**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

 

 
| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                 Petitioner

 

                        v.

 

KNIGHT  HAWK COAL, LLC,

                 Respondent                                                               |   |   | CIVIL  PENALTY PROCEEDING

 

 Docket  No. LAKE 2021-0160

    A.C.  No. 11-03147-536309

 

 

    Mine:  Prairie Eagle-Underground        |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

** **

**ORDER CERTIFYING CASE FORINTERLOCUTORY REVIEW**

** **

 

Before:  JudgeYoung

 

Thismatter is before me upon a petition for assessment of civil penalty filed bythe Secretary of Labor (“Secretary”), pursuant to section 105(d) of the FederalMine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). TheSecretary filed a Motion to Approve Settlement setting forth the factual basesfor the proposed modifications. When I disapproved the settlement, theSecretary filed amended motions, which I disapproved based on my concerns withthe removal of a “Significant and Substantial” (“S&S”) designation.

 

TheSecretary now seeks interlocutory review of this proceeding, pursuant toCommission Procedural Rule 76, 29 C.F.R. § 2700.76. I agree with the Secretarythat this interlocutory ruling involves a controlling question of law, and thatimmediate review will materially advance the final disposition of thisproceeding. I certify for review this question: whether the Secretary hasunreviewable discretion to remove a “Significant and Substantial” (“S&S”) designationfrom a contested citation without the Commission’s approval.

 

Thiscase was assigned to me on August 18, 2021. This docket includes threecitations issued pursuant to Section 104(a) of the Mine Act. The Secretarysubmitted a motion to approve settlement on August 24, 2021, in which the Secretaryproposed removing S&S designations from two citations: Citation Nos.9198165 and 9198038. The third citation remained unaltered. Additionally, themotion requested a penalty reduction from $7,960.00 to $4,590.00. After reviewand careful consideration, I denied approval of this settlement viaemail—specifying that for Citation Nos. 9198165 and 9198038, I neededclarification of the operator’s arguments in support of why the facts andcircumstances surrounding the conditions were not reasonably likely tocontribute to an event with the potential to cause significant injuries. Theemail provided possible resolution—a detailed explanation—rather thanCommission review.

 

The Secretary chose to submitsubsequent motions to approve settlement on September 3, September 13, andSeptember 14, 2021. Although I determined that the amended explanation for theremoval of the S&S designation from Citation No. 9198165 was satisfactory,I was not 

provided with sufficient factualsupport to approve such removal from Citation No. 9198038.[1]As such, my approval of the settlement wouldunfairly compromise the public interest by conceding an important issue withoutreasonable justification for doing so. Therefore, I issued an order onSeptember 30, 2021, denying the motion to approve settlement (“Denial Order”).[2]In order to resolve the question of law before us, the Secretarysubmitted a motion for certification on November 24, 2021.

 

**I.         ****TheStandard for Approval of Proposed Settlements**

 

TheSecretary relies on the Commission’s decisions in *Mechanicsville Concrete,Inc.* and *American Aggregates of Michigan, Inc.*as support for his contention that he need only depend on hisdiscretion when vacating S&S designations. S. Mot. ¶ 6(C)(2); *Am.Aggregates of Mich., Inc.*, 42 FMSHRC 570, 576–79 (Aug. 2020) (citing *MechanicsvilleConcrete, Inc.*, 18 FMSHRC 877, 879–89 (June 1996)). However, *Mechanicsville*and *American Aggregates*do notconfer sole discretion upon the Secretary or limit the evaluation of theCommission under section 110(k) of the Mine Act. The Secretary made aS&S designation and now intends to modify it. He cannot rely solely ondiscretion, but must provide sufficient factual support. *See* 29 C.F.R.§ 2700.31(b)(1) (requiring “facts in support of the penalty agreed to bythe parties”); *see also Am. Coal Co.*, 38 FMSHRC 1972, 1981 (Aug. 2016)(“*AmCoal I*”); *Black Beauty Coal Co.*, 34 FMSHRC 1856, 1856 (Aug.2012).

 

Theunreviewable discretion asserted by the Secretary is contrary to the Mine Act’srequirement that the Commission approve all settlements. *See* 29 C.F.R. §2700.31(g) (“Any order by the Judge approving a settlement shall set forth thereasons for approval and shall be supported by the record.”). While theSecretary retains prosecutorial discretion at the citation and petition stage,Commission Judges have the authority to review proposed compromises. 30 C.F.R.§ 2700.31(b) (“A motion to approve a penalty settlement shall include *foreach violation* . . . facts in support of the penalty agreedto by the parties.”) (emphasis added). Rule 31 enables Judges to reviewproposed penalties under section 110(k) of the Mine Act, which provides, “No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).

 

The Secretary argued in *AmCoal I* that enforcement agencies aregenerally presumed to have unreviewable discretion to settle enforcementactions, and that section 110(k) does not provide meaningful or substantivestandards sufficient to limit the Secretary’s prosecutorial discretion asapplied to settlement agreements. 38 FMSHRC at 1974–75 (citing as support the“Heckler Test” established in *Heckler v. Chaney*, 470 U.S. 821, 834(1985)). The Commission has expressly rejected, and the text and structure ofthe Mine Act refutes, this argument. *Id.* at 1979–81. As the Commissionheld in *AmCoal I*, Congress charged the Commission with theadministration of section 110(k), which explicitly grants the Commission theauthority to approve settlements and limits the Secretary’s authority to reducecontested penalties. As the Commission noted, the assessment of civil penaltiesunder the Mine Act has not been committed to the Secretary by law, but wasinstead expressly and clearly delegated to the Commission. *Id.*TheCommission has employed a meaningful abuse of discretion standard—discussed indetail below—under which the Secretary is required to provide facts in supportof settlement. This requirement may only be deemed inappropriate if it isunreasonable or inconsistent with the Mine Act—and it is not. 

 

A.   The Secretary'scited authority does not confer the discretion asserted. 

 

TheSecretary’s reliance on *Mechanicsville*is misplaced. *Mechanicsville*isirrelevant to this proceeding because it**relies upon the Commission’sdecision in *RBK Construction, Inc.,*15 FMSHRC 2099, 2101 (Oct.1993), which in turn relied upon the U.S. Supreme Court’s decision in *CuyahogaValley Railway Co. v. United Transportation Union*, 474 U.S. 3, 6–7 (1985).**In contrast to the case at hand, *RBK Construction*did not involve asettlement, and the Court in*Cuyahoga Valley*grounded its decision onthe statutory scheme of the Occupational Safety and Health Act, which—unlikesection 110(k) of the Mine Act—does not require the Occupational Safety andHealth Review Commission to approve settlements. 

 

Evenif the cited authority was relevant to a case which has been contested beforethe Commission under section 105(a), an important distinction between thisproceeding and *Mechanicsville*renders it inapplicable. The present caseinvolves a proposal to *eliminate* an S&S designation, while theCommission in *Mechanicsville* held that an ALJ may not *add* anS&S designation on his or her own initiative. *Mechanicsville Concrete,Inc.*, 18 FMSHRC at 880, 882. These important distinctions between this caseand *Mechanicsville* render this authority irrelevant to this case.

 

The Secretary’s reliance on *AmericanAggregates* is also misplaced. In this case, the Commission vacated aJudge’s decision to deny a settlement motion because the Judge ignoredinformation that was relevant to the reasonableness of the settlement under the*AmCoal* criteria. 42 FMSHRC at 577, 581. This information includedseveral facts that were relevant to, and plausibly supported, a decrease ingravity and negligence, and the removal of the S&S designation. TheCommission only reversed the Judge’s denial of the settlement, and the includedremoval of the S&S designation, because of the Judge’s failure to considerthe significant factual support provided. 

 

B.   TheSecretary must provide substantive, relevant facts in support of modifyingviolations in a motion to approve settlement. 

 

TheCommission has consistently required its judges to consider facts that are bothsubstantive and relevant to proposed modifications before a motion to approvesettlement may be granted. The facts provided must enable a plausible inferencethat the violation at issue can be justly compromised. In the case at hand, thefacts provided must permit an inference that facts *might* be established athearing that could result in the violation in question not being affirmed asS&S.[3]

 

1.    *TheCommission has consistently required Judges to consider substantive, relevantfacts in support of settlement.*

 

Nodefinition of the term “relevant” has been provided by the Commission to date. However,Black’s Law Dictionary defines the term “relevant” as “[l]ogically connectedand tending to prove or disprove a matter in issue; having appreciableprobative value — that is, rationally tending to persuade people of theprobability or possibility of some alleged fact.” *See Relevant*, Black’s Law Dictionary (10th ed. 2014). The Federal Rules of Evidence defines“relevant” as a contention that “has any tendency to make a fact more or lessprobable than it would be without the evidence and the fact is of consequencein determining the action.” Fed. R. Evid. § 401.

 

            In*Solar Sources Mining, LLC*, the Commission approved a denied settlement basedon a Judge’s failure to consider the facts submitted in support of settlement. 41FMSHRC 594, 605, 606 (Sept. 2019). The Commission held that the Judge erred inconcluding that the parties presented no facts to support settlement, when theparties “actually presented relevant facts,” including the non-applicability ofthe standard. *See* 41 FMSHRC at 601.[4]

 

In addition to relevant facts, theCommission has consistently recognized thatJudges must considersubstantive evidence, defined as “[e]videnceoffered to help establish a fact at issue,”in order to approve or deny settlement motions. *Substantive Evidence*, Black’s Law Dictionary (10th ed. 2014).In *AmCoal I,*theCommission rejected the Secretary’s “boilerplate referencing” of “professionaljudgment” and enforcement value “in lieu of the substantive factual supporttraditionally provided to justify a penalty reduction.” *AmCoal I*, 38FMSHRC at 1973–74. Another *Am. Coal Co.* case was denied settlement by asplit Commission because of a lack of facts, and was approved by the disapprovingCommissioners only upon submission of additional facts. *See* 40 FMSHRC 765,766 n.1 (June 2018); Am. Joint Mot. Approve Settlement Agreement, Docket No.LAKE 2009-0035, at 8–10 (May 18, 2018).

 

TheCommission discussed the proper substantive evidence requirement for modifyingindividual citations in *Hopedale Mining*, 42 FMSHRC 589 (Aug. 2020). In *Hopedale*,the Commission held that a Judge’s denial of a settlement constitutes an abuseof discretion when the agreed-upon facts supplied by the parties satisfy thestandard for approval established in *AmCoal I*. Although judges need not engagein fact-finding, weighing conflicting evidence, or making credibilitydeterminations, the majority stressed that this holding does not restrictjudges by limiting their ability to “probe gaps or inconsistencies in theexplanation offered in support of a settlement motion.” *Id.*at 595; *seealso**Solar Sources Mining LLC*, 41 FMSHRC at 602 (stating that Judges are “expectedto . . . determine whether the facts support the penalty agreed to by theparties”). 

 

TheCommission determined that the provided facts in *Hopedale*supported thepenalty reduction agreed to in the settlement, and that “[t]he rejection inthis case was contrary to stipulated facts, mischaracterized the operator’scompliance history, and failed to give weight to the considerable non-monetaryvalue preserved by the settlement.” *Id.*at 602. For citations where theSecretary proposed a reduction in negligence, he provided respondentcontentions demonstrating that the “violative conditions were not obvious orreadily known to the operator.” *Id.* at 598. For other violationschallenging gravity, the Secretary provided contentions showing possiblecompliance (i.e., no violation) or the reduced likelihood of hazard because theequipment was found to be functioning better than noted. *Id.* at 597–98. Thesefacts were all *substantive* because they were offered to dispute a factat issue. These substantive facts, as described, were also *relevant* tothe individual modifications proposed, a principle that should also apply tothe removal of S&S designations. This case thus differs from *HopedaleMining*, in that it does not involve the rejection of substantive, relevantfacts. Rather, the parties have not provided me with sufficient facts to serveas the basis for an evaluation under *AmCoal I*.[5]

 

2.    *TheSecretary misreads the cited authorities.*

 

a.    Although theSecretary cites *Am. Coal Co.*, this case requires the submission ofrelevant facts. 

 

TheSecretary states in the Motion to Approve Settlement that he “has consideredthe deterrent value of the penalty and obtaining a final resolution to thismatter.” As support for this statement, the Secretary cites the followingexcerpt: 

 

The Amended [motion] providessubstantive explanations supporting the Secretary’s decision to compromise theissues of one violation at issue . . . . In addition, the Secretary has setforth reasons why it would not be in the public interest to litigate certainlegal issues in the context of this case. Moreover, the amended motion explainsthat the operator’s mines have closed since the citations issued, reducing thedeterrent value of the penalty. Commissioners Jordan and Cohen note that *thesejustifications were absent in the initial settlement motion*. Upon review ofthe *amended motion*, Commissioners Jordan and Cohen agree to grant themotion and approve the settlement.

 

*Am.Coal Co.*, 40FMSHRC at 766 n.1 (emphasis added).

 

TheSecretary asserts that it is sufficient for him to “consider the deterrentvalue” of the penalty. This assertion is based on only a partial understandingof the cited authority. In citing this footnote as support, the Secretaryignores the facts of the case. Importantly, the settlement at issue was onlygranted following the submission of additional facts*. Id.* at 766. AfterAmCoal appealed a remanded decision, the parties submitted a motion to approvesettlement that was denied by the Commission in a 2-2 split. 

 

Assupport for their denial, Commissioners Jordan and Cohen set forth reasons whyapproval would not be in the public interest, including their concerns that (1)it was unclear what AmCoal had agreed to give in exchange for settlement, (2)the Commission did not remand for a gravity reduction where the trier of factalready made a gravity determination, and (3) the settlement was one-sided anddid not help with enforcement of the Mine Act. *Am. Coal Co.*, 40 FMSHRC330, 337–39 (Mar. 2018). 

 

****Commissioners Jordan and Cohenjoined in approving settlement after the parties submitted an amended motionthat included additional factual support. Amended Joint Motion to ApproveSettlement Agreement, Docket No. LAKE 2009-0035, at 8 (May 18, 2018). 

 

Theamended motion included at least three additional substantive facts that weredirectly relevant to the proposed modification, including acknowledgement thatthe operator’s mines had since closed. *Am. Coal Co.*, 40 FMSHRC at 766n.1. This decision, and the footnote cited by the Secretary, do not support thecontention that the Secretary need only consider the deterrent value of apenalty in obtaining a final resolution. The outcome of this case clearly dependedon the submission of substantive, relevant facts. This is the standard I havefollowed in rejecting the settlement. 

 

b.    *AmCoalII*alsorequires the submission of substantive facts. 

 

TheSecretary states that he has evaluated enforcement values and maximized hisprosecutorial impact, citing page 989 of *AmCoal II*. The cited authority requiresthat the facts provided “reflect a mutual position that the parties have agreedis acceptable to them in lieu of the hearing process.” *Am. Coal Co.*, 40FMSHRC 983, 991 (Aug. 2018) (“*AmCoal II*”). The Secretary uses thislanguage to make the overbroad assertion that he need only state that the partiesare in agreement without submitting adequate support. However, the Commission hasconsistently required that the Secretary provide substantive facts, relevant tothe proposed modifications.

 

The standard for Commission evaluation iswhether the proposed settlement is “fair, reasonable, appropriate under thefacts, and protects the public interest.” *AmCoal II*, 40 FMSHRC at 987.[6]The Commission found that in order to effectively apply this standard,Commission Judges must be provided with “sufficient information” upon which tobase their evaluation. *Id.* (quoting *Black Beauty Coal Co.*, 34FMSHRC 1856, 1862 (Aug. 2012)). Specifically, the Commission found that the Judgerequired substantive facts to support proposed penalty reductions. *Id.*at 989 (“[T]he *Judge appropriately determined that the submission ofadditional substantive facts to support the proposed penalty reductions wasnecessary* . . . .”) (emphasis added). 

 

Similar to the *AmCoal* case notedabove, *see supra* Section I.B.2.a., the settlement motion approved by theCommission depended on the submission of new facts that were substantial andrelevant to the modifications—primarily that the mine ceased production twoyears prior, and that the respondent’s other mine also ceased production, factsthat proved a reduced enforcement value. *Am. Coal Co.*, 40 FMSHRC 1380,1388 (Sept. 2018) (ALJ); Joint Mot. Approve Settlement & Dismiss Proc.,Docket No. LAKE 2011-0013, at 2 (Sept. 7, 2018).

 

In this case, the Secretary denies that hemust provide substantive, relevant facts in support of settlement. *AmCoal II*does not support this claim. The Commission requires sufficient facts—*including*nonmonetary assessments regarding enforcement value—upon which Judges can makean appropriate finding. *AmCoal II*, 40 FMSHRC at 991 (“[F]acts requiredby Rule 31 may include a description of an issue on which the parties haveagreed to disagree.”). In the present case, the Secretary has failed to provideany detailed explanation of how the enforcement value of the violation will bemaintained.

 

**II.       ****The factsprovided by the Secretary do not justify removal of the S&S designation.**

** **

A.   The Commissionutilizes an abuse of discretion standard to evaluate the Secretary’senforcement decisions. 

 

Rule31 requires that a settlement motion include facts in support of the penaltyagreed to for “each violation,” and that a Judge’s order set forth reasons forapproval and be supported by the record. 29 C.F.R. § 2700.31(b), (g). The abuseof discretion standard requires the Secretary to provide relevant facts fromwhich a Commission Judge may understand the reasonable conclusions drawn insupport of his decision. *See Prairie State Generating Co.*, 792 F.3d 82,92 (D.C. Cir. 2015); *Knight Hawk Coal, LLC*, 42FMSHRC 435, 445–46 (July 2020). 

 

TheCommission has established that denial or reversal is justified in cases wherethere is no evidence to support the Secretary’s decision. *See Solar SourcesMining, LLC*, 41 FMSHRC at 599 (citing *Shemwell v. Armstrong Coal Co.*,36 FMSHRC 1097, 1101 (May 2014) (“An abuse of discretion may be found wherethere is no evidence to support the Judge’s decision or if the decision isbased on an improper understanding of the law”)); *see also Twentymile CoalCo.*, 27 FMSHRC 260, 278 (Mar. 2005) (Jordan, dissenting) (quoting *MingoLogan Coal Co.*, 19 FMSHRC 246, 249–50 n.5 (Feb. 1997), *aff’d*,133 F.3d 916 (4th Cir. 1998)).

 

Onreview, the D.C. Circuit Court of Appeals has noted that the Commission’s ALJsdetermine, in the first instance, whether the Secretary has beenarbitrary and capricious, abusing his discretion in his decision, and that theCommission’s standard of review is whether substantial evidence supports theJudge’s determination. *See Sec’y of Lab. v. Knight Hawk Coal, LLC*, 991F.3d 1297, 1308 (D.C. Cir. 2021) (citing 30 U.S.C. § 823(d)(2)). Under thearbitrary and capricious standard, the Secretary must “articulate asatisfactory explanation for its action including a ‘rational connectionbetween the facts found and the choice made.’” *Id.* at 1307 (quoting *MotorVehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co.*, 463 U.S.29, 43 (1983) (quoting *Burlington Truck Lines, Inc. v. United States*,371 U.S. 156, 168 (1962))).

 

Thisstandard is deferential to the Secretary, but its grace is not unlimited. Inparticular, the law—statutory law, Court and Commission precedents, and theCommission’s procedural rules—clearly establishes a requirement that theSecretary’s decisions be consistent with the reasoning and assumed factsprovided with a motion to approve settlement. 

 

Congressionalintent, as well as Commission and court precedent, compels a meaningful reviewof all settlements submitted for approval. Section 110(k) of the Mine Actserves to maintain the deterrent effect of violations and penalties, in part bypreventing the Secretary from abusing his authority to settle such violationswithout appropriate justification. *See AmCoal I*, 38 FMSHRC at 1976(citing S. Rep. No. 95-181, at 44, *reprinted in* Senate Subcommittee onLabor, Committee on Human Res., 95th Cong., *Legislative History of theFederal Mine Safety and Health Act of 1977*, at 632–33 (1978)) (“Congressexplained that ‘[b]y 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Commission has acknowledged the importance of section 110(k) in preventingabuse, and it possesses the authority to deny the Secretary’s decisions whenappropriate. This includes when the Secretary declines to provide anexplanation for a settlement decision, or when the facts provided by theSecretary do not reasonably support a settlement decision. *See Black BeautyCoal Co.*, 34 FMSHRC 1856, 1862 (Aug. 2012) (authorizing the Commission toapprove the settlement of contested penalties in section 110(k) “[i]n order toensure penalties serve as an effective enforcement tool, prevent abuse, andpreserve the public interest.”) 

 

Thus,under the governing law, I—as well as the Secretary—must make a rationaldecision governed by the operative facts and the law as it has beeninterpreted. I would abuse my discretion if I approved a settlement that isinconsistent with the facts provided. I have declined to do so.  

 

 

 

B.   Judges musthave sufficient facts from which to plausibly infer that the violation wouldnot meet S&S requirements. 

 

Theabuse of discretion standard requires judges to consider sufficient facts,taken as true, from which they may plausibly infer that proposed modificationsare reasonable. Although the term “plausible” has not yet been defined by theCommission (and has in fact caused confusion amongst judges and scholarsalike), the plausibility standard is evident in Commission precedent. The Commissionhas consistently required consideration of facts relevant to proposedmodifications. *See Knight Hawk Coal, LLC*, 42 FMSHRC at 446 n.22(requiring “some plausible—i.e., not speculative or preconceived—factualbasis.”). 

 

In*Knight Hawk Coal, LLC*, the Commission affirmed a Judge’s decision tovacate the Secretary’s rejection of a ventilation plan because substantialevidence existed in support of the Judge’s conclusion that the plan wasacceptable. 42 FMSHRC at 452. The Commission applied a plausibility standard,agreeing that the Secretary had failed to articulate reasons, “rationallysupported by the facts,” that the ventilation approach did not protect miners. *Id.*The Commission could not condone rejection of a long-used plan based upon an“implausible belief” that harmful conditions might arise from the plan. *Id.*at 446 n.22 (describing such “implausible belief” as an “irrational belief notgrounded on the record evidence”). 

 

TheCommission articulated that the minimum standard requires “some plausible—i.e.,not speculative or preconceived—factual basis for rejecting an operator’sclaim.” *Id.* (“Requiring the Secretary to show his work in this regard ishardly a ‘new’ requirement. Rather, it reflects his fundamental duty under theAct to defend his choices as ‘reasonable,’ at a minimum.”). This should be nodifferent from requiring the Secretary to provide facts in support of a proposedsettlement—i.e., “show[ing] his work”—to support a Judge’s 110(k) review.

 

Thisstandard is also supported by the Commission’s requirement to be guided, whenpracticable, by the Federal Rules of Civil Procedure. *See* 29 C.F.R. §2700.1(b) (“[T]he Commission and its Judges shall be guided so far aspracticable by the [FRCP].”); *see also Jim Walter Res., Inc.*, 15 FMSHRC782, 787 (May 1993). Specifically, the Secretary’s case can be likened to apleading to survive a motion to dismiss for failure to state a claim under Rule12(b)(6). 

 

Black’sLaw Dictionary equates the term “Plausibility Test” to the “Twombly Test,”which requires the following in a pleading to survive a 12(b)(6) motion: “(1)state facts that, taken as true, make a plausible (rather than conceivable)claim, and (2) not rely solely on conclusions of law, which are not entitled tothe same assumption of truth as factual allegations.” *Twombly Test*, Black’s. The Court in *Bell AtlanticCorp v. Twombly* required a FRCP 8 pleading to “possess enough heft to‘sho[w] that the pleader is entitled to relief.’” 550 U.S. 544, 557 (2007). 

 

TheCourt noted that “[a]sking for plausible grounds does not impose a probabilityrequirement at the pleading stage; it simply calls for enough facts to raise areasonable expectation that discovery will reveal evidence of illegalagreement.” *Id.* at 556. Requiring substantive, relevant facts in asettlement motion only requires sufficient facts to “raise a reasonableexpectation” that there was no violation, or that the violation did not meetthe level of gravity or negligence cited.

 

            In*Ashcroft v. Iqbal*, the Supreme Court provided a description of theplausibility requirement, stating that in order to survive a motion to dismiss,“a complaint must contain sufficient factual matter, accepted as true, to‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678(2009) (quoting *Twombly*, 550 U.S. at 570). The Court described facialplausibility as “factual content that allows the court to draw the reasonableinference that the defendant is liable for the misconduct alleged.” *Id.*(citing *Twombly*, 550 U.S. at 556). In relation to a settlement motion,the factual content provided should allow a Commission Judge to draw thereasonable inference that there is no violation, or that the violation does notmeet the level of gravity or negligence cited.

 

The standard of plausibility existsin Commission review of decisions on the merits of a violation. Upon a *primafacie* showing of a violation by the Secretary, a respondent operator mustdemonstrate a “plausible theory based upon any facts in the record to support areasonable inference” that the violation did not occur. *Jim Walter Res.,Inc.*, 28 FMSHRC 983, 988, 989–90 (Dec. 2006) (affirming the Judge’sdecision to uphold a S&S designation because there was substantial evidenceto support the conclusion that the respondent did not show “any plausibletheory” rebutting the Secretary’s case).

 

            Theneed to make a plausible demonstration refuting the existence of a violationcould and should be applied to facts required in a settlement motion. Such arequirement is not contradictory to the Commission’s directives in *AmCoal II*.*See*40 FMSHRC at 991 (ruling that judges must not assignprobative value to some facts). Itmerely requires that the submitted facts, if taken as true, plausiblydemonstrate that there was no violation, or that the violation did not reachthe level of gravity or negligence assigned.

 

C.   The factsprovided by the Secretary cannot support the removal of the S&Sdesignation.

 

AnS&S designation is appropriate if, “based upon the particular factssurrounding the violation, there exists a reasonable likelihood that the hazard[danger to safety or health] contributed to will result in an injury or illnessof a reasonably serious nature.” *Mathies Coal Co.*, 6 FMSHRC 1, 3–4 (Jan.1984) (citing *Cement Div., Nat’l Gypsum Co.*, 3 FMSHRC 822, 825 (Apr.1981)). An S&S determination must be based on thecontinuation of normal mining operations. *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 assuming continuednormal mining operations, absent any assumption of abatement or inference thatthe violative condition will cease.”). 

 

Thefour elements supporting an S&S designation provided in *Mathies* havebeen refined and expressed as follows: (1) an underlying violation of amandatory safety standard; (2) a reasonable likelihood the violation will causethe occurrence of the discrete safety hazard against which the standard isdirected; (3) a reasonable likelihood that the hazard would cause an injury;and (4) a reasonable likelihood that the injury would be of a reasonablyserious nature. *Peabody Midwest Mining, LLC*, 42 FMSHRC 379, 383 (June2020) (integrating the refinement of the second *Mathies* step in *NewtownEnergy, Inc.*). 

 

1.   *The relevant facts provided demonstrate a primafacie showing of a S&S violation.*

 

            The Mine Act and theCommission’s precedents interpreting it compel me to determine whether thesettlement tendered is appropriate to the facts provided to me. Citation No.9198038 arises from an alleged violation of the operator’s roof control plan,which appears to have been discovered after a roof fall occurred. *See* 30C.F.R. § 75.220(a)(1) (requiring operators to develop and follow approved roofcontrol plans); *see also* 30 C.F.R. § 75.202(a) (requiring roof supportto protect miners from hazards related to roof falls). Under the terms of theplan, entry widths are limited to 19 feet. The operator asserts that a variancepermits it to inadvertently mine widths up to 211⁄2 feet wide. In that case, thevariance requires the operator to use *additional* bolts that are one footlonger in between the rows to support the roof in the wider area. 

 

Boththe second and third amended motions state, “Because the area had never beendeemed to be wider than the plan allowed, the additional bolts had not beeninstalled.” This explanation does not provide a sufficient evidentiary basis tosupport removal of an S&S designation. The explanation notes that thecondition was not obvious, had not been noted on prior inspections, and did notpresent visible signs that a roof fall was imminent. 

 

Whilethese facts would support a reduction in negligence, they would not support areduction of the likelihood of injury in an area where a roof fall occurred. Additionally,the operator’s belief that a confluence of factors did not exist has no valueto an assessment of the likelihood of injury from the hazard. 

 

            The limited factsprovided in the motion included an acknowledgment that at least one miner, theexaminer, would work or travel in the area where the fall occurred—an areawhere the Secretary has alleged the roof support was deficient—and a roof fallin fact occurred. During that time, the area was examined at least once everyshift by an examiner. The motion provided no facts from which one might inferthat this miner was not exposed to a possible hazard of serious injury from aroof fall. 

 

            A finding of S&Sfor a violation of an approved roof control plan is supported by Commissionprecedent. *See, e.g.*, *Consol Pa. Coal Co.*, 43 FMSHRC 145, 149(Apr. 2021) (affirming Judge’s determination that roof control plan violationwas S&S); *Halfway, Inc.*, 8 FMSHRC 8, 12–13 (Jan. 1986) (affirmingS&S for failing to comply with roof control plan when miners could haveworked or traveled in areas with inadequately supported roof). Importantly, Ido not find that the cited violation is or must be held to be S&S. I havebeen provided with limited facts, and neither party has waived its right tocontest this issue by providing additional facts or legal authority at hearing.I am thus not substituting my enforcement judgment for that of the Secretary; Iam merely noting that his conclusion that this violation might not be found tobe S&S is entirely inconsistent with the evidence the Secretary himself haschosen to provide.

 

2*.   TheSecretary has provided no facts plausibly supporting the inference that theviolation does not meet any one of the Mathies elements*.

 

*Mathies* Step 1 requires that the Secretaryestablish a violation of a mandatory safety standard. The Respondent’s roofcontrol plan is the functional equivalent of a mandatory safety standard andspecifies the means of compliance with the ground support requirement forunderground mines: “The roof, face and ribs of areas where persons work ortravel shall be supported or otherwise controlled to protect persons fromhazards related to falls of the roof, face or ribs and coal or rock bursts.” 30C.F.R. § 75.202(a). A failure to comply with the provisions of a roof controlplan would satisfy Step 1 of the Commission’s S&S analysis. TheSecretary has provided no facts plausibly supporting an inference thatRespondent was in compliance with the allowed variance.[7]

 

*Mathies* Step 2 requires a reasonablelikelihood that the violation will cause the occurrence of a discrete safetyhazard against which the standard is directed. The fact that a roof fallactually occurred here is dispositive as to the second S&S factor, becauseunintended roof falls in areas where miners work or travel is the focal pointof Section 75.202(a) and the plan developed to ensure the protection of minersfrom such falls. *See Jim Walter Resources, Inc.,*37 FMSHRC 493,495–96 (2015) (noting that the Mine Act strictly requires protection of minersfrom roof falls in areas where miners work or travel). I find that an eventthat has occurred is perforce reasonably likely to have occurred. 

 

            Unlike the secondfactor, the remaining two S&S factors are not conclusively established. However,the settlement motion must provide at least a plausible basis for concludingthat a hearing might result in a finding that there was no S&S violation,either because one of the remaining factors might not be proved or depends onquestionable evidence, or because there may not have been a violation.

 

*Mathies* Step 3 requires a reasonablelikelihood that the hazard would cause an injury. It is accepted that rooffalls may cause injury as miners have died from roof falls. *See, e.g.*, *DoeRun Co.*, 42 FMSHRC 521, 521 (Aug. 2020); *Jim Walter Res., Inc.*, 37FMSHRC at 493. To support removal of a S&S designation, the facts mustallow the plausible inference that occurrence of the hazard would not cause aninjury. The Secretary has provided that only the examiner travels the area andthat exposure to the hazard would only last for a “split second of time,” butthese facts are insufficient for me to plausibly infer than an injury wasunlikely. 

 

Respondentacknowledged that an examiner traveled the area for the entire duration theviolative condition existed. The fact that a roof fall did not occur while theexaminer was traveling there does not negate the likelihood of an injury. Nordoes the fact that the examiner was only exposed once per shift. *See ConsolPa. Coal Co.*, 43 FMSHRC at 149 (finding it sufficient for Step 3 that theinspector determined that miners and an examiner would be exposed to the hazardtwice per shift). Additionally, an unplanned roof fall is an “instantaneousevent,” so the Secretary’s mention of only a split-second exposure fails tonegate the likelihood of injury. 

 

*Mathies*Step 4 requires a reasonable likelihood that the injury would be of areasonably serious nature. An inspector’s conclusion that a possible injury isof a reasonably serious nature has been held sufficient for Step 4. *ConsolPa. Coal Co.*, 43 FMSHRC at 149 (finding it sufficient that the inspectorcharacterized the potential injury as “serious”). Therefore, to support removalof a S&S designation, the facts provided to challenge Step 4 must allow theplausible inference that an injury would not be of a reasonably serious nature.

 

Theinspector characterized the likely injury as “fatal” at the time of citationand petitioned for civil penalty on that finding. Roof and rib falls aresubject to an extensive regulatory regime precisely because of the great dangerof serious injury or death posed by unplanned ground movements in undergroundmines. No facts contended by the Secretary allow a plausible inference to thecontrary—that the injury from a roof fall might not be of a reasonably seriousnature.

 

D.   Applicationof the abuse of discretion standard leaves me no choice but to deny theSecretary’s motion to approve settlement.

 

Havingmade a S&S designation, the Secretary must provide substantial and relevantevidence as support for its removal. My denial of the Secretary’s motion toapprove settlement was specifically based on a lack of sufficient factualsupport available for me to properly consider the settlement under the *AmCoal*factors.

 

TheSecretary must provide me with a plausible basis for the proposed modificationof Citation No. 9198038. The Commission should not condone the removal of acited and petitioned designation based on the implausible conclusion that the violationdid not meet the requirements of an S&S designation. The conclusion towhich the Secretary comes—that the proposed modification is justified by therespondent’s contentions—must be rationally supported by the facts. It is not. Thefacts provided by the Secretary do not allow me to plausibly infer that theviolation did not meet the *Mathies* requirements for a S&Sdesignation. If anything, they support the existence of a S&S violation. 

** **

**III.    ****Certification**

 

            Asettlement would finally resolve this matter without a hearing. I have invitedthe parties to submit additional facts that might permit approval, and they areapparently unable to agree on such facts. Following *Hopedale,*it wouldnot be appropriate for me to proceed to a hearing with this legal question unresolved.Therefore, 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 remove an S&S designation from a 

 

 

 

contestedcitation without the Commission’s approval—and thatimmediate review will materially advance the final disposition of theproceeding.

 

            Thisinterlocutory ruling is hereby **CERTIFIED**.

 

 

 

 

/s/Michael G. Young

Michael G. Young 

Administrative Law Judge

 

 

Distribution(by email):

 

AlexandraJ. Gilewicz, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12thStreet South, Suite 401, Arlington, VA 22202 gilewicz.alexandra.j@dol.gov

 

EmilyToler Scott, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 201 12thStreet South, Suite 401, Arlington, VA 22202 scott.emily.t@dol.gov

 

JohnMiklos, Director of Health and Safety, Knight Hawk Coal, LLC, 500 Cutler-TricoRoad, Perry, IL 62272, johnmiklos@knighthawkcoal.com

 

----

[1]This is a controlling question of law because there isno other defect with the settlement. If I am found to be in error, I willapprove on remand the motion as submitted to me. Otherwise, the case will stillbe before me subject to further action by the Secretary and Respondent.

[2]I incorporate that order here by reference. 

[3]I note that I have not found, and do not find, thatthe violation must be affirmed as S&S. Nor have I required the Secretary toestablish that it is not. I merely note that the limited facts the parties havechosen to provide would preclude a non-S&S finding for this violation. 

[4]CommissionersJordan and Traynor dissented, arguing that the parties failed to meet the *AmCoal*standards because the motion contained insufficient factual support. *See Id.*at 607 (Jordan, Traynor, dissenting).

[5] Thoughthe Commission found that the facts provided in *Hopedale Mining* weresubstantive and relevant to either gravity or negligence modifications, twoCommissioners thought even these facts were insufficient to support themodifications. *See* 42 FMSHRC at 608–09 (Commissioners Jordan andTraynor, arguing in dissent that settlements must provide substantiveexplanations). The dissenting Commissioners asserted that “[t]he Congressionaltransparency mandate has always meant that the Judge’s decision must include asubstantive explanation as to how the penalty reduction submitted for approvalis (or is not) warranted by the facts and legal contentions the parties claimas support for their motion.” *Id.*(citing *Co-Op Mining Co.*, 2FMSHRC 3475, 3475, 3476 (Dec. 1980)**(vacating a settlement with findingof violation where the stipulations demonstrate that a violation did notactually occur)). My decision is consistent with both the majority and thedissent in *Hopedale*and the decision in *Co-Op Mining*.**Allof the opinions rely on the same legal principles requiring settlementdecisions to be consistent with the facts provided, but the dissent in *Hopedale*disagreed that the required quantum of substantive evidence had been met. 

 

[6] While this is a“four factor” analysis, as a practical matter, there is often considerableoverlap between the factors. Thus, a proposed settlement may not be “fair”because it is insufficiently protective of the public interest, or it may notbe “reasonable” because it is inappropriate to the facts provided in support ofthe settlement.

[7]The facts provided would establish a violationof the plan. The motion does not provide even a contention by the operator thatthe entries did not exceed the plan’s limits or that the additional longerbolts permitted by the variance had been employed in the areas cited by theinspector. As noted in the Denial Order, my decision does not prejudiceRespondent’s ability to argue or prove facts contrary to those provided in thesettlement motions.