**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**721 19th St., Suite 443**

**Denver, CO 80202-2500**

**Office: (303)844-5266/Fax: (303) 844-5268**

 

 

SECRETARYOF LABOR,                                 :     CIVIL PENALTY PROCEEDINGS

 MINESAFETY AND HEALTH                        :

 ADMINISTRATION(MSHA),                          :     Docket No. WEST 2022-0267

                                    Petitioner,                         :     A.C.No. 48-00152-550854

                                                                              :

                        v.                                                   :     DocketNo. WEST 2022-0268

                                                                              :     A.C.No. 48-00152-550854

GENESISALKALI, LLC,                                   :

                                    Respondent.                      :     Mine:Genesis Alkali @ Westvaco

** **

**ORDER DENYING SETTLEMENT**

 

            These cases are beforeme upon a petition for assessment of a civil penalty under Section 105(d) ofthe Federal Mine Safety and Health Act of 1977. The petition originallycontained 38 citations and orders, until the Commission’s docket officereallocated the citations into three dockets: WEST 2022-0197[1], WEST 2022-0267, and WEST2022-0268. The latter two dockets are currently pending before this Court. Inthe interest of judicial economy, these matters will be considered jointlysince they both involve citations issued to the same operator during the sametime frame.

 

The parties havesettled both dockets, and the Secretary of Labor has submitted a Motion toApprove Settlement in each case. The proposed settlements include dramaticpenalty reductions and must be denied for the reasons set forth below. 

 

            The terms of theproposed settlement are as follows: 

 
| **Citation/  Order No.**       | **Originally Proposed Assessment** | **Settlement Amount** | **Modification**                                                                                                                                                                                                                                                                                                |
|---------------------------------|------------------------------------|-----------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **Docket No. WEST 2022-0267**   |
| 9655800                         | $  1,869.00                        | $   169.00            | Modify  gravity from “Fatal” to “Lost Workdays or Restricted Duty” and modify  negligence from “High” to “Moderate.” 

                                                                                                                                                                                  |
| 9655900                         | $  2,790.00                        | $  2,790.00           | No  change. 

                                                                                                                                                                                                                                                                                            |
| 9655940                         | $   183.00                         | $   183.00            | No  change. 

                                                                                                                                                                                                                                                                                            |
| 9655941                         | $   144.00                         | $   144.00            | No  change. 

                                                                                                                                                                                                                                                                                            |
| 9655943                         | $   183.00                         | $   183.00            | No  change. 

                                                                                                                                                                                                                                                                                            |
| 9655944                         | $   144.00                         | $   144.00            | No  change. 

                                                                                                                                                                                                                                                                                            |
| 9655946                         | $  4,884.00                        | $  4,884.00           | No  change. 

                                                                                                                                                                                                                                                                                            |
| 9656004                         | $  3,022.00                        | $     0.00            | Vacate. 

                                                                                                                                                                                                                                                                                                 |
| 9656006                         | $  2,376.00                        | $     0.00            | Vacate. 

                                                                                                                                                                                                                                                                                                 |
| 9656007                         | $  7,890.00                        | $     0.00            | Vacate. 

                                                                                                                                                                                                                                                                                                 |
| 9656008                         | $  10,034.00                      | $     0.00            | Vacate. 

                                                                                                                                                                                                                                                                                                 |
| 9656010                         | $  10,034.00                      | $  1,254.00           | Modify  Part/Section from 30 C.F.R. § 57.11001 to 57.20003(a), modify gravity from  “Reasonably Likely” to “Unlikely” and “Lost Workdays or Restricted Duty,” modify  negligence from “High” to “Moderate” and modify Significant and Substantial  from “Yes” to “No.”

                               |
| 9656011                         | $   987.00                         | $   987.00            | No  change. 

                                                                                                                                                                                                                                                                                            |
| **TOTAL**                       | **$  44,540.00**                  | **$  10,738.00**     | ** **                                                                                                                                                                                                                                                                                                      |
| **Docket  No. WEST 2022-0268** |
| 9656012                         | $  16,213.00                      | $  1,472.00          | Modify  gravity from “Fatal” to “Lost Workdays or Restricted Duty” and modify  negligence from “High” to “Moderate.” 

** **                                                                                                                                                                             |
| 9656013                         | $  4,507.00                        | $  1,358.00          | Modify  negligence from “High” to “Moderate.” 

** **                                                                                                                                                                                                                                                     |
| 9656014                         | $   481.00                         | $  145.00             | Modify  negligence from “High” to “Moderate.” 

** **                                                                                                                                                                                                                                                     |
| 9656015                         | $  4,507.00                        | $  841.00             | Modify  Part/Section from 30 C.F.R. § 57.11001 to 57.20003(a), modify gravity from  “Permanently Disabling” to “Lost Workdays or Restricted Duty,” and modify  negligence from “High” to “Moderate.” 

** **                                                                                            |
| 9656016                         | $  4,161.00                        | $    0.00             | Vacate.

** **                                                                                                                                                                                                                                                                                             |
| 9656017                         | $  4,161.00                        | $    0.00             | Vacate. 

** **                                                                                                                                                                                                                                                                                            |
| 9656018                         | $  7,890.00                        | $  145.00             | Modify  gravity from “Reasonably Likely” and “Fatal” to “Unlikely” and “Lost Workdays  or Restricted Duty,” modify negligence from “High” to “Moderate,” and modify  Significant and Substantial from “Yes” to “No.” 

** **                                                                            |
| 9656019                         | $ 16,213.00                        | $  296.00             | Modify  gravity from “Reasonably Likely” and “Fatal” to “Unlikely” and “Lost Workdays  or Restricted Duty,” modify negligence from “High” to “Moderate,” and modify  Significant and Substantial from “Yes” to “No.” 

** **                                                                            |
| 9656020                         | $  10,034.00                      | $    0.00             | Vacate. 

** **                                                                                                                                                                                                                                                                                            |
| 9656024                         | $  3,022.00                        | $    0.00             | Vacate. 

** **                                                                                                                                                                                                                                                                                            |
| 9656025                         | $  4,884.00                        | $  296.00             | Modify  gravity from “Reasonably Likely” and “Fatal” to “Unlikely” and “Lost Workdays  or Restricted Duty,” and modify Significant and Substantial from “Yes” to  “No.” 

** **                                                                                                                         |
| 9656026                         | $   296.00                         | $  133.00             | Modify  gravity from “Unlikely” to “No Likelihood.” 

** **                                                                                                                                                                                                                                               |
| **TOTAL**                       | **$  76,369.00**                  | **$  4,686.00**      | ** **                                                                                                                                                                                                                                                                                                      |

 

 

Section 110(k) of theMine Act provides that “[n]o proposed penalty which has been contested beforethe Commission under section 105(a) shall be compromised, mitigated, or settledexcept with the approval of the Commission.” 30 U.S.C. § 820(k). This provisionof the Act was designed to shed light and scrutiny upon the dealmaking thattakes place between mine operators and government regulators, and to ensurethat settlements further the public interest and the purposes of the Mine Act. *SeeBlack Beauty Coal Co.*, 34 FMSHRC 1856, 1860-64. 

 

 

Commission judges reviewsettlements to determine whether they are “fair, reasonable, appropriate underthe facts, and protect the public interest.” *Am. Coal Co.*, 38 FMSHRC1972, 1976 (Aug. 2016). To enable judges to make this determination, Commissionrules require that a motion to approve a penalty settlement must include “factsin support of the penalty agreed to by the parties.” 30 C.F.R.§ 2700.31(b). A judge reviews the submitted facts,the six penalty criteria set forth in section 110(i) of the Act, and all otherrelevant considerations when scrutinizing a settlement. *See**Am. Coal Co.*, 38 FMSHRC at 1976, 1982.

 

**I.              ****TheAssessed Penalty, Proposed Settlement, and Amendments**

 

The Respondent operatesa large trona mine near Green River, Wyoming. In January 2022, MSHA issued anumber of citations and orders to the Respondent for alleged violations of mandatorysafety standards. The Respondent contested 38 of those citations. Some of thecontested citations form the basis of the two dockets at issue here.  On May17, 2022, the Secretary of Labor filed his petition proposing a total penaltyof $120,909.00 for the 25 citations contained within these two dockets. *See*Pet. for Assess. of Civil Pen. (hereinafter “Pet.”). 

 

On August 19, 2022, theSecretary submitted proposed settlement agreements corresponding to these twodockets. In the filings, the Secretary proposed a settlement that would reducethe penalty to $15,424.00, representing****a savings for the mineoperator of $105,485.00** and **a penalty reduction of 87 percent.** The proposal sought to modify or vacate sixteen citations, but the filingsonly provided modest factual justification for **one** proposedmodification. Accordingly, the Court notified the parties that their settlementcould not be approved as submitted and gave the parties additional time torenegotiate the settlement or provide more information in support. 

 

The Secretary filed anamended settlement motion for Docket No. WEST 2022-0267 on September 13, 2022. Anamended motion for Docket No. WEST 2022-0268 followed two days later. TheSecretary’s amended filings provide some additional context for a few of themodifications proposed. Notably, the Secretary has declined to present anyfacts in support of his decision to vacate citations as part of thissettlement. 

 

 

**II.           ****TheProposed Settlement is not Fair, Reasonable, Appropriate Under the Facts, orProtective of the Public Interest**

 

The Court now turns tothe terms of the agreement. The terms are analyzed based on the facts submittedin the settlement motions as amended by the parties. Consideration is given tothe monetary and nonmonetary terms of the settlement, and to the criteriaestablished in section 110(i) of the Mine Act, such as negligence and gravity. Onbalance, I find that the modified penalty proposed by the Secretary is unfair, unreasonable,inappropriate under the facts, and unprotective of the public interest. I findalso that the settlement motion does not adequately address the six penaltycriteria. I therefore deny the Secretary’s motion. 

 

 

Although I find most ofthe proposed modifications unacceptable, in the interest of time and length, I onlydiscuss a few here as examples of the Secretary’s unsupported reasoning and faultyexplanation. I also note that, in these cases, some proposed modifications weremade by an MSHA supervisor after the penalties were contested, and others madeby an MSHA conference and litigation representative. This Court hasjurisdiction to review any changes proposed by the Secretary after theRespondent contests the original penalties. *See* 30 U.S.C. § 820(k); *BlackBeauty*, 34 FMSHRC at 1860-61. 

 

**A.   ****The Proposed Vacatur of CitationsNos. 9656006, 9656007, and 9656008**

 

Citation No. 9656006alleges a violation of 30 C.F.R. § 57.14206(b) as follows:

 

The Caterpillar retractable boomfork lift is not being maintained in a safe manner. The Caterpillar machine wasleft unattended and running while the operator of the equipment was conductingwork activities alongside the #17 Mono conveyor belt line, overhead on thecatwalk. The forks of the machine had been elevated with materials loaded onthe forks and the forks protruding over top of the handrailing and not securedfrom motion rather vertically or forward, further into the belt line area. Thiscondition will result in fatal crushing injuries.

 

Pet. at 55. The inspectordetermined that it was reasonably likely that the violation would result in aminer’s injury, and that the injury could reasonably be expected to be fatal. Hemarked the citation as S&S and as moderate negligence. The Secretaryassessed a civil penalty of $2,376.00 for this citation. 

 

Citation No. 9656007alleges a violation of 30 C.F.R. § 57.14211(c) as follows:

 

A raised component must be securedto prevent accidental lowering when persons are working on or around mobileequipment and are exposed to the hazard of accidental lowering of the component.The Caterpillar retractable boom fork lift and forks are not secured fromaccidental motion where a miner was working in the immediate area of themachine. This condition will result in serious and fatal injuries to workerswho are exposed to unsecured machine parts.

 

Pet. at 56. Here again, theinspector determined that injury was reasonably likely, and that the injurycould reasonably be expected to be fatal. He found that the operator was highlynegligent for this citation and designated it as S&S. The Secretaryassessed a $7,890.00 penalty associated with this citation. 

 

Citation No. 9656008alleges a violation of 30 C.F.R. § 57.11001 as follows:

 

The mine operator has failed toensure and maintain the safe access alongside the Mono #17 conveyor belt. Aminer was conducting work activities around an unsecured machine componentwhile having to exit the conveyor walkway by passing the unsecured machinecomponent. This condition will result in fatal injuries as a result ofhazardous access locations. Standard 57.11001 was cited 27 times in two yearsat mine 4800152 (23 to the operator, 4 to a contractor).

 

Pet. at 58. The inspector foundthat it was reasonably likely that this condition would cause an injury thatcould reasonably be expected to be fatal. He found the mine operator highlynegligent for allowing this condition to persist, and he marked the conduct asS&S. For this citation, the Secretary assessed a penalty of $10,034.00. 

 

The Secretary now seeksto vacate all three citations. For Citations Nos. 9656007 and 9656008, theSecretary explains that each citation is being vacated because “[t]he violationwas cited and corrected with Citation No. 9656006.”[2] Pet. at 57. According to theSecretary, the factual basis underlying all three citations is so similar thatthe dangerous conditions can be addressed and corrected by a single citation:Citation No. 9656006. However, in the next breath, the Secretary vacatesCitation No. 9656006 without explanation. 

 

Consequently, thesethree citations—originally marked as S&S and assessed for a total of$20,300.00—would disappear under the proposed settlement agreement, resultingin a huge reduction in the overall penalty. The parties have not offered any factsto justify these changes. Presumably facts are omitted because the Secretarybelieves that he has unfettered discretion to vacate a citation, as discussedmore fully below.  While I agree that he has discretion, it is not unlimited,and may be reviewed if it appears that he has abused that discretion. Theparties fail to demonstrate how it would be fair, reasonable, or appropriate tovacate three citations when the inspector witnessed a forklift left running, unattended,and unsecured with a suspended load. Moreover, the parties make no effort toshow how vacatur of these citations protects the public interest. Based on therecord before me, I can only conclude that this settlement offends the publicinterest by eviscerating the deterrent effect of the original penalties. *See**Black Beauty*, 34 FMSHRC at 1866 (recognizing deterrence as an importantpublic interest to consider when reviewing settlements).

 

The Secretary arguesthat he has prosecutorial discretion to vacate citations, citing *RBKConstruction, Inc.,*15 FMSHRC 2099 (Oct. 1993). Given that he has submittedno facts in support of the proposed vacatur, the Secretary likely believes thathis discretion is plenary. He is mistaken for three reasons. 

 

First, even if *RBKConstruction* were applicable, it would not preclude review of theSecretary’s proposed vacatur.  In that case, the Commission held only that theSecretary “has the authority to vacate citations,” not that his authority isunreviewable. *Id*. at 2101. Any passing mention in other cases to theSecretary’s “unreviewable” discretion to vacate citations is mere dictum anddoes not bind this Court. 

 

Second, *RBKConstruction* is easily distinguishable from this case. The holding in *RBKConstruction* is limited to the narrow circumstance where the Secretaryvacates all of a docket’s citations and moves for final dismissal of theproceedings. The Secretary in that case conceded that section 110(k) allowsjudges to scrutinize “the settlements of penalties.” *Id*. at 2101. Thiscase involves the settlement of penalties, and the analogy to *RBKConstruction* therefore falters. 

 

Finally, there isreason to doubt the wisdom of the decision in *RBK Construction*. Thedecision rests upon a false equivalence drawn between the Mine Act and theOccupational Safety and Health Act, 29 U.S.C. § 651 et seq (“OSH Act”). TheSupreme Court found in *Cuyahoga Valley Railway Company v. United TransportationUnion* that the Secretary of Labor has “unreviewable discretion to withdrawa citation charging an employer with violating the [OSH Act].” 474 U.S. 3, 7-8(1985). The Commission took notice of this Supreme Court case. In *RBKConstruction*, the Commission held, “[b]ased on that decision,” that theSecretary should similarly have discretion to vacate citations issued under theMine Act. 15 FMSHRC at 2101 (citing *Cuyahoga Valley*, 474 U.S. at 7-8). TheCommission failed to note, however, that the Mine Act and the OSH Act differ inone key aspect. The Mine Act requires that judges review settlements andcompromised penalties proposed by the Secretary. *See* 30 U.S.C. § 820(k).The OSH Act contains no such requirement. Rather, judges presiding over OSH Actcases merely sign off on settlements without questioning their contents. TheCommission’s decision in *RBK Construction* fails to account for thisnuanced yet crucial difference between the two laws that would make itreasonable to review vacaturs as part of settlement under the Mine Act when itis not reasonable to do so under the OSH Act.  

 

My statutory duty toreview settlement terms cannot be neglected. The Commission has never suggestedthat a judge’s duty to scrutinize a settlement is diminished if the settlement happensto include vacated citations. On the contrary: the Commission has affirmed thatthe Secretary must submit facts to support any proposed settlement. *BlackBeauty*, 34 FMSHRC at 1863 n.5; *Am. Coal Co.*, 38 FMSHRC at 1984-85. Thisrequirement persists even if the settlement involves vacated citations. *GreenbrierMinerals, LLC*, 43 FMSHRC 509 (Nov. 2021) (ALJ).

 

Certainly, theSecretary should be afforded some latitude in enforcement decisions. He hasaccess to more information about the underlying facts in this case, and he hasunique expertise that helps him set agency priorities and predict thelikelihood of success at trial. Agency resources are scarce, and the Secretarydeserves deference in determining how to allocate those resources. 

 

To whatever extent theSecretary has discretion in such matters, he has abused it here. He premisedthe vacatur of two citations on the existence of a third, and then he vacatedthe third citation without explanation. This procedure is arbitrary,self-contradictory, and contrary to law. Even when specifically asked toprovide more information justifying the vacatur, the Secretary refused tosubmit *any* facts that support the proposed modifications. This Court ischarged with the “duty to consider the sufficiency of facts submitted insupport of a settlement,” and the complete lack of factual basis for theseproposed modifications cannot be ignored. *SolarSources Mining*, 41 FMSHRC 594, 601 (Sept. 2019).  

 

 

A settlement agreement cannotbe appropriate under the facts if no facts are put forth. A modification cannotbe found reasonable if the parties offer no reason for the change. And theSecretary’s effort to avoid scrutiny is a breach of the public policy underlyingsection 110(k) of the Mine Act: to shine light upon settlements formerlyshrouded in darkness. I therefore cannot approve of these proposed changes. 

 

**B.   ****The Proposed Modifications toCitation No. 9656018**

 

Citation No. 9656018alleges a violation of 30 C.F.R. § 57.9300(b) as follows: 

 

The mine operator has failed toprovide berms or guardrails where roll over hazardous conditions exist. Theground area between R5 and the Bi-Carb building shows evidence of vehicular andequipment travel with an area that is not protected and provides a roll overhazardous condition. This condition will expose miners to serious injuriesresulting in fatalities. Standard 57.9300(b) was cited 2 times in two years atmine 4800152 (1 to the operator, 1 to a contractor).

 

Pet. at 83. The regulation requiresthe creation and maintenance of roadway berms of “at least mid-axle height ofthe largest self-propelled mobile equipment which usually travels the roadway.”30 C.F.R. § 57.9300(b). The inspector found that the alleged failure to installberms was reasonably likely to cause injury, and that the injury couldreasonably be expected to be fatal. He marked the citation as high negligenceand as S&S, and the Secretary assessed a penalty of $7,890.00. 

 

The Secretary now movesto whittle this citation down to nearly nothing. He seeks to modify thelikelihood of injury from “Reasonably Likely” to “Unlikely,” to reduce thegravity from “Fatal” to “Lost Workdays or Restricted Duty,” and to cut thenegligence from “High” to “Moderate.” The Secretary also proposes the removalof the S&S designation. Altogether, the proposed changes would reduce theassessed penalty from $7,890.00 to $145.00. 

 

The Secretary offersfour statements in support of the proposed changes. The Secretary notes that“most of the vehicle travel is in pick-ups or light duty vehicles.”[3] Pet. at 85.  He adds that a“vehicle traveling off the road in this area would most likely cause a vehicleto become stuck in the mud” rather than roll over. Pet. at 85.  Further, theSecretary asserts that the “operator requires the use of seat belts in allvehicles.” Pet. at 85. Finally, the Secretary avers that the missing berm “wasnot an obvious condition” and that “workplace examinations should have caughtthis.” Pet. at 85. 

 

The proposedmodifications are deficient for three reasons. First, the Secretary submits nofacts that support reducing the negligence level. A berm is required on thisroad by law, and the absence of a berm is a clear indication of noncompliancefor the operator. The inspector indicates that there is travel on the road, andtherefore a missing berm would be obvious to anyone at the mine. It seems,based on the facts in the record, that the operator should have known about theviolative condition. The inspector found that the operator was highly negligentfor this reason. The Secretary has not presented any reason to reduce thatnegligence finding. His assertion that the lack of a berm “was not an obviouscondition” is a legal conclusion unsupported by facts in the record, and hisclaim that “workplace examinations should have caught this” does nothing tomitigate the negligence finding. If anything, it supports the inspector’s viewof negligence because the person responsible to conduct workplace examinationwas either not doing his job or simply decided not to mention the issue. Thereis not a single, concrete fact in the record that would support a reduction innegligence. The proposed modification is therefore not reasonable orappropriate under the facts. 

 

Second, the penaltyreduction is drastic and unwarranted. The alleged violation—as described in thecitation and the facts submitted in support of settlement—is serious, and aserious violation cannot be deterred by a trivial penalty of $145.00. Even ifthe negligence and S&S modifications were proper, the penalty reductionwould not be. This Court is not bound by the Secretary’s Part 100 regulationsfor penalty determination, and the Part 100 penalty does not address theseriousness of this violation. Accordingly, it cannot be approved. For furtherdiscussion of the penalty, see *infra*, Section II.D. 

 

Third, the Secretaryproposes the removal of the S&S designation. However, the violation allegedhere is serious. The failure to install berms can lead to potentially fatalvehicle rollover. Unfortunately, miners continue to die in such fatal accidentsyear after year.[4]Nevertheless, the Secretary elects to strip this citation of its S&Sstatus. This is not an isolated event: there has been an alarming uptick in thenumber of settlement proposals seeking removal of S&S designations fromserious violations. This troubling trend chips away at the meaningful standardsthat protect miner safety, contravening the cornerstone public interestembedded in the Mine Act. *See* 30 U.S.C. § 801(a). In proposal afterproposal, the Secretary completely ignores the meaning of S&S as set forthin *Newtown Energy*, 38 FMSHRC 2033 (Aug. 2016), as well as its forebearsand its progeny. Instead, the Secretary misstates the law and thereforeattempts to settle a citation in violation of the binding precedent. 

 

Here, the facts offeredin support of the S&S removal are unconvincing. Even if taken as true, thefacts submitted little to mitigate the severity of harm. The road still lacks aberm, and miners traveling down the road in trucks face the risk of driving offthe edge and causing a rollover. Although the negligence and penalty reductionsalone would form sufficient basis for denial of this proposed modification, Ialso find that removal of the S&S designation is improper. 

 

**C.   ****The Proposed Modifications toCitation No. 9656019**

 

Citation No. 9656019alleges a violation of 30 C.F.R. § 57.20003(a) as follows: 

 

The passageway leading from the topstairwell landing at the north side of the Sesqui cooling tower is not beingkept in a clean and orderly fashion. The top landing has various materialspiled up behind the opening direction of the door, restricting travel leadingup and down into a steep stairwell location. This condition will expose minersto slips, trips, and falls resulting in fatal occurrences from elevatedheights. Standard 57.20003(a) was cited 72 times in two years at mine 4800152(68 to the operator, 4 to a contractor).

 

Pet. at 86. The cited housekeepingregulation requires passageways to be kept clean and orderly. 30 C.F.R. §57.20003(a). The inspector found that the alleged violation was reasonablylikely to cause injury, and that the injury could reasonably be expected to befatal. He marked the citation as high negligence and as S&S, and theSecretary assessed a penalty of $16,213.00. 

 

Here too, the Secretaryproposes major changes. He seeks to reduce the likelihood of injury from“Reasonably Likely” to “Unlikely,” to cut the gravity from “Fatal” to “LostWorkdays or Restricted Duty,” and to modify the negligence from “High” to“Moderate.” Finally, he seeks to remove the S&S designation. The proposedchanges would reduce the penalty assessed from $16,213.00 to $245.00. In otherwords, the operator would pay **one cent on the dollar** for thiscitation after settlement. 

 

The Secretary hassubmitted some information in order to justify this change. He submits that the“materials that were a housekeeping issue were not in the direct route oftravel” so that “[t]ripping and falling down the stairway would be unlikely.” Pet.at 88. He adds that “if a fall were to happen, the stairway was provided withhand rails to prevent serious injury.” Pet. at 88. Finally, the Secretary aversthat “the materials addressed in the housekeeping were placed to the side, [but]a workplace examination should have addressed this condition. The mine operatorshould be on notice, the standard has been cited 70+ times at this miningoperation.” Pet. at 88. 

 

I am aware that somecurrent case law from the Commission would like Judges to accept, wholesale,everything the Secretary states in a settlement motion. However, Congress hasrequired Judges to use some experience and judgement indetermining if a settlement motion is sufficient. I simply cannot turn my backon something that is obviously contrary to the Act and its purpose. 

 

Based on my judgmentand experience, I take issue with three modifications proposed in thesettlement motion: the negligence, the penalty, and the S&S designation. First,the Secretary fails to present facts justifying a reduction in the negligencefinding. In truth, the submitted facts may even aggravate the negligencefinding, since the Secretary agrees that the mine operator should be on noticeafter more than **seventy** citations for similar housekeeping issuesin the previous two years alone. The fact that “workplace examination shouldhave addressed this condition” does little, if anything, to mitigate thenegligence since the operator is also responsible for training its miners toconduct proper workplace examinations—and that clearly has not happened giventhe frequency of citations related to fall hazards at this mine. 

 

 

Second, the penaltyreduction is dramatic and unsupported by facts. Allowing the operator to payone cent on the dollar for this violation undermines the important publicinterest of encouraging operator compliance with mine safety regulations. Thatis especially true here, where the operator has a history of noncompliance withthis regulation. For further discussion of the penalty, see *infra*,Section II.D.

 

Third, the Secretaryagain removes the S&S designation with only limited factual basis. Thesubmitted facts do little to negate the notion that permitting “variousmaterials” to be “piled up behind the opening direction of the door,restricting travel leading up and down into a steep stairwell location” wouldbe S&S. Pet. at 86. Importantly, one of the key facts presented by theSecretary is that the stairs had handrails that could prevent falls, but theS&S analysis precludes consideration of redundant safety measures. *SeeCumberland Coal Res., LP v. FMSHRC*, 717 F.3d 1020, 1028-29 (D.C. Cir. 2013).The sole relevant fact remaining—that the material was not in the direct routeof travel—does not address the fact that material was piled up behind the doorin the opening direction. There is therefore very little information indicatingwhy the alleged violation would not be S&S. 

 

As support for the S&S changes,the Secretary insists that he has “discretion to modify the significant andsubstantial designation” based on two Commission cases: *AmericanAggregates of Michigan, Inc*., 42 FMSHRC 570, 576-79 (Aug. 2020), and *MechanicsvilleConcrete, Inc*., 18 FMSHRC 877, 879-80 (June 1996). Am. Mot. to ApproveSettlement (WEST 2022-0268) at 6. But the Secretary’sreliance on these cases is misplaced. The Commission in *Mechanicsville*held that an ALJ may not add an S&S designation on her owninitiative, and the Commissioners merely reiterated this holding in *AmericanAggregates*. By contrast, the present case involves the Secretary’s proposalto remove an S&S designation. The case citations are irrelevanthere.

 

The Secretary’s claimof discretion regarding S&S is erroneous, and his decision to remove theS&S designation here ignores decades of history and precedent. While Iwould deny the proposal based on negligence and penalty alone, I also note thedeficiency of the proposed S&S changes. 

 

**D.   ****The Proposed Penalty Reduction**

 

The parties propose adramatic penalty reduction. If the settlement were approved, the total penaltyfor the two dockets would be slashed from $120,909.00 to just $15,424.00. Ifind that the proposed penalty reduction is unfair and contrary to the publicinterest.

 

Beforepassage of the Mine Act, mine operators were governed by the Coal Act and itsregulations. Operators and regulators negotiated settlements that never sawpublic scrutiny, and negotiations often led to large penalty reductions foroperators. Senator Richard Schweiker (R-Pennsylvania) described thedysfunction: 

 

[Mine operators] get slapped [with]a fine of $100 or $200 or $300. They accumulate a whole lot of them and go backin court and ultimately settle them at 10 or 20 cents on the dollar... So whatyou actually assess them at and what they settle for are worlds apart and ispart of the frustration of dealing with the act.

 

123Cong. Rec. S10,277, *reprinted in*Senate Subcomm. on Labor, Comm. on Human Res., *Legislative History of the**FederalMine Safety and Health Act of 1977*,**at 1072-73 (1978) (“*Legis.Hist.*”). This system failed to deter hazardous workplace conduct, anddevastating mine accidents continued to occur. Members of Congress knew thatpaltry settlement amounts would not be sufficient incentive for mine operators toadopt safe and compliant practices. As Senator Wendell Ford (D-Kentucky) said: 

 

Thesettlement of penalty assessments in the past, often for as little as 30 centson the dollar, has been a disgrace, as well as a serious obstacle to effectiveuse of the civil penalty mechanism to encourage compliance. 

** **

123 Cong. Rec. S10,209, *reprinted in Legis. Hist.*, at 922. There was bipartisan consensusthat compromised settlements had become an impediment toensuring miner safety.

 

Congress decided toreshape the settlement regime with the Mine Act.Congress identified the compromise of assessed penalties in settlement as aproblem with prior legislation, and it crafted section 110(k) of the Mine Actas a solution. By subjecting settlements to judicial review, Congress intendedto avoid “the unwarranted lowering of penalties as a result of off-the-recordnegotiations” and to ensure that “the public interest is adequately protectedbefore approval of any reduction in penalties.” S. Rep. No. 95-181, at 45(1977), *reprinted in Legis. Hist.*, at 633. 

 

It is therefore my dutyto review compromised penalties. Motions proposing large penaltyreductions—where the operator would pay only “10 or 20” or “30 cents on thedollar”—demand particular attention because they are the very settlements thatCongress saw as an obstacle to regulatory compliance. 123 Cong. Rec. S10,277,S10,209, *reprinted in Legis. Hist.*, at 1072-73, 922. The parties mustpresent concrete facts, review the six penalty criteria, and demonstrate howthe proposed settlement will be fair and protective of the public interest. 

 

Here,the public interest is not adequately protected. Encouraging compliance withsafety regulations was a key public interest motivating Congress to pass theMine Act, and it has been a key public interest considered by the Commissionwhen scrutinizing settlements. *Black Beauty*, 34 FMSHRC at 1866. I failto see how this settlement could promote compliance. The facts presented heresimply cannot support such a finding. Rather, the proposed settlement wouldundermine compliance with the Act and its regulations, by taking a meaningfulcivil penalty assessment and gutting it on a threadbare factualbasis.

 

The Commission and itsjudges “assess all civil penalties provided in [the Mine] Act.” **30 U.S.C. § 820(i). It is therefore *my* duty, not the Secretary’s, toassess the penalty in this case. Even if there are some legitimate facts in themotion, that does not automatically suggest that I must reduce the penaltyamount to the degree suggested by the Secretary. While Part 100 is useful inassessing penalties and sometimes is useful in reducing penalties insettlement, that is not always the case. Even with modifications, violationsmay be serious and may require a higher penalty to deter the mine operator fromfurther violations, and to protect the interest of the public—not to mentionthe miners who constantly risk their health and safety only to see the agencyprotecting them sending a message that safety is not important. Instead ofrelying on the Secretary’s part 100 regulations, I look closely at the sixpenalty criteria.  

 

Parties are notprecluded from reaching settlements with large penalty reductions. Suchsettlements are approved routinely by the Commission and its judges. However, largepenalty reductions are more likely to undercut thedeterrent purposes of the Mine Act, and parties must present a substantialfactual basis showing how the settlement preserves the public interest. Theparties have not done so here. *See supra*, sections II.A-C. Accordingly, I find that this settlement is neither fair nor in thepublic interest.

 

**E.   ****Non-monetary aspects of thesettlement**

 

I have also consideredthe non-monetary aspects of this settlement motion. Just as in all othersettlement motions, the Secretary includes the rote recitation that he “hasevaluated the enforcement value of the compromise and is maximizing hisprosecutorial impact in settling this case on appropriate terms.” Am. Mot. toApp. Settlement (WEST 2022-0267) at 3. He says that resolution of this casethrough settlement is of “significant enforcement value to the Secretary” inpart because the citations, as modified, are “preserved for future enforcementactions and are not subject to potential vacatur or further downward adjustmentafter a hearing.” Am. Mot. to App. Settlement (WEST 2022-0267) at 3.

 

Iaccord significant weight to the value of avoiding litigation and its attendantuncertainty. However, the Secretary’s boilerplate statements do little more tohelp me understand how this particular settlement is fair, reasonable,appropriate under the facts, or protective of the public interest. Many of the present citations arevacated and therefore are not preserved for future enforcement actions. Manyothers have been stripped of their S&S designations, which would alsoaffect future enforcement. The Secretary offers no explanation of how thesechanges would provide non-monetary benefits for him or for the public. 

 

Furthermore,“[t]he Commission recognized that significant non-monetary value flows fromaccepting the citations as written.” *Solar Sources*, 41 FMSHRC at 601(internal citations omitted). Here, the Secretary has elected to modify orvacate sixteen of the present citations and thus forfeit much of thenon-monetary value that would flow from preserving them as written. 

 

In sum,there are some non-monetary benefits to this settlement, but the Secretary’sgeneralized statements do not convince me that the particular changes proposedhere meet the *AmCoal* standard. 

 

 

 

 

 

**III.         ****CONCLUSION**

 

These citations allegeserious safety issues: raised loads left unsecured and unattended, roadsunprotected by berms, and passageways with significant obstacles. Many of thesecitations are repeat violations, and the mine operator has been cited dozens oftimes for similar issues in the past. And yet the Secretary proposes asettlement that would allow the operator to pay a compromised penalty of justthirteen cents on the dollar, would reduce the negligence findings, and wouldscrub away the S&S designations from many of the citations. The supportoffered for the proposed modifications is paltry and often has nothing to dowith the relevant penalty criteria.

 

The Secretary’sproposal would transform the civil penalty into a trivial fee accepted by theoperator at the cost of doing business. This contradicts the purpose behind theMine Act—to meaningfully deter dangerous conduct. The proposed settlement willnot keep miners safe and, if the words in section 110(k) of the Mine Act are tobear any meaning at all, it must be denied. 

 

WHEREFORE,the Amended Motions to Approve Settlement are hereby **DENIED**. 

 

 

 

 

/s/Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

 

 

 

 

 

Distribution:(Electronic and Certified Mail)

 

Bruce H.Jakubauskas, CLR, U.S. Department of Labor, Mine Safety and HealthAdministration, Thornhill Industrial Park, 178 Thorn Hill Road, Suite 100,Warrendale, PA 15086, 

jakubauskas.bruce@dol.gov

 

DonnaPryor, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202, Donna.Pryor@huschblackwell.com

----

[1] A settlement for Docket No. WEST2022-0197 was approved by this Court on August 16, 2022. The originalassessment was $41,855.00, and the settlement amount was $9,338.00. 

[2] This is thelanguage used in association with Citation No. 9656007. The language employedin association with Citation No. 9656008 is slightly different but used to thesame effect. The only other language offered in support for vacating CitationNo. 9656008 is that the citation was “duplicative” of Citation No. 9656006. Am.Mot. to Approve Settlement (WEST 2022-0267) 4. 

[3] In his motion,the Secretary frames it slightly differently: “Traffic in the affected area waslimited to light duty vehicles.” Am. Mot. to Approve Settlement (WEST2022-0268) at 5.

[4]*See, e.g*.,Mine Safety& Health Administration, U.S. Dep’t of Labor, Report of Investigation: Surface (Sand andGravel) Fatal Machinery Accident–March 5, 2021, https://www.msha.gov/data-reports/fatality-reports/2021/march-5-2021-fatality/final-report; Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface (Crushed and Broken Limestone)Fatal Powered Haulage Accident–Sept. 16, 2013,https://www.msha.gov/sites/default/files/Data_Reports/Fatals/Metal/2013/ftl13m11.pdf.