affirmed as sanctionableunder Rule 11 of theFederalRulesofCivilProcedure.*See*Reservationsat6(citing*TeamstersLocalNo. 579v.B & M Transit, Inc.*,882 F.2d 274, 280 (7th Cir. 1989)).

 

Following this,I issued an order on May 3 denying a motion to approve settlement, in which Isaid that the continued citation to these cases as authority for the removal ofS&S designationsfallsbelowtheminimumstandardsofpracticebeforetheCommission.*See*OrderAccepting Appearanceand DenyingMotion to ApproveSettlement,Docket No.WEVA2023- 0071, at 7(May 3, 2023) (ALJ).I said that aconference and litigation representative who submitted a motion with suchcitations would be barred from practice before me.*Id.*

1*See*Decision Approving Settlement,Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order DenyingSettlement,DocketNo.WEST2022-0249,at5(Nov.2,2022)(ALJ);OrderDenying Settlement, Docket No. WEST2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ).

I also said thatthere mightbe otherconsequences.I notedthat anattorney shouldknow better, andthatsuchmisstatementsof thelawbyanattorneywouldbeevenmoreegregious.*Id.*at 7 n.5.Thesupervising attorney for the Labor Department’s CLR’s was included in thedistribution for the order.

 

On May 9, theSecretary filed with the Commission a Motion to Approve Partial Settlement,which again included the offending citations to *Mechanicsville*and *AmericanAggregates*.*See*S. Mot. toApprove Partial Settlement, Docket No. WEVA 2023-0141, at 3 (May 9, 2023).Not only is the recitation of these casesobviously inappropriate; it is impertinent.Tomy knowledge, no Commission judge has agreed with this mischaracterization ofthelaw, andI haveapproveddozensofS&Sremovalswithoutever consideringeither caseasauthority for the removal.Ratherthan adhering to the clearly-expressed expectations of the Commission’s judges,the Secretary has continued to recite this non-sequitur any time an S&Sdesignation is proposed for removal in a settlement.

 

An attorney fora government agency who misstates the law arrogates the properly conferredconstitutionalauthorityof otherstodeterminewhatthelaw*is.*Likebridgescour, this subtlecorrosion wears on the foundation of the rule of law and threatens theintegrity of a structure upon which the public depends.

 

While the fullarray of sanctions under Rule 11 may not be available as a corrective, I havemade clear that misleading use of precedent fails to meet the minimum standardsofpracticebeforetheCommission.Itsredressbeginswitharefusaltoaccepttheunacceptable.By this order, I therefore **STRIKE**thereference to the cited cases and the assertions they purportedly support.2

 

Strikingmaterial, and even professional sanctions, are appropriate responses to badfaith employment of case law.*SeeCollar v. Abalux, Inc.*, 806 Fed. Appx. 860, 864 (11th Cir. 2020) (affirmingsanctions where an attorney continually misstated the import of case law); *Kamdem-Ouaffov. Huczko*,810Fed.Appx.82,83(3dCir.2020)(citingFed.R.Civ.P.12(f))(notingthat impertinent analysis of lawis“plainly vulnerable to []remedialstrike”). Strikingthe impertinentmatter from the motion is the least severe sanction I could impose in thesecircumstances.As with the Mine Act,those who persist in the discredited and misleading use of precedent shouldreasonably anticipate that their conduct will be deemed knowing or intentionaland will be addressed with progressive severity until the practice isdiscontinued.

 

The motion toapprove settlement is **DENIED**without reaching the merits.This denial will be reconsidered if thepartiesrefile the motionwithout thenoted language,*see supra*note 2. Thepartiesshould anticipatethat themattersaddressed by themotion willberesolved at hearing unlessanduntilamotionthatmeetsthestandardsof practicebeforetheCommissionhasbeen filed.

 

2The language to be stricken from the motion reads: “Taking into account theuncertainty of the outcomeof theseissuesattrial,theSecretaryhasdecidedtoexerciseher discretiontomodifythe gravity to unlikely and not S&S asrecognized in *Am. Aggregates of Michigan, Inc.*, 42FMSHRC 570, 576-79 (Aug. 2020) (citing *MechanicsvilleConcrete, Inc.*, 18 FMSHRC 877,

879-80(June 1996)).”Mot.at3.

 

 

Michael G. Young

 AdministrativeLawJudge

 

 

 

Distribution:

 

RobertS.Wilson,OfficeoftheSolicitor, U.S.DepartmentofLabor, 20112thStreetSouth,Suite 401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov

 

D.CassTrent,CLR,U.S.DepartmentofLabor,MSHA,4499AppalachianHwy,Pineville,WV 24874, trent.david@dol.gov

 

JimMcHugh,HardyPenceLLC,10HaleStreet,4thFloor,P.O.Box2548,Charleston,WV 25329, jmchugh@hardypence.com

 

CraigAaron,CONSOLEnergyInc.,275TechnologyDrive,Suite101, Canonsburg,PA15317, craigaaron@consolenergy.com

#  

#  

#  

# APPENDIXC

** **

** **

UNITEDSTATESOFAMERICA

FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION WASHINGTON, DC

 

SECRETARYOFLABOR,)      CIVILPENALTYPROCEEDING

U.S.DEPARTMENTOFLABOR(MSHA))

Petitioner,)      DocketNo.WEVA2023-141

)      A.C.No.46-09569-568207

v.)

)                                                                             Mine:ItmannNo.5 CONSOL MINING COMPANY, LLC,              )      Mine ID: 46-09569

Respondent.)

### )TheHonorableJudgeMichaelYoung

** **

SECRETARYOFLABOR’SMOTIONTOBIFURCATEDOCKET

 

TheSecretary moves that the Administrative Law Judge issue an Order bifurcatingthis docketintotwodocketssothatthecasecanproceedtohearingonthetwounresolvedcitationsin the docket and so the Secretary can pursue an appeal of theMay 11, 2023, Order Denying Motion to Approve Partial Settlement and imposingsanctions issued by the ALJ.

1.  Thisdocketcontainssix104(a)citations.Thepartiesreachedasettlementagreement resolving four of the citations.The parties have not reached settlement of the two remaining citations,Nos.9590300and9590301.Ahearingis scheduledfor July25,2023.Thepartiesare engaged in ongoing discovery andhearing preparation for the two unresolved citations. Depositions are scheduledfor June 28 and 29. The Secretary recently filed a motion to amend the petitionseeking to increase the gravity and negligence findings for the two unresolvedcitations and to seek correspondingly increased penalties. (See Secretary ofLabor’s Motion to Amend Petition dated June 6, 2023)

2. The Secretaryfiled a Motion to Approve Partial Settlement on May 9, 2023, seeking approvalof the penalty reductions agreed to by the parties on the four settledcitations. The AdministrativeLawJudgeissuedanOrderDenyingMotiontoApproveSettlementandStriking Material from the Motiondated May 11, 2023. That Order denied the motion to approve partial settlement,imposed sanctions on the Secretary and threatened additional more severesanctions inthefuture.Thepurposeofthiscurrentmotionistoadvancetheprogressandresolutionofthis case and doesnot address the merits of the court’s May 11 Order. However, the Secretary hasfiled a Petition for Discretionary Review with the Commission, seeking reviewof that Order, dated June 9, 2023.

3.  Meanwhile,thepartiesarefacedwithuncertaintyonhowtoproceedwiththe matter.

 

Thepartiescontinuetoprepareforhearingonthetwocitationsthathavenotbeensettledbutitis unclear how that hearing will proceed. The parties do notwant to expend time and resources on thefourcitationsonwhichthepartiesagree.Ontheotherhand,thepartiesdonotwanttoappear at the hearing and be unpreparedto address citations that the court expects to be addressed.

Additionally,theissuesraisedandaddressedintheOrderDenyingPartialSettlementdonot apply to the two remaining citationsin the docket that have not been settled.

4. As a solution tothe above stated uncertainty and the conundrum that the parties face, theSecretarymovesthatthecourtissueanOrderbifurcatingDocketWEVA2023-0141intotwodockets. The newly created docket would contain the two citations not addressedin the Secretary’s Motion to Approve Partial Settlement. The four citationsthat are addressed in that motion would remain in Docket WEVA 2022-411. TheSecretary will pursue appropriate appellate remedies to challenge the denial ofthe motion, the imposition of sanctions and the threat of additional moresevere sanctions. The remaining citations, Nos. 9590300 and 9590301, could thenbe addressed apart from that dispute and would proceed to hearing on July 25.

5.  DelayingresolutionofthecitationsnotdirectlyinvolvedintheMay11Orderwouldnegatively impact the administration of the Act and would be contrary to thesafety promoting

purposeoftheAct.AprimarypurposeoftheActistoprotectminersfromhazardousconditions. ThecompanyhaschallengedtheS&Sfindingsforthetworemainingcitations.Citation9590300involvesaninadequately insulatedelectricaltrailingcableexposingminerstoanelectricalshock or electrocution hazard. Citation9590301 involves an inadequately supported section of rib which exposed minersto a rib fall hazard. Consol’s refusal to acknowledge that these violationscontributed to these serious hazards and posed a serious risk of injury raisesconcerns about Consol’s future compliance with the Act. A final resolution ofthese citations and imposition of an appropriate civil penalty will encouragecompliance and will promote protection of Consol’s workforce.

6.  From thecompany’s perspective, expeditious resolution of the citations is alsoimportant. Should Consol prevail on the S&S issues, prompt resolution ofthose issues is importantbecausethemine’spatternofviolationsstatusisbasedonissuedcitationsandsolong as the citations remain unresolved,those violations count towards the mine’s POV status.

7.  There areadditional reasons why prompt finality of the violations at issue promotes theefficient administration of the Act. Pursuant to Part 100.3(c) of theSecretary’s penalty regulations,violationsarenotcountedaspartofamine’shistoryofviolationsuntiltheviolation is final. Bifurcating thismatter will allow the other citations at issue to become final while thesettlementdisputeisresolved.Bifurcationandseparatelyaddressingtheremainingcitationswill also allow for the timelier imposition of civil penaltiesfor those violations. Prompt assessment and collection ofcivil penalties forfinal violations promotes thepurposeoftheAct and delay in the assessment and collection of thosepenalties has the opposite effect. Civil penalties are recognized as animportant tool in encouraging compliance by mine operators. Allowing thesecitations to flounder while the settlement issue is resolved will undercut thepurpose of the Act

by unnecessarilydelaying the finality of those violations and the imposition of civilpenalties. Resolutionoftheissueraisedinthecourt’sMay11Ordercouldconceivablytakeyearspending consideration by the Commissionand then possibly a court of appeals.

8.   Fortheabovereasons,theSecretarymovesthatanOrderbeissuedbifurcatingDocket WEVA2023-0141 into two separate dockets, that the hearing scheduled for July 25proceed and be limited to consideration of Citations 9590300 and 9590301.

9.  The undersignedhas conferred with counsel for Consol and he has indicated that Consoltakesnopositiononthemotionatthistimebutreservestherightto filearesponsetothemotion pursuant to Commission Rule 10(d).

WHEREFORE, the Secretary moves that an Order be issued bifurcating thisdocket, creatinganewdocket,transferringCitationNos.9590300and9590301tothenewdocket,and proceeding on those citations as discussed above.

MailingAddress:                                            Respectfullysubmitted,

 

Office of the Solicitor                                     SeemaNanda 

Division of Mine Safety andHealth                                                             SolicitorofLabor

U.S.DepartmentofLabor

120112th StreetSouth                                    AprilE.Nelson

Arlington,VA22202-5450                             AssociateSolicitorforMineSafetyandHealth

(202)693-9325

JasonGrover

CounselforTrial Litigation

 

*/s/Robert S. Wilson***

RobertS. Wilson SeniorTrialAttorney

AttorneysforSecretaryofLabor (MSHA)

CERTIFICATEOFSERVICE

 

IherebycertifythatonJune12,2023,atrueandcorrectcopyoftheforegoingSecretary of Labor’s Motion to Bifurcatewas sent via email attachment to:

James P. McHugh 

jmchugh@hardypence.com

 

 

*/s/ Robert S. Wilson*

**Robert S. Wilson

 SeniorTrialAttorney

 

 

# APPENDIXD

** **

** **

UNITEDSTATESOFAMERICA

FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION WASHINGTON, DC

 

SECRETARYOFLABOR,)            CIVILPENALTYPROCEEDING

U.S.DEPARTMENTOFLABOR(MSHA))

Petitioner,)           DocketNo.WEVA2023-141

)           A.C.No.46-09569-568207

v.)

)                                                                              Mine:ItmannNo.5 CONSOLMININGCOMPANY,LLC,)           MineID:46-09569

Respondent.)

### )�eHonorableJudgeMichaelYoung

** **

SECRETARY’SMOTIONFORCERTIFICATIONFORINTERLOCUTORYREVIEWAND STAY PENDING REVIEW,AND RENEWED MOTION TO BIFURCATE

 

 

�eSecretary moves that the Administrative Law Judge certify for interlocutoryreview this question: whether the May 11, 2023, Order Denying Motion To ApproveSettlement And StrikingMaterialFromMotionisanabuseofdiscretion.�eSecretaryalsorenewshermotionto bifurcate and moves for stay of partof the bifurcated docket pending interlocutory review. �is will enable theSecretary to appeal the May 11 order while not delaying the resolution of therest of this case.

### Background

** **

1.    On May 9, 2023,the Secretary filed a motion to approve partial settlement in this case. �emotion explained that the Secretary decided to modify the negligence on threeviolationsinthisdocket,andonafourth,tomodifythegravityandremovetheS&Sdesignation.

2.    OnMay11,2023,theAdministrativeLawJudgeissuedanorderdenyingthatmotion and sanctioningthe Secretary for articulating her legal position—currently on appeal—that shehas unreviewable discretion to remove S&S designations. �e order also saidthat the Secretary shouldexpectincreasinglyseveresanctionsiftheSecretaryarticulatesthatpositioninthefuture.

3.    On May 12, 2023,in *Pocahontas Coal Company LLC*, WEVA 2023-0092, the Administrative LawJudge issued an Order Approving Settlement with Significant Reservations inwhichheputtheSecretary’srepresentativeonnoticethatarticulatingtheSecretary’sposition on S&S removals would resultin future sanctions.

4.    OnJune9,2023,theSecretaryfiledapetitionfordiscretionaryreviewofboththe May 11 order in this case and the May 12 *Pocahontas*orderwith the Commission.

5.    OnJune16,2023,theCommissiongrantedtheSecretary’spetitionin*Pocahontas*but denied it, without prejudice, inthis case. �e Commission reasoned that the May 11 order was not afinal AdministrativeLawJudge’sorder, so interlocutory reviewwastheappropriateway to obtain Commission review. �eCommission also noted that the Secretary’s motion to bifurcate is pending, andthat bifurcating this matter “would both facilitate potential Commissioninterlocutoryreviewand preventanyunintentionaldelaysleadinguptothescheduledhearingon the unresolved citations.”

### CertificationforInterlocutoryReview

** **

6.    Interlocutoryreviewisappropriatewhenarulinginvolvesacontrollingquestionof law andimmediate review will materially advance the final disposition of theproceeding. 29

C.F.R.2700.76(a)(1)(i).

 

7.    �eMay11orderisbasedontwolegalconclusions:thattheSecretarydoesnothave unreviewable discretion to removeS&S designations, and that it is a sanctionable misstatement of law to takethe position that she does. If those conclusions are wrong, then the order isan abuse of discretion. *The Am. Coal Co.*, 38 FMSHRC 1972, 1984 (Aug.2016) (“An abuse of discretion may befound. . . ifthedecision is based on an improperunderstanding ofthelaw.”).

�eSecretaryseekscertificationofquestionsthatwilldeterminewhetherthoseconclusionsare

wrong.�osequestionsthereforearecontrolling,andcertificationandwouldmateriallyadvance the final disposition of the proceedings. See Wright& Miller, *Federal Practice and Procedure*

§ 3930 (3d ed.)(“�ere is no doubt that a question is ‘controlling’ if its incorrectdisposition wouldrequirereversalofafinaljudgment,eitherforfurtherproceedingsorforadismissalthat might have been ordered without theensuing district-court proceedings.”).

8.    Certification alsois appropriate because the same question—whether it is an abuse of discretionto sanction the Secretary for articulating her legal position on S&Sremovals—is now pending review in *Pocahontas*. �ere is no briefingschedule in that case yet, so certification wouldnotdelaytheresolutionoftheissue,anditwouldbeefficienttopermittheCommissionto resolve this case at the same time asit resolves *Pocahontas*.

### Bifurcate

** **

9.     �eSecretaryrenewsherJune12,2023,motiontobifurcate.Itwouldbeefficientto bifurcatethiscaseforthereasonsexplainedinthatmotion,andforthereasonscontainedinthe Commission’sorder denying discretionary review in this case.

### StayPendingReview

** **

10. If the motion tobifurcate is granted, the Secretary moves for a stay of this docket (containingthe four settled citations, not the docket containing the two citations to betried) pending interlocutory review. A stay would allow the underlying legalissues to be resolved, allowtheSecretarytopreserveherlegalposition,andallowthepartiestopreservethesettlementto which they have agreed.

11. �e AdministrativeLaw Judge has stayed other similar cases in which settlement denials arepending interlocutory review by the Commission. *See, e.g.*, Order DenyingCertificationforInterlocutoryReviewandStayingProceedings,*PeabodyGatewayN.Mining,*

*LLC*,No.LAKE2023-0043(FMSHRCMar.8,2023)(ALJ);OrderDenyingMot.toApprove Settlement, Certifying Casefor Interlocutory Review, and StayingProceedings, *BluestoneOil Corp.*,Nos. WEVA 2022-0176 et al. (FMSHRC Oct. 31, 2022) (ALJ). It would be fair toConsol, and to the Secretary, to take the same approach in this case.

12. �eundersignedhasconferredwithcounselforConsol;ittakesnopositionontheSecretary’s motion.

MailingAddress:

 

OfficeoftheSolicitor

DivisionofMineSafetyand Health

U.S.DepartmentofLabor

20112thStreetSouth,Suite401

Arlington,VA 22202

(202)693-9325

 

Respectfullysubmitted,

 

SeemaNanda

SolicitorofLabor

 

April E. NelsonAssociateSolicitor

 

JasonGrover

CounselforTrial Litigation

 

*/s/ Robert S. Wilson***

Robert S. Wilson 

SeniorTrialAttorney

 

AttorneysforSecretaryofLabor (MSHA)

### CertificateofService

** **

IherebycertifythatonJune20,2023,atrueandcorrectcopyoftheforegoingmotionwassent via email attachmentto:

 

James P. McHugh 

jmchugh@hardypence.com

 

*/s/ Robert S. Wilson*

**Robert S. Wilson 

SeniorTrialAttorney

 

 

 

# APPENDIXE

** **

## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

** **

OFFICE OF ADMINISTRATIVELAW JUDGES 1331PENNSYLVANIAAVENUE,NW,SUITE520N WASHINGTON, DC20004-1710

TELEPHONE:202434-9987/FAX:202434-9949

 

May12,2023

 
| SECRETARY OF LABOR, MINESAFETYANDHEALTH ADMINISTRATION (MSHA),

Petitioner

 

v.

 

POCAHONTASCOALCOMPANYLLC,

Respondent | CIVILPENALTY PROCEEDING

 

DocketNo.WEVA2023-0092

A.C.No.46-08878-565698

 

 

Mine:AffinityMine |
|---------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------|

 

 

**ORDERACCEPTINGAPPEARANCE**

**DECISIONAPPROVINGSETTLEMENTWITHSIGNIFICANTRESERVATIONS****ORDER TO MODIFY**

**ORDERTOPAY**

** **

Before:Judge Young

 

Thiscaseisbeforemeuponpetitionforassessmentof civilpenaltyunder Section105(d) of theFederal Mine Safety and Health Act of 1977.The Secretary has filed a Motion to Approve Settlement and has set forththe factual basis for the proposed modifications.The Respondenthasagreedtotheproposedchanges.Theoriginallyassessedamountfor thecitation at issue was $3,171.00, and theproposed settlement amount is $2,695.00.

 

Itis**ORDERED**thattheConferenceandLitigationRepresentative(CLR)beacceptedto represent the Secretaryinaccordance withthe notice oflimited appearance he has filedwiththe penalty petition.*CyprusEmerald Resources Corporation*, 16 FMSHRC 2359 (Nov. 1994).

 

Theproposedsettlementincludes:

 
| **Citation/Order****No.** | **Originally  Proposed Assessment** | **Settlement  Amount** |  

**Modifications** |
|---------------------------|--------------------------------------|-------------------------|---------------------------|
| 9550934                   | $169.00                              | $169.00                 | None.                     |
| 9550935                   | $169.00                              | $169.00                 | None.                     |
| 9550936                   | $169.00                              | $169.00                 | None.                     |

| **Citation/Order****No.** | **Originally Proposed Assessment** | **Settlement  Amount** |  

**Modifications**                                                                                                                              |
|---------------------------|------------------------------------|-------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------|
| 9550403                   | $133.00                            | $133.00                 | None.                                                                                                                                                  |
| 9550937                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550938                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550939                   | $183.00                            | $183.00                 | None.                                                                                                                                                  |
| 9550940                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550941                   | $198.00                            | $198.00                 | None.                                                                                                                                                  |
| 9550942                   | $188.00                            | $188.00                 | None.                                                                                                                                                  |
| 9550943                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550404                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
|  

9557339           |  

$610.00                    |  

$134.00         | Modifygravityfrom“ReasonablyLikely” to “Unlikely,” and from “S&S” to “Non- S&S,”andnegligencefrom“Moderate” to

“Low.”                         |
| 9551135                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9551136                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9551137                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| **Total**                 | **$3,171.00**                      | **$2,695.00**           |                                                                                                                                                   |

 

Thepartieshaveset forththejustificationforthemodificationsin themotionfiled bythe Secretary.As required bythe Mine Act, I have reviewed the motion and penalty criteria and evaluated theproposed settlement pursuant to the requirements set forth in Sections 110(i)and

110(k).The parties agree to the size of this operator, good faith abatement,and the ability to pay.Thehistoryofviolationhasbeenconsidered.Thenegligenceandgravityof theviolation are addressed in the motion, in the citations, and in the filein general.

 

Citation9557339concernsafailuretoconductarequiredmethanetest.Thecited provision states:

 

A qualifiedperson shall make tests for methane—(iii) At 20-minute intervals, or more oftenif required in the approved ventilation plan at specific locations,during the operation of equipment in theworking place.

 

30C.F.R.§75.362(d)(1)(iii)(2023).Thecitationreads,in part:

 

The roof boltoperators installing permanent roof support on the No. 3 active section (005-0/ 002-0 MMU’s) in the 5X6 cross-cut exceeded the 20 minute required methanetest.The roof bolt operators werebeing observed installing bolts, when 25 minutes elapsed and no attempted [sic]was made to take the required methane test.Askedthe operators what time was the last methane test was[sic]taken,bothoperatorscouldnotsaywhenthemethanetestwasmade.

The roofbolting machine was shut off and an examination was made with an extendableprobe and large display CH4 detector.Thismine is on a 10 day methane spot.

 

CitationNo.9557339(Sept.8,2022).

 

The Secretarysubmitted a settlement motion on April 19, 2023, but I expressed myreservations caused by the inadequate support for the removal of the S&Sdesignation.*See*Email fromChristopher A. Jannace, Attorney Advisor to the Honorable Judge Michael G.Young, toDouglasW. Johnson, CLR, MSHA(Apr. 20, 2023;10:25a.m.ET).Inher amended motion, the Secretary providedmore thorough Respondent contentions challenging the likelihood of the hazardoccurring:

 

The Respondentwould have argued at hearing that no methane was found on the section duringnumerous pre and on-shift examinations prior to the issuance ofthis citation and that this is normal forthis mine.Though this mine doesliberate substantial amounts of methane and is a “spot” inspection mine, mostmethane entersthemine’sventilatingareafromworkedoutareaswheremethaneentersthe mine throughcracks intheminefloor froma coalseam belowthatdevelopafter a panel or area has been mined.

 

The mine had no prior history of methane inundations from active workingsof the mine nor any history of methane ignitions.The Respondent would have argued that a hazardous accumulationof methane in the face area where this bolting machine was operating was highlyunlikely and virtually impossible with even a modest quantity of ventilatingair.The quantity of ventilating airin this face area where the roof bolter was operating was in compliance withthe mine’s approved ventilation plan which experience has showntobemorethancapableof dilutinghazardousgasesincludingmethaneand dust, rendering them harmless andcarrying them away.

 

The inspector, a roof control specialist, observed the roof bolting crewperform work in this area for approximately twenty-five (25) minutes before issuingthis citation.Had the inspectorreasonably believed that the cited condition presented a hazard, such that thecondition warranted an S&S issuance, then helikelywouldnothavepermittedtheminers tobeunnecessarily exposed to the alleged S&S hazard for an additional five (5)minutes.Additionally, the area wasnearly bolted and only a few minutes work remained to complete the boltingcycle.Thus, the miners were near theface area at the time of issuance and no methane was detected at any time.

 

Both of these roof bolter operators carried properly calibrated multi-gasdetectors which would have provided an alarm of elevated methane should it beencountered.Upon issuance of thecitation, they backed the roof boltingmachineout of the cut and ran the remote “probe”, containing a methane detector, upinto thefaceareatotaketherequired20minutegascheckaspartoftheabatement

effort.The probe went just as far as the twominers had been standing moments before with their own multi-gas detectors.No methane was found by the remote probe.

 

S.Mot.to ApproveSettlement,at3–5(May 11,2023).

 

Partiesmust “providefactsin supportofthemodification for*each violation*,”29C.F.R.§ 2700.31(b) (2022) (emphasisadded), so that Commission judges may “set forth reasons for approval,” *id.*§2700.31(g), when reviewing settlements under the *AmCoal*factors, 30U.S.C. § 820(k) (2023).The providedfacts should therefore be substantive and relevant and, taken as true, shouldenablea judge toplausibly infer thatthe violation didnot occur or does not meettherequirementsofthedesignationthepartiesproposetomodify.For S&S,thismeansthatthefacts should challenge one of the *Mathies*elements.

 

I find thecontentions meet the bare minimum standards for relevance and plausibility tosupport removal of the S&S designation.TheSecretary provides multiple Respondent contentions that are precedentiallyirrelevant to an S&S analysis.Thehazard contemplated by thecitedprovisionistheignitionofmethane.Thefollowingcontentionsdonothing tochallengethe likelihood of the hazard occurring, or any of the other *Mathies*elements.

 

An S&Sanalysis assumes the continuation of normal mining operations without abatementof the violative condition.*SeeConsol Pa. Coal Co.*, 43 FMSHRC 145, 148 (Apr. 2021) (citing *U.S. SteelMining Co.*, 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significantand substantial’ must be based on the facts existing at the time of issuanceand assumingcontinuednormalminingoperations,absentanyassumptionofabatementofinferencethat the violative condition will cease.”).

 

Respondent’scontentions that no methane was found during pre- and on-shiftinspections, that there is no history ofmethane inundations, and that no methane was found inthe test made to abate the violation, are therefore irrelevant.Respondent was conducting roof boltingoperations, and methane accumulations have been found tooccur without warning—thus requiring compliance with provisionsthat prevent possible ignition sources, like permissibility requirements.*See Knox Creek Coal Corp.*, 36FMSHRC 1128, 1131 (May 2014) (“[G]iven the gassy nature of the mine, suddenmethane buildups in the explosive range could reasonably be expected tooccur.”).As I assume a methane buildup at a gassy mine is reasonably likely to occursuddenlyduringcontinuedoperation,anyreferencetoalackofmethane,pastorpresent,isirrelevant to my evaluation.

 

CommissionjudgesmaynotconsiderredundantsafetymeasuresinanS&S evaluation.

*See Cumberland Coal Res., LPv. FMSHRC*, 717 F.3d 1020, 1028–29 (D.C. Cir. 2013) (“‘[C]onsideration ofredundant safety measures,’—that is, ‘preventative measures that would haverenderedbothinjuriesfromanemergencyandtheoccurrenceof anemergencyinthefirst place less likely’—‘is inconsistentwith the language of [Section] 814(d)(1).’”).Multi-gas detectors, both personnel- and equipment-based, are redundantsafety measures, on top of the requirement to conduct regular tests, aimed atpreventing the hazard.References tosuch are therefore irrelevant to challenge S&S.

The Secretary,nonetheless, appropriately challenged the likelihood of the hazard by citingthe available ventilation and time of violation.While lacking specificity and being minimallypersuasive,Respondentcontendedthatthequantityofventilatingairmayhavebeendemonstrated as sufficient to prevent ignition.I also recognize, to a miniscule extent, the minimal timeRespondent was allegedly in violation.1

 

WhileI amskepticalof thedecisiontodeletetheS&S designation, theexplanationinthe motion is notfacially implausible.It is possiblethat at hearing, if supported by substantial evidence, the violation might notbe proved to be S&S. Applying the *American Coal*factors to thesettlement as a whole, I have also considered that all of the other violationshave been accepted as issued, and that the reduction in the overall penalty isminimal.

 

I separatelyemphasize that the Secretary again inappropriately asserted her authority toremoveS&Sdesignations, citing*MechanicsvilleConcrete, Inc.*,18FMSHRC877,879–80(June 1996),and *American Aggregates of Michigan, Inc.*, 42 FMSHRC 570, 576–79 (Aug.2020).S. Mot. at 5.I have repeatedly explained, as have otherCommission judges, that these cases are irrelevanttomyevaluationof theproposedremovalof S&Sdesignationsinsettlement.*See*, *e.g.*, Order AcceptingAppearance & DenyingMot.toApproveSettlement,Docket No.WEVA 2023- 0071, at 7 (May 3, 2023).

 

I madecleartotheSecretarythatthisconstitutesmisstatingthelaw, andI cautionedboth agency attorneys and CLRs not to continue incorrectlyciting this authority in these circumstances on threat of beingbarredfrom practice before me.*Id.*AsI didnot threaten such asanction on review of the first motion, I do not impose it on the CLR here.But he is now on notice.

 

Havingconsidered the representations and documentation submitted, I find that themodifications are minimally reasonable, and concede, with noted concern, thatthe proposed settlement isappropriateunderthecriteriaset forthin Section110(i)oftheAct.Themotion to approve settlement is **GRANTED**.

 

It is **ORDERED**that for Citation No. 9557339, the gravity be **MODIFIED**from“ReasonablyLikely”to“Unlikely,”andthe“S&S”designationberemoved,andthenegligence be **MODIFIED**from “Moderate” to “Low.”

 

1 I donotaccept thecontention thattheinspector’sfailuretociteforfiveminutesdemonstrates his belief that the hazard was not likely, nor is that anappropriate consideration.I simplyacknowledge that the combination of the purported quantity of ventilating airand the short duration of exposure might demonstrate at hearing that the hazardwas unlikely to occur.

Itisalso**ORDERED**that theRespondent paytheSecretary ofLaborthesum of**$2,695.00**within30daysofthedateofthis decision.2

 

 

 

 

Michael G. Young 

AdministrativeLawJudge

 

 

 

Distribution (byemail):

 

DouglasW.Johnson,CLR,U.S.DepartmentofLabor,MSHA,1293AirportRoad,Beaver,WV 25813, johnson.douglas@dol.gov

 

JonathanR.Ellis,STEPTOE&JOHNSONPLLC,ChaseTower,SeventeenthFloor,P.O.Box1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

 

 

2 Please pay penalties electronically atPay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and HealthAdministration,P.O. Box 790390,St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.

#  

# APPENDIXF

** **

** **

FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

 

 

SecretaryofLabor,MineSafety                                                          DocketNo.WEVA2023-0092

andHealthAdministration(MSHA), 

Petitioner

v.

 

PocahontasCoalCompanyLLC,

   Respondent

 

 

 

 

### Secretary’sPetitionforDiscretionaryReview

** **

The Secretary seeksreview ofpart of thejudge’s May12, 2023order inthis case. (A copy is attached as ExhibitA.)The order sanctionsthe Secretary for articulatingthe Secretary’s legalpositionabout her authority to removeS&Sdesignations—an issuethat isonappeal—byputtingtheSecretary’s CLR“onnotice”andthreateningtobarthe CLRfrom practicing if theCLRarticulates thatargument again. The Secretary seeks reviewofthepartoftheorderputtingtheCLRonnoticeandthreateningfuture sanctions,becauseanecessary legalconclusioniserroneous,andbecausethatpartofthe order iscontraryto law and involves substantial questions of law, policy, anddiscretion.

See30U.S.C.823(d)(2)(A)(ii)(II),(III),(IV).

 

The issuepresented for review is: did the judge abuse his discretion by sanctioning the SecretaryforarticulatingtheSecretary’slegalposition,andbythreateningtosanctionthe Secretary forarticulatingthatlegal position in the future?

### Background

** **

**1.      ****The********Secretary’s********position********on********removing********S&S****designations**

Infall2021,theJudgeYoungdeniedamotiontoapprovesettlementinacaseinvolving threeviolations.Ord.DenyingMot.toApproveSettlement, *Knight****Hawk****Coal,****LLC*,No. LAKE2021-0160(FMSHRCSept.30,2021)(ALJYoung).Theoperatoracceptedone violation as issuedand decided to pay theproposed penalty; Secretarydecided to reduce the gravity from reasonablylikelytounlikely,and to remove the S&S designation, on two violations.TheSecretaryfiledamotiontoapprovesettlement,andtheninresponseto thejudge’srequestformorefacts,twoamendedmotions.Themotionsprovidedfactsin support of the gravity reduction andarticulated the Secretary’s longstanding position thatshehas unreviewablediscretiontoremoveanS&Sdesignation.Themotioncited

*Mechanicsville****Concrete,****Inc.*,18 FMSHRC877(June 1996), and*American****Agregates****of**Michigan,****Inc.*, 42 FMSHRC570(Aug. 2020) to support thisposition. The judge denied themotionbecause,inhisview,theSecretaryhadnotprovidedenoughfactstojustifyremovingtheS&Sdesignationononeviolation.*Knight****Hawk***Ord.3-5.TheSecretary thenfiledamotiontocertifyforinterlocutoryreviewthequestionofwhetherthe Secretary has unreviewable discretion to remove anS&Sdesignation; the judge certified thequestion,andonApril7,2022,theCommissiondirectedreview.

Later in 2022, the judge deniedtwo other settlements and certified the same questionfor interlocutoryreview. Ord. Denying Mot. To Approve Settlement, Certifying Case for InterlocutoryReview,andStayingProceedings, *Bluestone****Oil****Corp.*,Nos.WEVA2022- 0176,WEVA2022-0350(FMSHRCOct.31,2022)(ALJYoung);Ord.DenyingMot.

ToApproveSettlement,CertifyingCaseforInterlocutory Review,andStaying Proceedings, *GreenbrierMinerals,LLC*, Nos. WEVA 2022-0403 (FMSHRCNov. 22, 2022)(ALJYoung).TheCommissiondirectedreviewinbothcases.AndinMarch2023, thejudgestayedanothercasependingthesameissue,butdidnotcertifyforinterlocutory review;hereasonedthat“[c]ertificationwillnotmateriallyadvancetheproceeding’sfinal

disposition—thequestionhas alreadybeen pending beforethe Commission for 11 months,and it seems unlikely that a grant of interlocutory review here will accelerateadecisiononthequestionandmaydelayone.”Ord.DenyingCertificationfor InterlocutoryRev.andStayingProceedings, *Peabody****Gateway****N.****Mining,****LLC*,No.

LAKE2023-0043(FMSHRCMar.8,2023)(ALJYoung).

 

Whiletheappealhasbeenpending,thejudgehasrejectedtheSecretary’spositionbut approvedsettlementsinmanycases.See,*e.g.*,*AppalachianRes.W.Va.*,Nos.WEVA 2022-0464,WEVA2022-0590(FMSHRCJan.10,2023)(ALJYoung);*Casella****Constr.*

*Inc.*,No.YORK 2022-0068(FMSHRCDec.5, 2022)(ALJYoung);*RawCoalMiningCo.,Inc.*,No.WEVA2022-0297(FMSHRCOct.7, 2022)(ALJYoung).Sometimes the judge has approvedsettlements without remarking on the Secretary’s position at all. See, *e.g.*,*Phillips&Jordan,Inc.*,Nos.SE2022-0092etal.(FMSHRCJan.3,2023)(ALJYoung);*Prospect****Mining****&****Dev.****Co.,****LLC*,Nos.SE2022-0034,SE 2022-0035 (FMSHRCOct. 20, 2022) (ALJ Young).

Onappeal,the Secretary has argued thatshe has unreviewablediscretion to remove S&S designations, supporting thatargumentin part with the Commission’s decisions in *Mechanicsville*and*American****Agregates*. SeeBrief for the Sec’y of Lab. at 3-5,*Bluestone****Oil*

*Corp.*,Nos.WEVA2022-0176,WEVA2022-0350(Jan.6,2023);BrieffortheSec’yof Lab.at3-5,*Greenbrier****Minerals,****LLC*,No.WEVA2022-0403(Jan.5,2023);Briefforthe Sec’yofLab.at4-5,11-12,*Knight****Hawk****Coal,****LLC*,No.LAKE2021-0160(May9,2022). In*Mechanicsville*,theCommissionsaidthatthereis“nomaterialdifferencebetweenthe Secretary’s[unreviewable] discretionontheone handtovacate acitation.. .andhis discretionontheotherhand...nottodesignateacitationasS&S.”18FMSHRCat 879.Andin*American****Agregates*,theCommissionheldthatthejudgeabusedhis discretionbyrejectingasettlementinwhichtheSecretaryremovedanS&Sdesignation becausethejudgedidnotbelievethatremovalwasjustified;theCommissionsaidthat “[w]hetheraviolationisS&Sisamatterinthefirstinstanceofprosecutorial

discretion,”sothat“ifMSHAdoesnotchargeanS&Sviolation,theCommissioncannot makeanS&Sfinding.CommissionJudgesdonothavethediscretiontomakesuch elevatedfindingunlessitisassertedinthefirstinstancebyMSHA.”42FMSHRCat 576(citation to *Mechanicsville***omitted). Since theappealhasbeen pending, when the SecretaryhasfiledmotionstoapprovesettlementincasesinwhichtheSecretaryhasdecidedtoremoveanS&Sdesignation,theSecretaryhascontinuedherlongstandingpracticeofarticulatingthatshehasdiscretiontodoso,citing*Mechanicsville***and*American**Agregates*.

TheCommissionhasnotdecidedtheS&S-removalcases. Judges havetaken different approachestosettlementsinwhichtheSecretaryhasremovedanS&Sdesignation.

SometimesjudgesdonotcommentontheSecretary’sposition.See, *e.g.*,*Knight****Hawk Coal,****LLC*,No.LAKE2023-0095(FMSHRCApr.19,2023)(ALJPaez);*W.A.****Murphy*

*Inc.*,No.WEST2023-0005(FMSHRCApr.19,2023)(ALJManning);*Quikrete****Cos.,**Inc.*,No.CENT2023-0003(FMSHRCApr.18,2023)(ALJBulluck); *TwinState Mining,Inc.*,No.WEVA2022-0391(FMSHRCJan.24,2023)(ALJSullivan);

*ContinentalCementCo.*, No.CENT2022-0236(FMSHRCJan.10,2023)(ALJ Simonton);*Consol****Penn.****Coal****Co.****LLC*,No.PENN2022-0061(FMSHRCJan.10,2023) (ALJLewis).Sometimesjudgesrejectthepositionbutconsiderthemeritsofthe settlement.See, *e.g.*,*HibbingTaconiteCo.*,No.LAKE 2022-0176(FMSHRCJan.26,2023) (ALJMcCarthy); *AppalachianRes.W.Va.,LLC*, No.WEVA 2022-0554 (FMSHRCJan.24,2023)(ALJMoran);*GrimesRock,Inc.*,No.WEST2022-0336 (FMSHRC Dec. 30,2022) (ALJMiller).

 

### 2.      RecentALJordersonS&Sremovals

OnApril25,2023,JudgeMoranissuedan“OrderApprovingSettlementwithSignificant Reservations.” *ConsolPennsylvaniaCoalCo.,LLC*, No. PENN 2022-0129 (FMSHRC Apr.25,2023)(ALJMoran)(Ex.B).Init,JudgeMoransaidthatciting*Mechanicsville*1fortheS&S-removalpositionwasaviolationofanattorney’s“obligationnottomisstate caselaw”andtoldtheSecretaryto“ceaseinvokingthatdecisionforpropositionsnot supportedby it.”*Id.***at 6.The judgealsoasserted that Federal Ruleof CivilProcedure 11, whichrequiresattorneystoensurethatthe“legalcontentions[inapleading]are warranted byexisting law or by anonfrivolous argument for extending,modifying, or reversingexistinglaworforestablishingnewlaw,”isimplicatedbytheSecretary’sposition. Fed. R. Civ. P. 11(b)(2); Ex. B at 6.

 

1That motionto approvesettlementdidnotcite*American****Agregates*,whichmayexplain whythejudgedidnotdiscussit.

Aboutaweeklater,withoutreachingthemeritsofthesettlement,JudgeYoungissued an order denying asettlement that removed two S&S designations. Ord. Accepting Appearance & Ord. Den. Mot. to ApproveSettlement, *ExtraEnery, Inc.*, No. WEVA 2023-0071(FMSHRCMay4,2023)(ALJYoung)(Ex.C).Init,thejudgedisapproved oftheSecretary’spositiononS&Sremovals,sayingthatitisinappropriatetocite *Mechanicsville***and*American****Agregates***because“[t]hesecasesareknownbynowtobe invalidasauthorityfortheprinciplestheyclaimtorepresent.”*Id.***at7.Thejudgequoted JudgeMoran’sorder,notedthatRule11sanctionsmaybeimposedfor“misstating”the law,andthreatenedtoimposesanctions:

Thereareminimumstandardsofpracticeineverytribunal,includingthis one.Erroneousmischaracterizationsofprecedentfailtomeetthosestandardsandwillnotbetolerated.ACLRwhocitesthesecases,falsely,inasubsequentmotionastheyhavebeencitedheremaybebarredfrom practicebeforeme.Theremaybeotherconsequences.

*Ibid.***(footnoteomitted).Inafootnote,thejudgealsosaidthat“Althoughthesecases wereincluded by a pleadingdrafted by a CLR,Iwould expect an attorneytoknowbetter, andatransgressionagainstthelawofthissortbyanattorney wouldbeevenmore egregious.”*Ibid.***n.5.ThejudgealsoservedtheDepartmentofLabor’sCLRCoordinator, anattorneyintheDivisionofMineSafetyandHealthintheOfficeoftheSolicitor,even thoughthe attorneyhad not entered anappearance. The judge did not acknowledge that theS&S-removalissueisonappeal.

Aboutaweekafter*Extra****Enery*,thejudgeissuedanorderdenyingsettlementand sanctioning theSecretarybystriking from the record the Secretary’sposition on S&S removals.2OrderDenyingMot.toApprove SettlementandStrikingMaterialfromMot., *ConsolMiningCo.LLC*,WEVA2023-0141(FMSHRCMay11,2023)(ALJYoung)(Ex.

D).IgnoringanyreviewunderSection110(k),thejudgediscussedhisorderin*Extra**Enery*,thensaidthatthissettlementmotioncontainedthesame“offendingcitations,” whichare“obviouslyinappropriate”and“impertinent.”*Id.*at2.ThejudgesanctionedtheSecretary’srepresentativebystrikingfromthemotiontoapprovesettlementthe Secretary’spositiononS&S removals and threatened to impose more severe sanctions in futurecases:“thosewhopersistinthediscreditedandmisleadinguseofprecedentshould reasonably anticipate that their conduct will be deemed knowingor intentional andwillbeaddressedwithprogressiveseverityuntilthepracticeisdiscontinued.”*Ibid.*

Finally,thejudgedeniedthesettlement“withoutreachingthemerits.”*Ibid.*

* *

* *

### 3.      Thiscase

Thedayafterhisorderin*Consol*,thejudgeissuedtheorderinthiscase.SeeEx.A.The case involves 16violations. The operator accepted15 asissuedand decided to pay the proposed penalties; the Secretary decided to modify oneviolation by reducing the gravityandnegligenceandremovingtheS&Sdesignation.(ThatwasCitationNo. 9557339, whichallegedaviolationof30C.F.R.75.362(d)(1)(iii)forroofboltersthatfailedtotake methanechecksevery20minutes.)

 

2TheSecretaryfiledapetitionfordiscretionaryreviewofthisorderconcurrentlywith thispetitionfordiscretionaryreview.

ConsistentwiththeSecretary’spositiononappeal,themotiontoapprovesettlement providedfactssupportingthe reduction ingravity and negligence and articulated the Secretary’s position thatshe may remove S&S designations withoutCommission approval,citing*American****Agregates***and*Mechanicsville*.Althoughthejudgeapprovedthe settlement, the judge “separatelyemphasize[d]that the Secretary again inappropriately assertedherauthoritytoremoveS&Sdesignations,”citedhisorderin*Extra****Enery*,and “cautionedbothagencyattorneysandCLRsnottocontinueincorrectlycitingthis authorityin these circumstanceson threat ofbeing barred frompractice beforeme.”Ex. Aat5.Thejudgesaidthat,“AsIdidnotthreatensuchasanctiononreviewofthefirst motion,IdonotimposeitontheCLRhere.Butheisnowonnotice.”*Ibid.*

ThejudgealsoservedtheorderontheDepartmentofLabor’sCLRCoordinator,an attorneyintheDivisionofMineSafetyandHealthintheOfficeoftheSolicitor,even thoughtheattorneyhadnotenteredanappearance.Thejudgedidnotacknowledgethat theS&S-removalissueisonappeal.

 

### Argument

** **

**1.      ****There is no legalbasis for sanctioning, or threatening future sanctions against,********theSecretary.**

Thejudge’sorderislegally wrong,see30U.S.C.823(d)(2)(A)(ii)(II)-(III),because articulatingtheSecretary’spositiononS&Sremovalsisnotsanctionableconduct.

Commissionpractitioners“shallconformtothestandardsofethicalconductrequired ofpractitionersinthecourtsoftheUnitedStates.”29C.F.R.2700.80(a).Those standardsincludetheobligationtoensurethatthe“legalcontentions[inapleading]are

warranted by existing law or by anonfrivolous argument for extending, modifying, orreversingexistinglaworforestablishingnewlaw................. ” Fed.R. Civ. P. 11(b)(2).

It isnotunethical or unprofessional to cite*Mechanicsville*and*American****Agregates***for thepropositionthattheSecretary hasdiscretiontoremoveanS&S designation.Asthe SecretaryhasarguedinthecasespendingbeforetheCommission,that*is*whatthosecases mean.Butevenif those casesdid notdirectly supporttheSecretary’sargument,they certainlysupportanonfrivolousargumentforextendingormodifyingexistinglaw.The pendingappealshowsasmuch.See*supra***pp.2-5.AndtheSecretarydid nothaveto explain whetherher S&S-removal position is warranted by*Mechanicsville***and *American**Agregates*or by extending them: “The text of the Rule......................... doesnotrequirethatcounsel

differentiate between a positionwhich is supported by existing law and one that would extendit.TheRuleonitsfacerequiresthatthe[position]beeitheroneortheother.” *Golden****Eagle****Distrib.****Corp.*v.*Burroughs****Corp.*,801F.2d 1531,1539(9thCir.1986).

Commissionreviewisessentialbecausethisisnotanordinarylegalerror.Thejudge

 

notonlyhasimposedsanctions;hehaspromisedthatmoresanctionswillcome.That threatappliestoalltheSecretary’srepresentatives,sothejudgehaseffectivelybarredthe Secretary from making anon-frivolouslegal argument; that would warrantreview on its own.Butthe’sorderisespeciallyperniciousbecauseitappliestotheSecretary’spositionabouttheallocationofauthoritybetweentheSecretaryandtheCommission.Itiscontrary totheMineAct’ssplit-enforcementschemetopreventtheSecretaryfromarticulatingherviewaboutthoseissues.See*Sec’y****of****Lab.***v.*Knight****Hawk****Coal,****LLC*,991F.3d1297 (D.C.Cir.2021);*MachMining,LLC*v.*Sec’yofLab.*,728F.3d643(7thCir.2013);*Speed*

*Mining,****Inc.***v.*FMSHRC*,528F.3d310(4thCir.2008);*Sec’y****of****Lab.***v.*Twentymile****Coal**Co.*,456F.3d151(D.C.Cir.2006);*Sec’y****ex****rel.****Wamsley*v.*Mut.****Mining,****Inc.*,80F.3d110 (4thCir.1996); *Sec’y****ex****rel.****Bushnell***v.*Cannelton****Indus.,****Inc.*,867F.2d1432(D.C.Cir.

1989).AndbybarringtheSecretaryfromraisingthoseissuesattheALJlevel,thejudge haseffectivelybarredtheSecretaryfrompreservingthemforappeal.See30

U.S.C.816(a)(1),(b);823(d)(2)(iii).

 

 

### 2.      Thisorderraisessignificantquestionsaboutlaw,policy,anddiscretion.

Thisorderraisessignificantquestionsoflawandpolicy,30U.S.C.823(d)(2)(A)(ii)(IV),becauseofitsscope.Althoughthisorderimposessanctionsinjustonecase,thejudge said—in thisorder and inothers—that he willimposesanctions on anyrepresentative whoarticulatestheSecretary’sposition.Ex.Aat5;Ex.Cat7&n.5;Ex.Dat2.Simplyput,the judgehas threatened tosanction everyone who is authorized to represent the Secretary.Abaselessorderwithsuchsweepingeffectsrequiresreview.Cf.*United****States*

v.*Williams*,No.22-10174,2023WL3516095,at*5(9thCir.May18,2023)(holdingthat

 

a district judge’sorder disqualifying an entireUnitedStatesAttorney’s office is immediately appealableas acollateralorder) (collecting cases).

Theorderalsoraisessignificantquestionsaboutthejudge’sexerciseofdiscretion.30

 

U.S.C.823(d)(2)(A)(ii)(IV).Judgescertainlycanrejectlegalargumentstheydisagree with, but disagreeing with an argument doesnot mean that the argument is sanctionable.Andthereisnobasisforthejudge’sconclusionthattheSecretary’sS&S-removal positionisamisstatementofthelaw.*See***suprapp.2-5.

ThejudgeabusedhisdiscretionbysanctioningtheSecretaryforarticulatinga positionwhentheissueisunresolvedandonappeal,andwhenthejudge*himself*previouslyfoundthatpositionnottowarrantsanctions.See*supra***p.3.Thejudgeknows thattheS&S-removalissueisonappeal,becauseineachofthethreecasespresentingthat issue,thisjudgecertifiedthequestionforinterlocutoryreview.See*supra***pp.2-3.Itisan abuseofdiscretion for thejudge to imposesanctionson the grounds that the position is a misstatementoflaw,sinceheknowsthatissueisonappeal.See*Peabody****Gateway****North*Ord.at2(acknowledgingthattheCommissionhasnotdecidedtheS&Sissue);*Asai***v.

*Castillo*,593 F.2d1222, 1225(D.C.Cir.1978)(decliningtoimposesanctionswhenthe appellate court hadnot addressed the relevant issue). It isarbitraryand anabuse of discretionfor the judge abruptly to begin imposing sanctions for a position that thejudgehadnotsanctionedbefore. See,*e.g.*, *Sec’y****of****Lab.***v.*Westfall****Agregate****&****Materials,****Inc.*, No.22-1088,2023WL3830210,at*5(D.C.Cir.June6,2023)(theCommissionmust engageinreasoneddecisionmaking,“especially”whenit“hastakenasharpturnfrompriorholdings”)(quoting*Leeco,****Inc.***v.*Hays*,965F.2d1081,1085(D.C.Cir.1992)).

 

### Conclusion

TheCommissionshoulddirectreview.

 

Respectfullysubmitted,

 

SEEMANANDA

SolicitorofLabor

 

APRILE.NELSON

AssociateSolicitor

 

s/EMILYTOLERSCOTT

CounselforAppellateLitigation

U.S.DepartmentofLabor Office of the Solicitor

DivisionofMineSafety&Health 

20112thStreetSouth,Suite401

Arlington,VA22202

(202)693-9333

(202)693-9392(fax)

scott.emily.t@dol.gov

 

AttorneysfortheSecretary ofLabor

### CertificateofService

** **

IcertifythatonJune9,2023,acopyofthispetitionfordiscretionaryreviewwasserved by email on:

 

Jonathan R.Ellis

STEPTOE&JOHNSONPLLC

ChaseTower,SeventeenthFloor

P.O.Box1588

Charleston, WV 25326

jonathan.ellis@steptoe-johnson.com

 

s/EmilyTolerScott

 

 

 

ExhibitA

## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

** **

OFFICE OF ADMINISTRATIVELAW JUDGES 1331PENNSYLVANIAAVENUE,NW,SUITE520N WASHINGTON, DC20004-1710

TELEPHONE:202434-9987/FAX:202434-9949

 

May12,2023

 
| SECRETARY OF LABOR, MINESAFETYANDHEALTH ADMINISTRATION (MSHA),

Petitioner

 

v.

 

POCAHONTASCOALCOMPANYLLC,

Respondent | CIVILPENALTY PROCEEDING

 

DocketNo.WEVA2023-0092

A.C.No.46-08878-565698

 

 

Mine:AffinityMine |
|---------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------|

 

 

**ORDERACCEPTINGAPPEARANCE**

**DECISIONAPPROVINGSETTLEMENTWITHSIGNIFICANTRESERVATIONS****ORDER TO MODIFY**

**ORDERTOPAY**

** **

Before:Judge Young

 

Thiscaseisbeforemeuponpetitionfor assessmentof civilpenaltyunder Section105(d) of theFederal Mine Safety and Health Act of 1977.The Secretary has filed a Motion to Approve Settlement and has set forththe factual basis for the proposed modifications.The Respondenthasagreedtotheproposedchanges.Theoriginallyassessedamountfor thecitation at issue was $3,171.00, and theproposed settlement amount is $2,695.00.

 

Itis**ORDERED**thattheConferenceandLitigationRepresentative(CLR)beacceptedto represent the Secretaryinaccordance withthe notice oflimited appearance he has filedwiththe penalty petition.*CyprusEmerald Resources Corporation*, 16 FMSHRC 2359 (Nov. 1994).

 

Theproposedsettlementincludes:

 
| **Citation/Order****No.** | **Originally  Proposed Assessment** | **Settlement  Amount** |  

**Modifications** |
|---------------------------|--------------------------------------|-------------------------|---------------------------|
| 9550934                   | $169.00                              | $169.00                 | None.                     |
| 9550935                   | $169.00                              | $169.00                 | None.                     |
| 9550936                   | $169.00                              | $169.00                 | None.                     |

| **Citation/Order****No.** | **Originally Proposed Assessment** | **Settlement  Amount** |  

**Modifications**                                                                                                                              |
|---------------------------|------------------------------------|-------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------|
| 9550403                   | $133.00                            | $133.00                 | None.                                                                                                                                                  |
| 9550937                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550938                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550939                   | $183.00                            | $183.00                 | None.                                                                                                                                                  |
| 9550940                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550941                   | $198.00                            | $198.00                 | None.                                                                                                                                                  |
| 9550942                   | $188.00                            | $188.00                 | None.                                                                                                                                                  |
| 9550943                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9550404                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
|  

9557339           |  

$610.00                    |  

$134.00         | Modifygravityfrom“ReasonablyLikely” to “Unlikely,” and from “S&S” to “Non- S&S,”andnegligencefrom“Moderate” to

“Low.”                         |
| 9551135                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9551136                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| 9551137                   | $169.00                            | $169.00                 | None.                                                                                                                                                  |
| **Total**                 | **$3,171.00**                      | **$2,695.00**           |                                                                                                                                                   |

 

Thepartieshaveset forththejustificationforthemodificationsin themotionfiled bythe Secretary.As required bythe Mine Act, I have reviewed the motion and penalty criteria and evaluated theproposed settlement pursuant to the requirements set forth in Sections 110(i)and

110(k).The parties agree to the size of this operator, good faith abatement,and the ability to pay.Thehistoryofviolationhasbeenconsidered.Thenegligenceandgravityof theviolation are addressed in the motion, in the citations, and in the filein general.

 

Citation9557339concernsafailuretoconductarequiredmethanetest.Thecited provision states:

 

A qualifiedperson shall make tests for methane—(iii) At 20-minute intervals, or more oftenif required in the approved ventilation plan at specific locations,during the operation of equipment in theworking place.

 

30C.F.R.§75.362(d)(1)(iii)(2023).Thecitationreads,in part:

 

The roof boltoperators installing permanent roof support on the No. 3 active section (005-0/ 002-0 MMU’s) in the 5X6 cross-cut exceeded the 20 minute required methanetest.The roof bolt operators werebeing observed installing bolts, when 25 minutes elapsed and no attempted [sic]was made to take the required methane test.Askedthe operators what time was the last methane test was[sic]taken,bothoperatorscouldnotsaywhenthemethanetestwasmade.

The roofbolting machine was shut off and an examination was made with an extendableprobe and large display CH4 detector.Thismine is on a 10 day methane spot.

 

CitationNo.9557339(Sept.8,2022).

 

The Secretarysubmitted a settlement motion on April 19, 2023, but I expressed myreservations caused by the inadequate support for the removal of the S&Sdesignation.*See*Email fromChristopher A. Jannace, Attorney Advisor to the Honorable Judge Michael G.Young, toDouglasW. Johnson, CLR, MSHA(Apr. 20, 2023;10:25a.m.ET).Inher amended motion, the Secretary providedmore thorough Respondent contentions challenging the likelihood of the hazardoccurring:

 

TheRespondent would have argued at hearing that no methane was found on thesection during numerous pre and on-shift examinations prior to the issuance ofthis citation and that this is normal forthis mine.Though this mine doesliberate substantial amounts of methane and is a “spot” inspection mine, mostmethane entersthemine’sventilatingareafromworkedoutareaswheremethaneentersthe mine throughcracks intheminefloor froma coalseam belowthatdevelopafter a panel or area has been mined.

 

The mine had no prior history of methane inundations from active workingsof the mine nor any history of methane ignitions.The Respondent would have argued that a hazardous accumulationof methane in the face area where this bolting machine was operating was highlyunlikely and virtually impossible with even a modest quantity of ventilatingair.The quantity of ventilating airin this face area where the roof bolter was operating was in compliance withthe mine’s approved ventilation plan which experience has showntobemorethancapableof dilutinghazardousgasesincludingmethaneand dust, rendering them harmless andcarrying them away.

 

The inspector, a roof control specialist, observed the roof bolting crewperform work in this area for approximately twenty-five (25) minutes beforeissuing this citation.Had theinspector reasonably believed that the cited condition presented a hazard, suchthat the condition warranted an S&S issuance, then helikelywouldnothave permittedtheminers tobe unnecessarily exposed to the allegedS&S hazard for an additional five (5) minutes.Additionally, the area was nearly bolted and only a few minuteswork remained to complete the bolting cycle.Thus, the miners were near the face area at the time of issuance and nomethane was detected at any time.

 

Both of these roof bolter operators carried properly calibrated multi-gasdetectors which would have provided an alarm of elevated methane should it beencountered.Upon issuance of thecitation, they backed the roof boltingmachineout of the cut and ran the remote “probe”, containing a methane detector, upinto thefaceareatotaketherequired20minutegascheckaspartoftheabatement

effort.The probe went just as far as the twominers had been standing moments before with their own multi-gas detectors.No methane was found by the remote probe.

 

S.Mot.to ApproveSettlement,at3–5(May 11,2023).

 

Partiesmust “providefactsin supportofthemodification for*each violation*,”29C.F.R.§ 2700.31(b) (2022) (emphasisadded), so that Commission judges may “set forth reasons for approval,” *id.*§2700.31(g), when reviewing settlements under the *AmCoal*factors, 30U.S.C. § 820(k) (2023).The providedfacts should therefore be substantive and relevant and, taken as true, shouldenablea judge toplausibly infer thatthe violation didnot occur or does not meettherequirementsofthedesignationthepartiesproposetomodify.For S&S,thismeansthatthefacts should challenge one of the *Mathies*elements.

 

I find thecontentions meet the bare minimum standards for relevance and plausibility tosupport removal of the S&S designation.TheSecretary provides multiple Respondent contentions that are precedentiallyirrelevant to an S&S analysis.Thehazard contemplated by thecitedprovisionistheignitionofmethane.Thefollowingcontentionsdonothing tochallengethe likelihood of the hazard occurring, or any of the other *Mathies*elements.

 

An S&Sanalysis assumes the continuation of normal mining operations without abatementof the violative condition.*SeeConsol Pa. Coal Co.*, 43 FMSHRC 145, 148 (Apr. 2021) (citing *U.S. SteelMining Co.*, 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significantand substantial’ must be based on the facts existing at the time of issuanceand assumingcontinuednormalminingoperations,absentanyassumptionofabatementofinferencethat the violative condition will cease.”).

 

Respondent’scontentions that no methane was found during pre- and on-shiftinspections, that there is no history ofmethane inundations, and that no methane was found inthe test made to abate the violation, are therefore irrelevant.Respondent was conducting roof boltingoperations, and methane accumulations have been found tooccur without warning—thus requiring compliance with provisionsthat prevent possible ignition sources, like permissibility requirements.*See Knox Creek Coal Corp.*, 36FMSHRC 1128, 1131 (May 2014) (“[G]iven the gassy nature of the mine, suddenmethane buildups in the explosive range could reasonably be expected tooccur.”).As I assume a methane buildup at a gassy mine is reasonably likely to occursuddenlyduringcontinuedoperation,anyreferencetoalackofmethane,pastorpresent,isirrelevant to my evaluation.

 

CommissionjudgesmaynotconsiderredundantsafetymeasuresinanS&S evaluation.

*See Cumberland Coal Res., LPv. FMSHRC*, 717 F.3d 1020, 1028–29 (D.C. Cir. 2013) (“‘[C]onsideration ofredundant safety measures,’—that is, ‘preventative measures that would haverenderedbothinjuriesfromanemergencyandtheoccurrenceof anemergencyinthefirst place less likely’—‘is inconsistentwith the language of [Section] 814(d)(1).’”).Multi-gas detectors, both personnel- and equipment-based, are redundantsafety measures, on top of the requirement to conduct regular tests, aimed atpreventing the hazard.References tosuch are therefore irrelevant to challenge S&S.

The Secretary,nonetheless, appropriately challenged the likelihood of the hazard by citingthe available ventilation and time of violation.While lacking specificity and being minimallypersuasive,Respondentcontendedthatthequantityofventilatingairmayhavebeendemonstrated as sufficient to prevent ignition.I also recognize, to a miniscule extent, the minimal timeRespondent was allegedly in violation.1

 

WhileI amskepticalof thedecisiontodeletetheS&S designation, theexplanationinthe motion is notfacially implausible.It is possiblethat at hearing, if supported by substantial evidence, the violation might notbe proved to be S&S. Applying the *American Coal*factors to thesettlement as a whole, I have also considered that all of the other violationshave been accepted as issued, and that the reduction in the overall penalty isminimal.

 

I separatelyemphasize that the Secretary again inappropriately asserted her authority toremoveS&Sdesignations, citing*MechanicsvilleConcrete, Inc.*,18FMSHRC877,879–80(June 1996),and *American Aggregates of Michigan, Inc.*, 42 FMSHRC 570, 576–79 (Aug.2020).S. Mot. at 5.I have repeatedly explained, as have otherCommission judges, that these cases are irrelevanttomyevaluationof theproposedremovalof S&Sdesignationsinsettlement.*See*, *e.g.*, Order AcceptingAppearance & DenyingMot.toApproveSettlement,Docket No.WEVA 2023- 0071, at 7 (May 3, 2023).

 

I madecleartotheSecretarythatthisconstitutesmisstatingthelaw, andI cautionedboth agency attorneys and CLRs not to continue incorrectlyciting this authority in these circumstances on threat of beingbarredfrom practice before me.*Id.*AsI didnot threaten such asanction on review of the first motion, I do not impose it on the CLR here.But he is now on notice.

 

Havingconsidered the representations and documentation submitted, I find that themodifications are minimally reasonable, and concede, with noted concern, thatthe proposed settlementisappropriateunderthecriteriasetforthinSection110(i)oftheAct.Themotionto approve settlement is **GRANTED**.

 

It is **ORDERED**that for Citation No. 9557339, the gravity be **MODIFIED**from“ReasonablyLikely”to“Unlikely,”andthe“S&S”designationberemoved,andthenegligence be **MODIFIED**from “Moderate” to “Low.”

 

1 I donotaccept thecontention thattheinspector’sfailuretociteforfiveminutesdemonstrates his belief that the hazard was not likely, nor is that anappropriate consideration.I simplyacknowledge that the combination of the purported quantity of ventilating airand the short duration of exposure might demonstrate at hearing that the hazardwas unlikely to occur.

Itisalso**ORDERED**that theRespondent paytheSecretary ofLaborthesum of**$2,695.00**within30daysofthedateofthis decision.2

 

 

 

 

Michael G. Young

   AdministrativeLawJudge

 

 

 

Distribution (byemail):

 

DouglasW.Johnson,CLR,U.S.DepartmentofLabor,MSHA,1293AirportRoad,Beaver,WV 25813, johnson.douglas@dol.gov

 

JonathanR.Ellis,STEPTOE&JOHNSONPLLC,ChaseTower,SeventeenthFloor,P.O.Box1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

 

 

2 Please pay penalties electronically atPay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and HealthAdministration,P.O. Box 790390,St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.

 

 

 

ExhibitB

## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

Office ofAdministrative Law Judges 1331PennsylvaniaAvenue,N.W.,Suite520N

Washington,DC20004

Office:(202)434-9933/ Fax:(202)434-9949

 

April25,2023

 

SECRETARYOFLABOR:                 CIVILPENALTYPROCEEDING

MINESAFETYANDHEALTH:

ADMINISTRATION(MSHA),                        :                 DocketNo.PENN2022-0129

Petitioner,:                 A.C. No. 36-07230-561904

:

:

                                                                 v.:

:

:

CONSOL PENNSYLVANIA COAL                      :             Mine:BaileyMine 

COMPANY, LLC,                                                   :

     Respondent:

 

 

## DECISIONAPPROVINGSETTLEMENTWITHSIGNIFICANTRESERVATIONS

** **

Before:Judge WilliamMoran

 

ThiscaseisbeforetheCourtuponapetitionforassessmentofacivilpenaltyunderSection104(d) of the Federal Mine Safety and Health Act of 1977.The Secretary has filed a Motion toApprove Settlement.The Respondenthas agreed to the proposed settlement.Theoriginally assessed total amount for the citations at issue was **$9,036.00**andthe proposed total settlement amountis**$1,897.00,reflectinga79%(seventy-ninepercent)**overallreduction,asreflectedin the following table:

 
| **Citation/Order**             | **MSHA’s**

**ProposedPenalty**   | **Settlement Amount**            | **Othermodificationsto citation/order**                                   |
|--------------------------------|-----------------------------------|----------------------------------|---------------------------------------------------------------------------|
|  

9205312                |  

$6,898                    |  

$1,393                   | Citation  modified to moderate negligence;**80%reductionin penalty**     |
| 9204928                        | $1,069                            | $252                             | Citationmodifiedtounlikelyandnon- S&S; **76%  reduction in penalty** |
| 9205356                        | $1,069                            | $252                             | Citationmodifiedtounlikelyandnon- S&S; **76%  reduction in penalty** |
| **TOTAL REVISED**

**PENALTY** | **Originaltotal:**

**$9,036.00** | **Revisedtotal:**

**$1,897.00** |  

**79%overallreductioninpenalty**                                  |

###  

### TheCitationsinissue Citation No. 9205312

This citation invoked 30 U.S.C.§876(b), pertaining to “**Communication facilities; locations and emergencyresponse plans**.”The sectionaddresses telephone service or equivalent two- way communication facilities,which are to be approved by the Secretary or his authorized representative.Such communication facilities shall beprovided between the surface and each landingofmainshaftsandslopesandbetweenthesurfaceandeachworkingsectionofanycoalmine that is more than one hundred feet from a portal. The cited subsectionaddresses the plan requirements.

 

Thesection104(a)citationforthisnow-admittedviolationstated:

 

The Mine Operator failed to comply with their ApprovedEmergency Response Plan (Approved 9-11-2020), in that, there were no leakyfeeder line (communication) or tracking tags installed in the 2-K WorkingSection (009-0 MMU) Alternate Escapeway (number 3 entry of 2-K) from theloading point inby 8 crosscut outby to the 5 South Mains Right (K) Track at thenumber 80 crosscut (2420 feet in length). Therefore **there was no redundantcommunication between the Primary or Alternate Escapeways**and **no communicationor tracking at all in the alternate escapeway**or **at the Working Sectionrefuge alternative/SCSR cache from the alternate escapeway**. After issuanceof this citation, the Operator removed the persons from the working faces tooutby the loading point until the condition can be corrected.

 

TheFollowingstatementsarefromtheApprovedMineEmergencyResponsePlan and have not been complied with:

 

1.  Page 1, Communication, 2. CoverageArea, line b.,- The system will also generally provide continuous coveragealong escapeways and a coverage zone approximately200'feetinbyandoutbystrategicareasofthemine.StrategicAreas arefixedworklocationswhereminersarenormallyrequiredtowork,sectionSCSR caches, workingsection power centers and manned belt transfers.

 

2.             Page2.,6.,-Survivability,a.Thepostaccidentcommunicationsystemwillgenerally provide redundant signal pathways to the surface component. b.-Redundancy will be achieved by two or more systems installed in two or moreentries, or one system with two or more pathways to the surface; provided thata failure in one system or pathway does not affect the other system or pathway.c.,- Redundancy means that the system can maintain communication with thesurface when a single pathway is disrupted. Disruptions can include majorevents in an entry or component failure.

 

3.             Page 3, Tracking System, 1.Performance, aiii.,- Locate Miners in escape- wayatintervalsnottoexceed2000feet.iv.,-Locateminerswithin200feetof

strategicareas.StrategicAreasarefixedworklocationswhereminersarenormallyrequired to work, section mass SCSR caches, working section power centers andmanned belt transfers. vii.,- Locate miners at the key junction in theescape-ways. viii.,- Locate miners within 200 feet of refuge alternatives. d.-The electronic trackingsystemwillbeinstalledinactivedailytraveledareasoftheminePrimary andSecondary escapeways.

 

4.             Page5,8.Maintenance,d.Intheeventofsystemorcomponentfailures,the minerswillbenotifiedoftheproblem.Theaffectedminerswillbeginmanualzone tracking and continue to advise the surface communication facilityof their travel until the system is repaired. Repairs will start immediately ifthere is a loss in tracking capabilities. e.- The system will be examinedweekly to verify that it is maintainedinproperoperatingconditionandtheresultsoftheexaminationwillbe entered in a record book.

 

5.             Page 5, 9. Purchase andInstallation,- b. If there is system failure the mine will revert to manualtracking system that was previously used.

 

PetitionforCivilPenaltyat11-13.

 

Thecitationwasterminatedthefollowingday,withtheinspector noting:

 

Through avisual observation after traveling the 2K MMU 009-0 #3 entry (return)(Alternate Escapeway) in its entirety and having communication throughout andverifying through the tracking software on the Mine's surface of thisinspectors locations, this citation is hereby terminated. The system is workingin the previously mentioned entry/area. Secondly, the Mine Operator is carryinga record/ledger (weekly exam) to show the systems functioning properly.

 

*Id.*at13.

 

Theissuinginspector,whodiligentlyrecordedtheaspectsoftheApprovedMineEmergency Response Plan provisions whichwere not complied with, listed the “Gravity” of the injury or illness as‘Unlikely,’ but listed such injury or illness as “Fatal” if it were to occur.Marked as non-significant and substantial,nine miners would be affected.Giventhe multiple subjects of non-compliance, the inspector listed the negligence as“High.”*Id.*

* *

* *

### AnalysisforCitationNo.9205312

** **

Thepenalty,whichwas*regularly*assessedat$6,898.00,isnowproposedtobesettledat

$1,393.00,representing**an80%reduction**.Thisfigureisapparentlyderivedbydesignatingthe negligence from ‘High’ to “Moderate.’Motion at 3.The justification forthis is short, the Motionrelatingthatthe“RespondenthasrepresentedtotheSecretarythatithadassignedminers to install the missing equipmentthat is the subject of the citation, but that the work was not timely completedbecause of supply problems.”Undercuttingthis claim is that the inspector found*five*instancesofnon-compliance,yetallfiveviolativeconditionsweresomehowcorrected

thenextday,thesupplyproblemsapparentlyhavingvanishedrapidly.Thisisthesolebasispresented in the motion for listing the negligence as moderate.

 

In support oftheSecretary’s contention, theSolicitor’s attorney looks to *VindexEnergy Corporation*, 34 FMSHRC 223,224 (Jan. 2012) (ALJ) (“*Vindex*”), asserting that “[i]t is ‘appropriateto defer to the judgment of the parties’ in arriving at a modified penaltybased on the §100.3 tables.” Motion at 3.TheSolicitor’s attorney is apparently unaware that an administrative law judge’sdecision is not precedential.CommissionProcedural Rule 69(d) providesthataJudge'sdecisiondoesnotconstitutebindingprecedent.29C.F.R.§2700.69(d).*Rain for Rent,*40 FMSHRC 976, 980 (July 2018), *Tilden Mining,*36FMSHRC 1965 (Aug.

2014).The Secretary also errs in asserting thatthere is an evidentiary dispute regarding the appropriate level of negligencebut offers nothing to support the notion that the negligence should be deemed“Moderate,” other than the vague remark about the short-lived claim of ‘supplyproblems.’Merelyasserting‘supplyproblems’isapparentlysufficienttocarrytheday.

 

### CitationNo. 9204928

** **

This section104(a) citation, invokes 30 C.F.R. § 75.1403, well known as the ‘safeguardstandard.’Itisalsoastatutoryprovisionwhichrequiresthat“[o]thersafeguardsadequate,inthe judgment of an authorized representativeof the Secretary, to minimize hazards with respect to transportation of men andmaterials shall be provided.”

 

For thisnow-admitted violation, on July 8, 2022 the inspector identified multipleviolationsoftheprovision,notingthat“[t]he2Ksection(MMU009-0)#2entrytrackfrom0xc-

9.5xchasfailedtobeproperlymaintainedasidentifiedbythesafeguardsfortheBaileyMinein theaspect: **39 loose track bolts**, a **loosefish plate and a missing bolt**are allowed to exist on this track. Also, atthe #8 crosscut **the rail is out of alignment**by 1/4 inch at the time ofthe exam.

 

PetitionforCivilPenaltyat15(emphasisadded).

 

Thecitationnotedthatthesafeguardstandardhadbeencited**59timesintwoyears**atthe mine.*Id.*

* *

The citation wasterminated four days later, on July 12, 2022, after the identified violationswere corrected with the inspector stating that the “operator was able totighten the loose bolts with approved means, and properly adjust the rail at #8crosscut, however will needto burn ahole in the rail to install the missing bolt on the right side of the track at#8 crosscut. Becausethemineiscurrentlyoperatingonshutdownandminimalpeopleareworking,additional time is granted to getspecialized manpower to this location to cut the rail to install the bolt.*Id.*at 16.

 

### AnalysisforCitationNo. 9204928

** **

**TheSecretary’s attorney cites an administrative law judge decision as precedent,misconstruestheCommission’sdecisionin*MechanicsvilleConcrete,Inc*.,18FMSHRC877, (June 1996), and does not provide‘facts’ to support the requirements for settlement, per theCommission’s*AmCoal*decisions:38FMSHRC1972,(Aug.2016)(“*AmCoalI*”), *American Coal Co.*, 40 FMSHRC983 (Aug. 2018) (“*AmCoal II*”)**

** **

If the basisfor the 80% penalty reduction regarding the previously discussed Citation, No.9205312,isarguablyjustified,thesamecannotbesaidforCitationNo.9204928.Thisisso because the offering by the Secretarydoes not even meet the Commission’s requirements for settlement motions.The justification, *in its entirety*,provides only that:

 

[t]heSecretary has elected to withdraw the S&S designation for this violationand resolveitas“unlikely.”Theproposedpenaltyreductioninthissettlementisbasedon the point values in 30 C.F.R. §100.3 based on the Secretary’s modificationto the citation.The Secretary’s useof the Part 100 regular assessment tables in settlement is a prima facieindication that the penalty reduction is fair, reasonable, and adequate underthe facts, and protects the public interest.

 

Motionat3-4.

 

TheSecretary’sattorneycitesonceagaintotheALJdecisionin*Vindex*,assertingthat “[i]t is ‘appropriate to defer to the judgment of theparties’ in arriving at a modified penalty based on the §100.3 tables.”*Id*.The inapplicability of ALJ decisions as precedent has beendiscussed above.

 

The Secretarythen adds that she “possesses unreviewable discretion to withdraw an S&S designation,”citing *Mechanicsville Concrete, Inc*., 18 FMSHRC 877, 879 (June 1996) (“*Mechanicsville*”)(finding “no material difference between the Secretary’s discretion on theonehandtovacateacitation[pursuantto*RBKConstruction,Inc*.,15FMSHRC2099,2101(Oct. 1993)] and his discretion on theother hand not to issue a citation in the first instance or not to designate acitation as S&S.”1 Motion at 4 (“*RBK*”).

 

The Secretarycontinues to inappropriately cite *Mechanicsville*as authority. ThisCourt and other judges have noted that *Mechanicsville*does not supportthe Secretary’s claim that she possessesunreviewablediscretiontowithdrawanS&Sdesignation.Yet,theSecretarycontinues to assert otherwise.It’s time to be clear about the Commission’s holding in *Mechanicsville.*

* *

At the outsetof its decision in *Mechanicsville*, the Commission very plainly set forththeissuebeforeit,statingthatit“raisestheissues of*whetherajudgeonhisowninitiative*can designate a violation of a mandatory safety standard tobe significant and substantial.” 18

FMSHRC 877. The Commission’sanswer to the issue was equally plain, stating that it “agree[d] with theSecretary that the judge erred in determining *on his own initiative*thatthe violation was S&S.”*Id.*at879 (emphasis added). Thus, the decision was expressly limited to theCommission’s holding *that the judge erred*“*by adding a new findingand conclusion*, i.e., that the violation posed a hazard to employees thatwas reasonably likely to result in a reasonably seriousinjuryandwasthereforeS&S.”*Id.*at880(emphasisadded)*.*TheCommission’sdecision addednothingmoretothatholding.

 

1*RBK*holdsonlythattheSecretaryhastheauthorityto*vacate*thecitations.15FMSHRCat 2101

 

That the Commission’s decision in *Mechanicsville*didnot go beyond the very words it employed in that decision was made additionallyclear in *Spartan Mining*, 30 FMSHRC 699 (August 2008). There, Spartantried to expand *Mechanicsville*but the Commission would have nothing ofit, informing that it “*reject[ed]*Spartan’s contention that the judgewas bound by the Secretary’s assessment of the degree of negligence of“moderate” contained in the citation. ... Spartanunpersuasivelyrelieson*MechanicsvilleConcrete,Inc*.,18FMSHRC877,879-80(June1996) (finding that judge may not designate a violation as S&S on his owninitiative), to assert that the judge’s alteration of the citation wasimpermissible. *However, Mechanicsville is distinguishable because modifyinga negligence determination, as the judge did here, is authorized by the MineAct, whereas inserting an S&S designation is not.*”*Spartan*at *22 (emphasis added).

 

Accordingly,there is *no*basis for the Secretary’s habitual citation to *Mechanicsville*as authority for the claim that she possesses unreviewable discretion to *withdraw*an S&S designation.It is onething for the Secretary *to argue*that the Commission’s holding in *Mechanicsville*should be *expanded*beyond that holding, but to assert that the decisionaffords theSecretarywithunreviewablediscretiontowithdrawsuchafindingisbeyondthepale.Here, the Secretary does not present itscontention as an argument.Instead,the Secretary’s attorney presents his position as the state of the law.It is not.

 

Attorneys havean obligation not to misstate case law.*Teamsters Local No. 579 v. B&****M Transit, Inc.,*882 F.2d 274, 280 (7th Cir.1989).Rule 11 of the Federal Rules of CivilProcedure requires attorneys to inquire about the ... law before filingpleadings. ... an attorney whosubmitsapleadingmustcertifythat:‘tothebestofthe[attorney's]knowledge,information, and belief formed after reasonable inquiry [thepleading] is ... warranted by existing law or a good faith argument for theextension, modification, or reversal of existing law.” *Dzwonkoski,*2008WL 2163916 (May 16, 2008) (S.D. Ala. 2008) citing *Howard v. Liberty MemorialHosp*.,

752F.Supp.1074,1080 (S.D.Ga.1990).

 

Therefore,unless and until the Commission revises its holding in *Mechanicsville*,the Secretary, both her attorneys and her non-attorney representatives,(Conference and litigation representative,“CLRs,”)shouldceaseinvokingthatdecisionforpropositionsnotsupportedby it.

 

 

## REVISITINGPRESENTCOMMISSIONLAWFORSETTLEMENTMOTIONSAS APPLIED TOTHIS MATTER.

** **

Fundamentally, the Secretary’s Motion in this matterdoes not meet the Commission’s testforsettlementapprovals,assetforthin*AmericanCoalCo.*,38FMSHRC1972,(Aug.2016) (“*AmCoal I*”),and *American Coal Co.*, 40 FMSHRC 983 (Aug. 2018) (“*AmCoal II*”)

 

Oncepast theobvious preliminaries – that amotionforsettlement must statethepenaltyamountoriginallyproposedbytheSecretaryandthenewamountthepartieshaveagreedtopay,

the Commission’s decision in *AmCoalII*sets forth the present requirements deemed sufficient for its judges incarrying out their “front line oversight of the settlement process” in order“to fulfilltheirdutyofdeterminingifasettlementofapenaltyisfair,reasonable,appropriateunder thefacts, and protects the public interest.” *Id.*at 985, 987.

 

TheCommissionrepeatedlyspokeoftheneedfor ‘factualsupport’forpenalty reduction.

*Id*. at 989, 990.Though the Commission advised that such‘facts’ “are not limited to facts related to the section 110(i) penaltycriteria or to the alleged violations,” the Commission still requiredthatfactsbepresented.*Id.*at986.Accordingly,ithas“requiredparties*tosubmitfacts*supporting a penalty amount agreed to in settlement.”*Id.*at 987.It noted, “[i]n particular, Commission Procedural Rule 31requires that a motion to approve penalty settlement must include for eachviolation “the penalty proposed by the Secretary, the amount of the penaltyagreed to in settlement, *and facts*in support of the penalty agreed toby the parties.” *Id.*

* *

TheCommissionrejectedtheneedforarespondenttopresent*legitimate*questionsoffact which can only be resolved through thehearing process and also rejected that there is a need to show any *legitimate*factual disagreement. *Id*. at 991.As such, the Commission stated that “[f]acts alleged in a proposedsettlement need not demonstrate a ‘legitimate’ disagreement that can only beresolved by a hearing.TheCommission’s Procedural Rules and standing precedent do not contain such arequirement. Rather, the Commission has recognized that parties may submitfacts that reflect a mutual position that the parties have agreed is acceptableto them in lieu of the hearing process.” *Id.*

* *

Despitetheabove,theCommission’s*AmCoalII*decisionstillrequiresthesubmissionof ‘facts.’ Such facts must be “mutually acceptable facts thatdemonstrate the proposed penalty reduction is fair, reasonable, appropriateunderthefacts, and protects thepublicinterest.”*Id.*at 991.Here, no facts have been presented.

 

It is not anexaggeration to describe the basis for the Secretary’s justification asessentially‘*becausewecan*.’Thoughsetforthabove,itisworthrepeatingwhattheSecretary presented here, to wit:

 

[t]heSecretary has elected to withdraw the S&S designation for this violationand resolveitas“unlikely.”Theproposedpenaltyreductioninthissettlementisbasedon the point values in 30 C.F.R. §100.3 based on the Secretary’s modificationto the citation.The Secretary’s useof the Part 100 regular assessment tables in settlement is a prima facieindication that the penalty reduction is fair, reasonable, and adequate underthe facts, and protects the public interest.

 

Motionat3-4.

 

Noneofthisamountstomutuallyacceptablefactsthatdemonstratetheproposedpenalty reduction is fair, reasonable, *appropriateunder the facts*, and protects the public interest.

### CitationNo. 9205356

** **

Thiscitationalsoinvokes30C.F.R.§75.1403.IssuedonJuly20,2022,theinspector’sCondition or Practice section of the citation states:

 

The MineOperator failed to maintain an unobstructed travelway of at least 24 inchesinwidthonwalksideofthe11-LConveyorBeltbetweentheoutbyendofthestorageunitandthebottomstepofthe6southMainsLeftTrackovercaststairs foradistanceof30feetinlength.Oldpiecesofconveyorbeltwerehumpedupin the air, there were 2small rolls of conveyor belt, splicing nail buckets, splices, a conveyorbeltcutterandsplicingtemplatefillingmostoftherequiredwalkwayin the cited area. Thewalkways in this area was wet, muddy and very slippery without having totraverse this extraneous materials. The Operator immediately started to clearthe extraneous materials after the issuance of this citation. **Standard75.1403 was cited 61 times**in two years at mine 3607230 (60 to theoperator, 1 to a contractor).

 

PetitionforCivilPenaltyat18(emphasisadded).

 

ThecitationwasterminatedonJuly21,2022,withtheinspectorsremarkingthat“[a]llof the extraneous materials have been cleaned out of the citedtravelway/walkway. There is now at least 24 inches of clear, unobstructedtravelway, therefore this citation is terminated. *Id.*at 19.

 

### AnalysisforCitationNo. 9205356

** **

AstheSecretary’sattorneyseeksthesamemodificationstothiscitationashedidfor Citation No.9204928 and offers the same justification, the Court’s previous analysisapplies.

 

### Summary:

** **

Asdiscussedabove,theSecretaryhascitedtoinapplicableprecedent,byrelyinguponanadministrative law judge decision, inappropriately cited to *MechanicsvilleConcrete, Inc*., 18 FMSHRC 877, (June 1996), for a proposition that casedoes not support, and failed to meet the Commission’s standards for anacceptable motion to approve settlement, per its decisions in *AmCoal I*and*AmCoal II*.

 

Thatsaid,becausetheCommissionhas,tothebestofthisCourt’sunderstanding,a100% approval rate for settlement motions,it has decided to approve the settlement in this instance because theCommission examines all settlement determinations made by its judges, and hasthe authority, per 29 C.F.R. §2700.71, to review a judge’s decision on its ownmotion.2

 

229C.F.R.§2700.71,titled,“ReviewbytheCommissiononitsownmotion,”provides“[a]tany time within 30 daysafter the issuance of a Judge's decision, the Commission may, by theaffirmative vote of at least two of the Commissioners present and voting,direct the case for review on its own motion. Review shall be directed onlyupon the ground that the decision may be contrary to law or Commission policyor that a novel question of policy has been presented.

 

TheCourthasconsideredtheSecretary’sMotionandapprovesitsolelyonthebasisofthe Commission’s decisions in *The American Coal Co*., 40 FMSHRC 983 (Aug.2018) and *Rockwell Mining, LLC*, 40 FMSHRC 994 (Aug. 2018) for thestandard to be applied by administrative law judges when reviewing suchsettlement motions under the Commission’s interpretation of section 110(k) ofthe Mine Act.As noted, under thosedecisions, reasonable inquiry by the Court is not permitted.

 

Accordingly,pertheCommission’sdecisionsonthescopeofajudge’sreviewauthority ofsettlements, the “information” presented in this settlement motion is sufficientfor approval.

 

WHEREFORE,themotionforapprovalofsettlementisGRANTED.CitationNo.

9205312ismodifiedtomoderatenegligence,CitationNo.9204928ismodifiedtounlikelyand non-S&S, Citation No. 9205356 ismodified to unlikely and non-S&S.

 

ItisORDEREDthattheRespondentpaytheagreed-uponcivilpenaltyof$1,897.00within 30 days of this order.3                                 Uponreceipt of payment, this case is DISMISSED.

 

 

William B. Moran 

AdministrativeLawJudge

 

Distribution:

 

AttorneyKyleD.Stelmack,U.S.DepartmentofLabor,OfficeoftheRegionalSolicitor1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19104 Stelmack.kyle.d@dol.gov

 

CraigS.Aaron,CONSOLEnergy,Inc.,275TechnologyDrive,Suite101 Canonsburg, PA 15317 craigaaron@consolenergy.com

 

The Commission shall state insuch direction for review the specific issue of law, Commission policy,ornovelquestionofpolicytobereviewed.Reviewshallbelimitedtotheissuesspecified in such direction for review.

 

3Penalties may be paid electronically at Pay.Gov, aservice of the U.S. Department of the Treasury,athttps://www.pay.gov/public/form/start/67564508.Alternatively,sendpayment (check ormoney order) to:U.S. Department ofTreasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO63179-0390.

ItisvitaltoincludeDocketandA.C.Numberswhenremittingpayments.

 

 

 

ExhibitC

## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

** **

OFFICEOF ADMINISTRATIVE LAW JUDGES 1331PENNSYLVANIAAVE.,N.W.,SUITE1400

WASHINGTON,DC20004-1710

TELEPHONE:202434-9987/FAX202434-9949

 

May4,2023

 
| SECRETARY OF LABORMINESAFETYANDHEALTH  ADMINISTRATION (MSHA),

Petitioner,

 

v.

 

EXTRAENERGY,INC.,

Respondent. | CIVILPENALTY PROCEEDING

 

DocketNo.  WEVA2023-0071

A.C.No.46-09395-565851

 

 

Mine:DryBranchSurfaceMine |
|---------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------|

 

## ORDERACCEPTINGAPPEARANCE

**ORDERDENYINGMOTIONTOAPPROVESETTLEMENT**

** **

Before:Judge Young

 

Thiscase isbefore meupon petitionfor assessment of civil penalty underSection105(d) of the Federal MineSafety and Health Act of 1977.TheSecretary has filed a Joint Motion to Approve Settlement and has set forth thefactual basis for the proposed modifications.The Respondenthasagreedtotheproposedchanges.Theoriginallyassessedamountwas$6,548.00, and the proposed settlementamount is $1,324.00.

 

Itis**ORDERED**thattheConferenceandLitigationRepresentative(CLR)beacceptedto represent the Secretaryinaccordance withthe notice oflimited appearance he has filedwiththe penalty petition.*CyprusEmerald Resources Corporation*, 16 FMSHRC 2359 (Nov. 1994).

 

Theproposed settlement includesthefollowingmodifications:

 
| **Citation/Order****No.** | **Originally  Proposed Assessment** | **Settlement  Amount** |  

**Modifications**                                                                            |
|---------------------------|--------------------------------------|-------------------------|------------------------------------------------------------------------------------------------------|
|  

9565489           |  

$3,274.00                    |  

$662.00         | Modifygravityfrom“Reasonably Likely”

to“Unlikely,”andfrom“S&S”to“Non- S&S.”                 |
|  

9565490           |  

$3,274.00                    |  

$662.00         | Modifygravityfrom“Reasonably Likely”

to“Unlikely,”andfrom“S&S”to“Non- S&S.”                 |
| **Total**                 | **$6,548.00**                        | **$1,324.00**           | **80%Reduction**                                                                                     |

 

The motionproposes to remove the S&S designation from each citation.Theseviolationswere for failure to maintain berms of adequate height on an elevated roadway.The provisionreads, “Bermsorguardsshallbeprovidedontheouter bankofelevatedroadways.”30 C.F.R.§77.1605(k)(2023).

 

Thecitationsallegedthepresenceof threebermsectionsmeasuring24–44inches, 30 inches, and42–55inches,forvaryingdistances(from100feetto.2miles)abuttinga50-foot drop, where the largest equipment used on the road hada mid-axle height of 63 inches.*See*Citation No. 9565489 at 1 (Sept. 7, 2022); Citation No. 9565490 at 1 (Sept.7, 2022).

 

Themotionprovided substantivelythesameexplanationforthemodification ofeach.

The Secretary acceptedRespondent’s contentions that (1) “while not at the full required height” theberms were “substantially built,” “wide,” and “capable of restraining avehicle,” and (2) the affectedarea[road] waswidewithgoodvisibility.S.Mot.toApproveSettlement,at3(Mar.23, 2023).These explanations are inadequate to support removal of anS&S designation.

 

Partiesmust “providefactsin supportofthemodification for*each violation*,”29C.F.R.§ 2700.31(b) (2022) (emphasisadded), so that Commission judges may “set forth reasons for approval,” *id.*§2700.31(g), when reviewing settlements under the *AmCoal*factors, 30U.S.C. § 820(k) (2023).The providedfacts should therefore be substantive and relevant and, taken as true, shouldenablea judge toplausibly infer thatthe violation didnot occur or does not meettherequirementsofthedesignationthepartiesproposetomodify.For S&S,thismeansthatthefacts should challenge one of the *Mathies*elements.

 

Beforeaddressing the S&S issue, I note a regulatory anomaly that is susceptibleto only onereasonableresolution.Theregulationsgoverning metal and nonmetal surfaceminesrequire that, where required, “[b]erms or guardrails shall be at leastmid-axle height of the largest self- propelled mobile equipment which usuallytravels the roadway.”30 C.F.R. §56.9300(b), 57.9300(b).1Incontrast, thecitedprovisionofPart77requiringbermsforelevatedroadwaysat surface coal mines and the surface areas of underground coal minesmerely defines berm as “a pile or mound of material capable of restraining avehicle.”30 C.F.R. § 77.2.

 

Part77thereforedoesnotincludeamid-axleheightstandard.Thatlanguagehasbeenin place since the Coal Act.*See Final Rule*, 36 Fed. Reg.9,364, 9,380 (May 22, 1971).The Part56 mid-axle language, however, was established later.See *Safety Standards for Loading, Hauling, and Dumping andMachinery and Equipment at Metal and Nonmetal Mines*, 53 Fed.

Red.32,496,32,520–21(Aug.25,1988).

 

The partiesappear to implicitly accept that Part 77 requires the minimum height of thecited berms in this case to be 63 inches, the mid-axle height of the largestvehicle regularly traveling the roadway.*See*Citations 9565489, 9565490, § 8 (Sept. 7, 2022) (citing inadequate bermsand noting mid-axle height of largest equipment as 63 inches); Mot. at 3(providing Respondent’sargumentconceding that bermswerenot attherequired height atsomeareas).But

1Part56appliestosurfacemetalandnon-metalmines, whilePart57governsthesurfaceareasofunderground metal and non-metal mines.Thelanguage in the two cited provisions is identical.

itisimportantfor theCommissiontorecognizethemid-axlestandardasbindingupontheoperators of surface and underground coal mines.

 

The Commissionhas not yet done so directly.But ithas affirmed a judge’s finding that mid-axle height was that which a reasonablyprudent person would have recognized as required topreventthisprovision’scontemplatedhazard.*SeeBlackBeautyCoalCo.*,34FMSHRC1733, 1735, 1748 (Aug. 2012).2

 

The Commissionhad previously applied the reasonably prudent person standard to thisprovision.*SeeU.S. SteelCorp.*, 5FMSHRC3, 7(Jan.1983)(requiringevidenceastowhattype of berm areasonably prudent person wouldinstallunder the circumstances); *The HannaMiningCo.*, 3 FMSHRC 2045, 2045–46 (Sept. 1981) (finding substantial evidencesupporting that a

two-to-three-footbermwasinadequatetopreventovertravel).3

 

Thereisofcoursenosubstantivedifferencebetweenroadwaysandtrucksatcoalmines and thoseat metal or nonmetalmines.In both contexts, bermshavebeendeemed necessary to prevent overtravel and fall from an elevated roadway.

 

IthasbeentheSecretary’slitigationpositionthatinadequatebermviolationsexistwherethey are not mid-axle height, and that they should be S&S where thereexists the risk of a significant fall.*SeeBuffalo Crushed Stone, Inc.*, 16 FMSHRC 2043, 2044, 2045 (Oct. 1994)(affirming a Part 56 violation where an inadequate berm abutted a 25-foot drop,and reversing the judge’s non-S&S finding).

 

Having made aformal determinationinnotice andcomment rulemaking, and aninformaldetermination in litigation, that the mid-axle height standard is necessary toprotect miner health and safety, the Secretary is bound to uphold it now andshould formalize the standard by regulation.Intheabsenceof suchaction,theCommissionshouldmakeclear thatthisstandardis a binding norm.

 

The Secretaryhas gone to great lengths in the past to claim her litigation position isentitled to deference as an exercise of delegated rulemaking authority.*See Sec’y of Labor v. TwentymileCoalCo.*,411F.3d256, 261(D.C. Cir.2005)(citing*Sec’yofLaborv.ExcelMining, LLC*, 334F.3d1,6(D.C.Cir.2003))(“But because ‘in thestatutoryscheme ofthe Mine Act,the Secretary’s litigating positionbefore [the Commission] is as much an exercise of delegated lawmaking powers asthe Secretary’s promulgation of a . . . health and safety standard.................................................................................................... ”);

2*See also id.*at 1748 n.19 (quoting *U.S. Steel Corp.*, 5 FMSHRC 3,5 (Jan. 1983)) (“[T]he adequacy of an operator’s . . . guards [is] evaluated ineach case by reference to an objective standardor areasonablyprudentpersonfamiliarwiththeminingindustryandinthecontextof the preventive purpose of the statute.”).

3I note that both decisions were published before the 1988 addition of themid-axle language to Part 56, and *U.S. Steel*acknowledged the need forreform if the Secretary intended to apply a minimumheightstandard.*See*5FMSHRCat5n.7(“TheSecretaryisprivilegedundertheMine Act to write a more specific bermstandard setting forth more detailed specifications for construction of safeberms and guards.”).

*AdamWhitt*,35FMSHRC3487,3490(Nov.2013);*BHPCopper,Inc.*,21FMSHRC758,764

n.11(citing*Martinv.OSHRC*,499U.S.144,156–57(1991)).

 

Such authorityis based on “technical expertise and political authority to carry out statutorymandates.”*Morton Int’l, Inc.,Morton Salt*, 18 FMSHRC 533, 452 (Apr. 1996) (quoting *Gen. Elec. Co. v.EPA*, 53 F.3d 1324, 1327 (D.C. Cir. 1995)); *see also Sec’y of Labor onbehalf of Wamsley v. Mut. Mining, Inc.*, 80 F.3d 110, 114 (4th Cir. 1996)(quoting *Martin*,499 U.S. at152) (emphasizing that the Secretary’s promulgation and enforcement ofstandards brings her into “constant contact with the daily operations of themines,” endowing her with the “‘historicalfamiliarityandpolicymakingexpertise’ ...thatarethebasisfor judicialdeferenceto agencies”).

 

The Secretarycannot legitimately assert that citation for a berm standard in a metal ornonmetal mine is a violation, and S&S due to likely injury from a fall fromthe elevatedroadway, andsimultaneously claim that the same situation—likely hazard and injury—are notS&S,or notevenaviolation.IftheSecretaryhasdecidedthatmid-axleheightisthestandardfor bermsize to prevent overtravel on an elevated road in a metal or nonmetal mine, andthe protective purpose of the provision is to prevent injury from such ahazard, then that must be the standard for the same situation, even if in adifferent type of mine.

 

TheSecretarycannotapplyadifferentstandardforcoalminesandmetal/nonmetalmines because there is no principleddistinction.The laws of gravity andphysics certainly will not recognizeone,andatruckovertravelinganinadequatebermbetweenaroadandalongdropwill produce the same tragic consequencesin either case.

 

I also wouldpoint out that if the Secretary’s litigation position is in effect an exerciseof her delegated rulemaking authority, then a failure to adopt the mid-axlestandard in litigation would be contrary to the Act’s requirement that “[n]omandatory health or safety standard promulgatedunderthistitleshallreducetheprotectionaffordedminersbyanexistingmandatory health or safety standard.”30 U.S.C. § 811(a)(9).

 

Thatiswhat makestheabdicationofresponsibilityin thissettlement sodisturbing.

While the inspector in this caseappropriately detailed the failure to meet the mid-axle height requirement,theproposedsettlementdisregardswhatmustbeeffectivelyconsideredtobetheapplicable health and safety standard and the attendant consequences of thatfailure.

 

The motionbetrays an abject disregard of the Commission’s S&S standards and thesafetyof minersimperiledbythehazarddescribedinthiscase.Thereisnoconsiderationofthe degree orextent of the deficiency here.I thusreject Respondent’s second contention and the Secretary’s acceptance of it asone whose proof at hearing would “lessen[] the likelihood of an accident orinjury,” S. Mot. at 3, as contrary to the law and the safety purposes of theAct.

 

First, thelimited facts that have been provided establish beyond debate that the hazardexistedasdescribedinthecitationandwoulddonothingtomakethecasethataninjurywould not be reasonably likely to occur.

The motion’scontention and theposited factsareinsufficient to challenge thelikelihood of the contemplated hazard’soccurrence because the provision requiring berms is not qualified byroadwayorenvironmentalconditions.Itdoesnotsaythatbermsarerequired*onlyif*theroad is narrower than a designated,minimum width or when minimum visibility conditions are not met.

 

Nonetheless, themotion asserts that the berms are “capable of restraining a vehicle” basedonundefined“substantialconstruction”and“width,”twothingsthatarenotcontemplatedby the only standard the Secretary has applied to berms—*height*.

 

Nor does themotionsuggest that this is not aroadway “usually traveled” by the largestvehiclesatthemine.Wecannotassumeminerprecaution,abatement,orotherintervention.In sum, there is nothing to support the notion that thisviolation will not present a hazard of overtravel to the miners using thisroad.

 

Once the hazardhas been found to be reasonably likely to materialize, it is an assumed factbinding on the remainder of the analysis, and the likelihood of injury isevaluated based on theoccurrenceofthathazard.*NewtownEnergy,Inc.*, 38FMSHRC2033,2038(Aug.2013).IfI therefore reach the conclusion that the hazard—a vehiclefalling from an elevated roadway duetoinadequate berm height—is reasonably likely, then a contention regarding thewidth of the road or visibility would have no effect on the likelihood ofinjury.

 

Theprovisioncitedheredoesnotexpresslyrequirebermstobe“mid-axleheight,”but both theSecretary and Respondent appear to have accepted it as a standard in their ownagreement: “while not atthefullrequiredheight. . . .”And as notedabove, I must applythatstandard because any other approach would be inconsistent with the Act and theSecretary’s now-binding interpretations of her own regulations.

 

Therefore, theapplicable mandatory safety standard here, accepted by the parties andenshrined in the law, is the mid-axle height for thelargest vehicle that usually travels this roadway.Themotiondoesnotchallengetheinspector’sdeterminationthatthis*minimum*height is 63 inches.

 

Therearethusonly twopossiblemeansofavoidingan S&Sdeterminationin thiscase.

Either the violation would notsignificantly and substantially contribute to a hazard of overtravelingtheinadequateberms, or theconsequencesof theovertravelwouldnotbe reasonably likely to result in seriousinjury or death.

 

The secondcontention is readily dispensed with.Anyserious argument would have requiredsomequalificationordisputeoftheinspector’sobservationthatthedrop-offbeyondthe inadequate berms was *50 feet.*Themotion does not challenge the inspector’s observation.We therefore must accept as fact that a truck traveling over orthrough the berms would plummet or roll uncontrolled for that distance.Miners who know the consequences ofserious overtravel have been seriously injured or killed trying to escape atruck that has encountered this hazard.

*See SolarSources Mining, LLC*, 43 FMSHRC 367, 382 n.1 (Aug. 2021) (Traynor, Chair,dissenting) (“Here, duetothedeficiencyintheberm, thedumptruck’sbackwheelover-traveled

theledgeofthedumpsite,fellandflippedupsidedownintotheslurrypitapproximately48feetbelow.The driver escaped almostcertain death by leaping from the truck’s cab before it descended over theledge.The jump and fall resulted ina broken foot that required multiple surgeries to reconstruct using donatedbone, steel and screws.”).

 

Thatleavesonlythepossibilitythattherewasnoreasonablelikelihoodthatthetruckswould overtravel the substandard berms.This,too, is logically untenable under the facts presented.

 

Worthnotingistheextentof theviolations.Thebermsfailedtomeettheheightdeemed necessary to protect miners forlengths ranging from one hundred to more than one thousand feet.Nowhere does the motion address the effectthe extensive nature of the violation might have on the likelihood of a truckencountering a berm that was not constructed as required to prevent overtravel.

 

It is alsoimportant tonote thatthe berm heights were not cited becausethey technically failed to meet the Secretary’s standards or were marginallydeficient.When measured, the heightof someof thebermswasbetween24and30inches—lessthanhalf(andperhapsaslittle as 40percent) of the required height.

 

Itispossibletomakeaprincipled,cogentargumentquestioningwhether thedegreeofaviolation would be sufficient to support an S&S designation.*See ICG Illinois, LLC*, 38 FMSHRC2473, 2483–92 (Oct. 2016) (Althen, Comm’r, dissenting) (noting the lack ofrecord evidence showing that an 11-percent exceedance in distance of refugechamber from working face would impair the ability of miners to reach and usethe chamber in an emergency).Themotion completely fails to note any deficiency in the facts they have chosen topresent, which establish these violations as S&S.

 

Commissionprecedentalsoforeclosesthemotion’sassertionthattheseviolationsmight not be foundtobeS&Sat hearing.Theberms here were similar tothose in*The HannaMining Co.*,and the drop-off was significantly higher than that found sufficient forS&S in *Buffalo Crushed Stone, Inc*.Indeed,degreeofdanger,*asdescribedin thefactsthepartieshavechosento present*, is extraordinary, and there is no rational basis upon which onemight conclude that these violations, as defined in the citation and affirmedby the facts presented in support of the motion, are not S&S.

 

Rather thanadequately challenging any of the *Mathies*elements, the facts providedinstead abundantly support the conclusion that the violations must be affirmedas S&S.The cited berm heightswere inadequate, sufficient for a finding of violation; overtravel and asubstantial fall wasreasonablylikely due tothatinadequacy, because the reasoned judgmentof the Secretary has determined what must beprovided, and thecited bermsare woefully short of that standard; an injury was self-evidently likely toresult from the 50-foot fall in heavy equipment;andpermanentdisabilityordeathwastheforeseeableconsequenceofthatfall.The factspresentedthereforedonotenablemetoconcludethattheSecretaryhasnotabusedher discretion in removing the designation; I would abuse mine if Iapproved the settlement.4

 

The Secretaryalso continues to incorrectly assert the ability to exercise discretion toremove an S&S designation as part of a settlement, citing *AmericanAggregates of Michigan, Inc.*and*MechanicsvilleConcrete, Inc.*toclaimthisunfettereddiscretion.S. Mot. at3–4.Thesecases are known by now to be invalid as authority for the principles they claimto represent.

 

*Mechanicsville*stated that a judge may not *add*an S&S designation on his or herown initiative.18FMSHRC877, 880,882(June1996).Thisactioninvolvesaproposalto*delete*one in settlement.*American Aggregates*stated,“Commission Judges do not have the discretion to make [an S&S finding]unless it is asserted in the first instance by MSHA.”42 FMSHRC 570, 576 (Aug. 2020).Here, the finding was asserted by MSHA in the first instance.Further, that decision reversed a judge’ssettlement denial because he ignoredmultiple providedfactsrelevant to the proposed modifications.*Id.*at 577, 581.The motion here does not provide factsthat challenge the S&S designation.Neither,therefore, is applicable to the situation here.

 

Commission judges have repeatedly criticized theSecretary’s use of *Mechanicsville Concrete*and *American Aggregates ofMichigan*in this context as a blatant misstatement of the law.As one such order recently noted,“Attorneyshave an obligation not tomisstate case law.” *DecisionApprovingSettlementwithSignificantReservations*, DocketNo.PENN20222-0129, at 6(Apr. 25, 2023)(ALJ)(citing*TeamstersLocalNo. 579v.B&MTransitCo.*,882F2d.274,280(7th Cir. 1989)).The court in *TeamstersLocal No. 579*approved the imposition of Rule 11 sanctions for thetransgression.

 

Thereareminimumstandardsof practiceineverytribunal,includingthisone.Erroneous mischaracterizations ofprecedent fail to meet those standards and will not be tolerated.A CLR whocitesthesecases, falsely, inasubsequentmotionastheyhavebeencitedheremaybebarredfrom practice before me.5Theremay be other consequences.

 

**ITIS ORDERED**thatthemotiontoapprovesettlementis**DENIED**.

 

Michael G. Young

 AdministrativeLawJudge

 

4 Thisdoesnotconstitute a finding ofviolationorS&S; Ihave notrequiredthe Secretaryto establishsuch.I merelynotethatthelimitedfactsthepartieshavechosentoprovidewould preclude a non-S&S finding forthis violation.

5AlthoughthesecaseswereincludedbyapleadingdraftedbyaCLR,I wouldexpectanattorney to knowbetter, and a transgression against the law of this sort by an attorney wouldbe evenmore egregious.

Distribution (byemail):

 

BruceH. Jakubauskas, CLR, U.S.DepartmentofLabor, MSHA,ThornHillIndustrialPark,178 Thorn HillRoad, Suite 100, Warrendale, PA 15086, jakubauskas.bruce@dol.gov

 

JonathanR.Ellis,STEPTOE&JOHNSONPLLC,ChaseTower,SeventeenthFloor,P.O.Box1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

 

DanaL. Ferguson, Officeof theSolicitor,U.S.Dep’tofLabor, 20112thStreetSouth,Suite401,Arlington, VA 22202, ferguson.dana@dol.gov

 

 

 

ExhibitD

## FEDERALMINESAFETYANDHEALTHREVIEWCOMMISSION

** **

OFFICE OF ADMINISTRATIVELAW JUDGES 1331PENNSYLVANIAAVENUE,NW,SUITE520N WASHINGTON, DC20004-1710

TELEPHONE:202-434-9987/FAX:202-434-9949

 

May11,2023

 
| SECRETARY  OF LABOR, MINESAFETYANDHEALTH  ADMINISTRATION (MSHA),

Petitioner

 

v.

 

CONSOLMININGCOMPANY LLC,

Respondent | CIVILPENALTY  PROCEEDING

 

DocketNo. WEVA2023-0141

A.C.No.46-09569-568207

 

 

 

Mine:ItmannNo.5 |
|------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------|

 

## ORDERDENYINGMOTIONTOAPPROVESETTLEMENTAND STRIKINGMATERIAL FROM MOTION

** **

On April 25,2023, a Commission ALJ issued an order noting with disapproval the Secretary’songoingcitationto*MechanicsvilleConcrete, Inc.*,18FMSHRC877,880,882(June 1996), asauthorityfor herremovalofthe significant and substantial designationsfrom citations during the settlementprocess.*See*Decision ApprovingSettlement with Significant Reservations, Docket no. PENN 2022-0129, at 4–6(Apr. 25, 2023) (ALJ) (“Reservations”).

Commissionjudgeshaveroutinelyobservedthat*Mechanicsville*,andthealsooft-cited*American Aggregates of Michigan, Inc.*,42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise for which they havebeen cited.1

 

In thisinstance, though, the Judge correctly pointed out that parties have a duty notto misstate case law and that such misconduct has been affirmed as sanctionableunder Rule 11 of theFederalRulesofCivilProcedure.*See*Reservationsat6(citing*TeamstersLocalNo. 579v.B & M Transit, Inc.*,882 F.2d 274, 280 (7th Cir. 1989)).

 

Following this,I issued an order on May 3 denying a motion to approve settlement, in which Isaid that the continued citation to these cases as authority for the removal ofS&S designationsfallsbelowtheminimumstandardsofpracticebeforetheCommission.*See*OrderAccepting Appearanceand DenyingMotion to ApproveSettlement,Docket No.WEVA2023- 0071, at 7(May 3, 2023) (ALJ).I said that aconference and litigation representative who submitted a motion with suchcitations would be barred from practice before me.*Id.*

1*See*Decision Approving Settlement,Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order DenyingSettlement,DocketNo.WEST2022-0249,at5(Nov.2,2022)(ALJ);OrderDenying Settlement, Docket No. WEST2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ).

I also said thatthere mightbe otherconsequences.I notedthat anattorney shouldknow better, andthatsuchmisstatementsof thelawbyanattorneywouldbeevenmoreegregious.*Id.*at 7 n.5.Thesupervising attorney for the Labor Department’s CLR’s was included in thedistribution for the order.

 

On May 9, theSecretary filed with the Commission a Motion to Approve Partial Settlement,which again included the offending citations to *Mechanicsville*and *AmericanAggregates*.*See*S. Mot. toApprove Partial Settlement, Docket No. WEVA 2023-0141, at 3 (May 9, 2023).Not only is the recitation of these casesobviously inappropriate; it is impertinent.Tomy knowledge, no Commission judge has agreed with this mischaracterization ofthelaw, andI haveapproveddozensofS&Sremovalswithoutever consideringeither caseasauthority for the removal.Ratherthan adhering to the clearly-expressed expectations of the Commission’s judges,the Secretary has continued to recite this non-sequitur any time an S&Sdesignation is proposed for removal in a settlement.

 

An attorney fora government agency who misstates the law arrogates the properly conferredconstitutionalauthorityof otherstodeterminewhatthelaw*is.*Likebridgescour, this subtlecorrosion wears on the foundation of the rule of law and threatens theintegrity of a structure upon which the public depends.

 

While the fullarray of sanctions under Rule 11 may not be available as a corrective, I havemade clear that misleading use of precedent fails to meet the minimum standardsofpracticebeforetheCommission.Itsredressbeginswitharefusaltoaccepttheunacceptable.By this order, I therefore **STRIKE**thereference to the cited cases and the assertions they purportedly support.2

 

Strikingmaterial, and even professional sanctions, are appropriate responses to badfaith employment of case law.*SeeCollar v. Abalux, Inc.*, 806 Fed. Appx. 860, 864 (11th Cir. 2020) (affirmingsanctions where an attorney continually misstated the import of case law); *Kamdem-Ouaffov. Huczko*,810Fed.Appx.82,83(3dCir.2020)(citingFed.R.Civ.P.12(f))(notingthat impertinent analysis of lawis“plainly vulnerable to []remedialstrike”). Strikingthe impertinentmatter from the motion is the least severe sanction I could impose in thesecircumstances.As with the Mine Act,those who persist in the discredited and misleading use of precedent shouldreasonably anticipate that their conduct will be deemed knowing or intentionaland will be addressed with progressive severity until the practice isdiscontinued.

 

The motion toapprove settlement is **DENIED**without reaching the merits.This denial will be reconsidered if thepartiesrefile the motionwithout thenoted language,*see supra*note 2. Thepartiesshould anticipatethat themattersaddressed by themotion willberesolved at hearing unlessanduntilamotionthatmeetsthestandardsof practicebeforetheCommissionhasbeen filed.

 

2The language to be stricken from the motion reads: “Taking into account theuncertainty of the outcomeof theseissuesattrial,theSecretaryhasdecidedtoexerciseher discretiontomodifythe gravity to unlikely and not S&S asrecognized in *Am. Aggregates of Michigan, Inc.*, 42FMSHRC 570, 576-79 (Aug. 2020) (citing *MechanicsvilleConcrete, Inc.*, 18 FMSHRC 877, 879-80(June1996)).”Mot.at3.

 

 

Michael G. Young 

AdministrativeLawJudge

 

 

 

Distribution:

 

RobertS.Wilson,OfficeoftheSolicitor, U.S.DepartmentofLabor, 20112thStreetSouth,Suite 401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov

 

D.CassTrent,CLR,U.S.DepartmentofLabor,MSHA,4499AppalachianHwy,Pineville,WV 24874, trent.david@dol.gov

 

JimMcHugh,HardyPenceLLC,10HaleStreet,4thFloor,P.O.Box2548,Charleston,WV 25329, jmchugh@hardypence.com

 

CraigAaron,CONSOLEnergyInc.,275TechnologyDrive,Suite101, Canonsburg,PA15317, craigaaron@consolenergy.com