**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIA AVE.,N.W., SUITE 1400

WASHINGTON, DC20004-1710

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

 

 
| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                 Petitioner

 

                        v.

 

RIVER  CITY STONE-DIV/MATHY

  CONSTRUCTION  CO,

                Respondent                                                                 |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket  No. LAKE 2021-0145

    A.C.  No. 47-03196-534597

 

 

 

    Mine:  Plant #53          |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**ORDER CERTIFYING CASE FORINTERLOCUTORY REVIEW**

 

Before:  JudgeYoung

 

Thiscase is before me on a Petition for the Assessment of Civil Penalty undersection 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),30 U.S.C. § 815(d). I denied a motion to approve settlement of this docket, andfour similarly situated proceedings.[1] The Secretaryseeks interlocutory review of all five proceedings, pursuant to CommissionProcedural Rule 76, 29 C.F.R. § 2700.76.

 

Thisdocket includes two citations issued pursuant to Section 104(a) of the MineAct. On October 6, 2021, the Secretary submitted a motion to dismiss civilpenalty proceeding. The motion proposed vacating one citation, while leaving theother undisturbed and reducing the total penalty from $250.00 to $125.00. *See*S. Mot. to Dismiss Civ. Penalty Proc. at 1 (Oct. 6, 2021). Because the motionappears to vacate one contested citation in return for agreement to pay theother, I treat it as a motion to approve settlement.

 

Thequestion certified for review and my position have been clearly expressed inthe Order Certifying Case for Interlocutory Review for Docket No. WEVA2021-0294 (Appendix C). As in each associated docket, the Secretary chose notto provide information supporting the vacatur of the contested citations orcertify that vacatur was not contingent upon resolution of the remainingcitations. Instead, he invoked unreviewable discretion under *RBKConstruction, Inc.*[2]*See* 15FMSHRC 2099, 2101 (Oct. 1993) (“*RBK*”). I found that *RBK* does notcontrol the resolution of this issue, and that the citations proposed to bevacated have been contested before the Commission and are subject to myapproval. *See* Unpublished Order at 3 (Oct. 8, 2021) (Appendix A).

 

            UnderCommission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that thisinterlocutory ruling involves a controlling question of law—whether theSecretary has unreviewable discretion to vacate a contested citation withoutthe Commission’s approval—and that immediate review will materially advance thefinal disposition of the proceeding.

 

            Forthe reasons stated herein, and in my order certifying interlocutory review inWEVA 2021-0294, this interlocutory ruling is hereby **CERTIFIED**.

 

 

 

 

/s/Michael G. Young

Michael G. Young 

Administrative Law Judge

 

 

Distribution(by email):

 

Emily Toler Scott, Office of the Solicitor, U.S. Dep’t ofLabor, Scott.Emily.T@dol.gov

 

Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’tof Labor, Gilewicz.Alexandra.J@dol.gov

 

Joshua Schultz, Esq., Law Office of Adele L. Abrams, P.C., jschultz@aabramslaw.com

 

 

 

Attachments:

 

AppendixA: Order Denying Motion to Approve Settlement, Docket No. LAKE 2021-0145 (Oct. 8,2021)

 

AppendixB: Order Staying Proceedings, Docket No. LAKE 2021-0145 (Oct. 19, 2021)

 

AppendixC: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294(November 19, 2021)

----

[1] The others are DocketNos. WEVA 2021-0294, YORK 2021-0023, SE 2021-0134, and SE 2021-0112, all ofwhich were similarly stayed pending certification. *See* Unpublished Orderat 1 n.1 (Oct. 19, 2021) (Appendix B).

[2] “In an exerciseof his prosecutorial discretion as previously recognized by the Federal MineSafety and Health Review Commission in *RBK Construction*, 15 FMSHRC 2099(October 1993), the Secretary has decided to vacate Section 104(a) Citation9482296.” S. Mot. at 1.