Secretary of Labor v. Genesis Alkali, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Genesis Alkali operated a large Wyoming trona mine where two dockets covered 25 citations involving unsecured raised loads, missing berms, obstructed passageways, and other alleged hazards. The parties proposed reducing the combined penalties from $120,909 to $15,424, vacating several citations, lowering negligence and gravity findings, and removing significant-and-substantial designations. Judge Margaret Miller denied approval because many changes had little or no factual support, including a proposal that treated two forklift citations as duplicative of a third citation and then vacated that third citation without explanation. She also found that the proposed berm and housekeeping reductions did not address the inspector's findings or the operator's repeated similar violations, and that a penalty of about 13 cents on the dollar would undermine deterrence. The Commission later affirmed the settlement denials and remanded the cases.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.14206(b), 57.14211(c), 57.11001, 57.9300(b), and 57.20003(a); 30 U.S.C. § 820(k)
• Outcome: The amended settlement motions were denied; the Commission later affirmed those denials and remanded the cases.
• Subsequent review: The Commission reviewed the ruling in west-2022-0189-commission.
• Key point: Citation vacaturs and major penalty reductions made as part of a settlement require concrete facts that permit meaningful Commission review.

Full text (FMSHRC public release)

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,

[email protected]

Donna
Pryor, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202, [email protected]

[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 .