**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.

 

CRIMSON  OAK GROVE RESOURCES

  LLC,

                 Respondent                                                                 |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket  No. SE 2021-0112

    A.C.  No. 01-00851-532087

 

 

 

    Mine:  Oak Grove Mine          |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**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 three citations issued pursuant to Section 104(a) and 104(g)(1)of the Mine Act. On September 27, 2021, the Secretary submitted a motion todismiss civil penalty proceeding. The motion proposed vacating one citation,while leaving the other two undisturbed and reducing the total penalty from $1,154.00to $1,029.00. *See* S. Mot. to Dismiss Civ. Penalty Proc. at 1 (Sept. 27,2021). Because the motion appears to vacate one contested citation in returnfor agreement to pay the others, 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 2–3 (Oct. 6, 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

 

Wm. Allen McGilton, Assistant Director ofSafety-Assessments, American Consolidated Natural Resources, Inc., amcgilton@coalsource.com

 

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

 

 

Attachments:

 

AppendixA: Order Denying Motion to Approve Settlement, Docket No. SE 2021-0112 (Oct. 6,2021)

 

AppendixB: Order Staying Proceedings, Docket No. SE 2021-0112 (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 LAKE 2021-0145, 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 9493935.”S. Mot. at 1.