Secretary of Labor v. Bluestone Oil Corporation

Plain-English summary

A judge denied a proposed settlement because the Secretary did not provide factual support for removing the significant and substantial designations from two citations. The judge certified the denial for interlocutory review. The Commission granted review to decide whether the Secretary has unreviewable discretion to remove those designations without Commission approval under section 110(k). It set a 30-day schedule for the Secretary's opening brief and a later operator brief.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(k); 29 C.F.R. § 2700.76(a)
• Outcome: Interlocutory review was granted on the Secretary's authority to remove significant and substantial designations in settlement.
• Key point: The Commission agreed to decide whether section 110(k) permits review of an unsupported proposal to remove significant and substantial designations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR :

MINE SAFETY AND HEALTH : Docket No. WEVA 2022-0176

ADMINISTRATION (MSHA) : A.C. No. 46-09222-548471

:

v. : Docket No. WEVA 2022-0350

: A.C. No. 46-09222-548471

BLUESTONE OIL CORPORATION :

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY THE COMMISSION:

This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018), is before us upon a Commission Administrative Law Judge’s October 31, 2022, certification of his order denying the Secretary of Labor’s motion to approve settlement. See 29 C.F.R. § 2700.76(a)(1)(i). The Judge denied the motion because he concluded that the Secretary had failed to provide factual support for the proposed removal of two citations’ “significant and substantial” (“S&S”) designations.

Commission Procedural Rule 76(a) provides that the Commission “may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that “[i]nterlocutory review by the Commission shall not be a matter of right but of the sound discretion of the Commission.” 29 C.F.R. § 2700.76(a).

Upon consideration of the Judge’s certification, we hereby grant interlocutory review of the Judge’s order denying approval of the settlement and the issue of whether the Secretary has unreviewable discretion to remove an S&S designation from a contested citation without the Commission’s approval under section 110(k) of the Mine Act, 30 U.S.C. § 820(k).[1]

The Secretary shall file an opening brief with the Commission within 30 days of this order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the Secretary’s brief.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution (email):

Mohamed Seifeldein, Esq.

Office of the Solicitor

U.S. Department of Labor, Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor, Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor, Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Christopher D. Pence, Esq.

Hardy Pence PLLC

10 Hale Street, 4th Floor

PO Box 2548

Charleston WV 25329

[email protected]

Wm. Scott Wickline, Esq.

Hardy Pence PLLC

10 Hale Street, 4th Floor

PO Box 2548

Charleston WV 25329

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue NW, Suite 520N

Washington DC 20004-1710

[email protected]

Administrative Law Judge Michael G. Young

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue NW, Suite 520N

Washington DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

[1] As the Judge recognized in his October 31 order, the same controlling question of law is currently on review before the Commission in Knight Hawk Coal, LLC, Docket No. LAKE 2021-0160.