Secretary of Labor v. County Line Stone Co., Inc., Consol Pennsylvania Coal Company, LLC, and Ramaco Resources, LLC

Plain-English summary

These three consolidated cases involved settlements that proposed vacating contested citations while resolving other citations in the same agreements. The Secretary claimed unreviewable discretion to vacate the citations and declined to assure the ALJ that the proposed vacaturs were independent of the other settlement terms. Applying its recent Crimson Oak decision, the Commission held that section 110(k) authorizes judges to review citation vacaturs offered as part of a settlement. It explained that the Mine Act requires Commission approval of contested-penalty settlements and provides standards for reviewing whether they protect the public interest. The Commission affirmed the settlement denials and remanded the cases, allowing the parties to submit more information, different terms, or both.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.20011, 56.12018, 77.516, and 75.370(a)(1)
• Outcome: The three settlement denials were affirmed, and the cases were remanded.
• Key point: A proposed citation vacatur is reviewable when it is a term of a settlement resolving contested penalties.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

:

v.
: Docket No. YORK 2022-0003

:

COUNTY
LINE STONE CO., INC. :

:

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

:

v.
: Docket No. PENN 2021-0108

:

CONSOL
PENNSYLVANIA COAL :

COMPANY
LLC :

:

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

:

v.
: Docket No. WEVA 2022-0260

:

RAMACO
RESOURCES, LLC :

BEFORE: Jordan, Chair; Baker
and Marvit, Commissioners

DECISION

BY: THE COMMISSION

These
consolidated cases arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2018) (“Mine Act”). The cases are before the
Commission on interlocutory review for our consideration of whether section
110(k) of the Mine Act authorizes a Commission Judge to review the Secretary of
Labor’s decision to vacate a citation in the context of a settlement, when the
vacatur is contingent upon the resolution of other citations.[1]

The Commission recently
affirmed that the Mine Act provides a Commission Judge with the authority to
review a proposal to vacate a contested citation in a settlement agreement. Crimson
Oak Grove Res, LLC, 46 FMSHRC 593 (Aug. 30, 2024). We determined that the
Mine Act clearly authorizes a Judge to review proposed settlement agreements
which contain an agreement to vacate a contested citation. Accordingly, for the
reasons described herein, these cases are remanded to the Judge for further
proceedings consistent with this decision and our decision in Crimson Oak.[2]

I.

Factual and Procedural Background

In each of these matters, the
Secretary filed a motion to approve settlement proposing to vacate at least one
of the contested citations, citing RBK Construction, Inc., 15 FMSHRC
2099 (Oct. 1993).[3]
In consideration of the motions, the Judge asked if the Secretary’s
representative could attest that the proposal to vacate any citation was
independent from, and not contingent upon, the compromise or settlement of
other citations. The Secretary did not provide the requested assurance. The
Secretary instead filed motions for certification of interlocutory review,
requesting that the Judge certify the question of whether the Secretary has the
unreviewable discretion to vacate a contested citation. The Judge denied the
motions for interlocutory review as well as the motions to approve settlement. Thereafter,
the Secretary filed a petition for interlocutory review directly with the
Commission.

On
August 5, 2022, the Commission granted interlocutory review of the Judge’s
denial orders and consolidated these captioned proceedings.[4]
The Judge’s orders are before us now in consideration of the question of his
authority to review proposed settlements under the Mine Act.

The
pertinent settlement terms presented in each motion are as follows.

A.
County Line Stone Co., Inc.,
YORK 2022-0003

The Secretary’s motion to
approve settlement in County Line Stone includes a proposal to vacate two
of the five citations at issue, reducing the total originally proposed civil
penalty from $625 to $375 ($125 civil penalty per citation). The Secretary now proposes
to vacate Citation No. 9663313, issued for an alleged violation of 30 C.F.R. § 56.20011,
which requires barricades or warning signs in areas where there are safety
hazards. In addition, the Secretary proposes to vacate Citation No. 9663308, issued
for an alleged violation of 30 C.F.R. § 56.12018, which requires labeling of
power switches. The operator agrees to pay the penalties for the three
remaining citations.

B.
Consol Pennsylvania Coal
Co., PENN 2021-0108

The Secretary’s motion to approve settlement in Consol
Pennsylvania includes a

proposal
to vacate two of the seven citations at issue. The Secretary proposes vacating Citation
Nos. 7033996 and 7033997, which were issued for alleged electrical wiring
defects in violation of 30 C.F.R. § 77.516. The operator agrees to accept the
other five contested citations with some modifications. In total the parties
propose to reduce the original proposed penalty of $1,730 to $636.

C.
Ramaco Resources, LLC, WEVA
2022-0260

The Secretary’s motion to
approve settlement in Ramaco Resources includes the proposal to vacate one
of the seven citations at issue. The Secretary proposes to vacate Citation No.
9562673 and its $10,868 civil penalty without additional factual support or
explanation. The citation alleges that the operator was not following the
mine’s approved ventilation plan in violation of the requirements in 30 C.F.R.
§ 75.370(a)(1). The citation states:

The approved ventilation plan is not being followed
along the bleeder entries that is used to access the 50 psi seals at the top
end of the #2 Mains panel. The roof in the two bleeder entries inby cross cut
32 has severely deteriorated preventing the weekly examiner from traveling the
area safely. The ribs bolts have rolled out in the center of the entry and the
mine roof is not sound. The last examination that was conducted was on 12-13-21
of the bleeder and 5 psi seal area. This condition could cause serious injury
to the examiner traveling through this area.

Standard 75.370(a)(1) was cited 7 times in two years
at mine 4609495 (7 to the operator, 0 to a contractor).

The
parties agree to additional reductions in proposed civil penalties and other
modifications for many of the other six citations at issue. The parties agree
to settle the original total proposed civil penalty of $35,346 for $6,464.

II.

Disposition

The Secretary argues that she
has the unreviewable prosecutorial discretion to vacate contested citations and
that section 110(k) of the Mine Act does not provide the Commission the
authority to review the Secretary’s vacatur decisions.[5]

The Commission refuted these
same arguments in Crimson Oak, holding that the Secretary’s position is
“clearly inconsistent with section 110(k) of the Mine Act.” 46 FMSHRC at 604. For
reasons stated more fully in that decision, sections 110(k) and 110(i) of the
Mine Act, 30 U.S.C. § § 820(k) and 820(i), circumscribe the Secretary’s
enforcement discretion and supply a meaningful standard to review motions to
approve proposed settlements of citations and civil penalties contested before
the Commission.

Section 110(k) of the Mine
Act, 30 U.S.C. § 820(k), provides that:

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. No penalty assessment which has
become a final order of the Commission shall be compromised, mitigated, or
settled except with the approval of the court.

Section
110(k) specifically “directs the Commission and its judges to protect the
public interest by ensuring that all settlements of contested penalties are
consistent with the Mine Act’s objectives.” Crimson Oak, 46 FMSHRC at
599 (citing Knox County Stone Co., 3 FMSHRC 2478, 2479 (Nov. 1981)).

The Commission has recognized
that “although Congress gave the Secretary most of the enforcement powers under
the Act, it expressly chose to give to the Commission the authority to assess
penalties and approve settlements – powers that usually are given to an
enforcement agency.” The American Coal Co., 38 FMSHRC 1972, 1979 (Aug.
2016) (“AmCoal I”). Under the Mine Act, all contested penalties
ultimately become part of a final decision of the Commission.[6]
30 U.S.C. § 823(d).

Commission Procedural Rule
31, 29 C.F.R. § 2700.31(b)(1), specifies that motions to approve settlement
shall require, for each violation at issue, “the amount of the penalty proposed
by the Secretary, the amount of the penalty agreed to in settlement and facts
in support of the penalty agreed to by the parties.”[7]
The decision whether to grant a settlement motion is left “to the ‘sound
discretion’ of the Commission and its judges.” Crimson Oak, 46 FMSHRC at
599 (citing Madison Branch Mgmt., 17 FMSHRC 859, 864 (June 1995)).

In
claiming unreviewable discretion to vacate a contested citation, in the context
of a settlement agreement, the Secretary relies, inter alia, upon Cuyahoga
Valley Ry. Co., v. United Transp. Union, 474 U.S. 3 (1985) and RBK
Construction Inc., 15 FMSHRC 2099 (Oct. 1993).

In Crimson
Oak, the Commission demonstrated why neither of those two decisions concern
the Commission’s authority to review a settlement agreement. Crimson Oak,
46 FMSHRC at 601-02. In Cuyahoga Valley, the
Supreme Court held that the Secretary’s power to issue citations pursuant to
the Occupational Health and Safety Act of 1970 (“OSH Act”) includes the power
to withdraw the citations. However, the Federal Mine Safety and Health Review
Commission unlike its OSH Act counterpart has been assigned the
authority and the responsibility to review settlements. The OSH Act lacks any
provision that is analogous to section 110(k). Id. at 601. Thus, the
cases currently before us are clearly distinguishable.

The Secretary’s reliance on RBK Construction is also misplaced. In RBK
Construction, the Federal Mine Safety and Health Review Commission found that
the Secretary had the authority to vacate citations presented in a motion to
dismiss, relying on Cuyahoga Valley. Similar to Cuyahoga Valley, in
RBK Construction, the Secretary vacated the citations after determining
that a different regulatory agency had jurisdiction over the operator; in that
case OSHA.[8]
15 FMSHRC at 2099. Notably, the vacated citations were not vacated as
part of an agreement to settle the case, contingent upon the resolution of
other citations.

In Crimson Oak, the
Commission rejected the Secretary’s attempt to extend her authority to vacate
citations to situations in which the proposal to vacate is presented as a
settlement term. The Commission held that the Secretary does not have
unreviewable discretion to settle cases by vacating citations under the Mine
Act. Specifically, the Commission stated:

While there is a general presumption of
unreviewability of decisions not to enforce, Congress may withdraw an agency’s
discretion over such decisions. In Heckler v. Chaney, the Supreme Court
recognized that the presumption of unreviewability may be overcome if a statute
“has indicated [Congress’s] intent to circumscribe agency enforcement
discretion, and has provided meaningful standards for defining the limits of
that discretion . . . .” 470 U.S. 821, 834 (1985).

In the settlement context, section 110(k) provides an
exception to the general rule of unreviewability. That provision expressly
curtails the Secretary’s authority to exercise a basic power of prosecutorial
discretion: the power to settle a case. As stated in AmCoal I, 38 FMSHRC
at 1980, “section 110(k) is an explicit expression of Congressional
authorization that rebuts any presumption of unreviewability.” Indeed, the
Secretary “has acknowledged that the [Heckler] presumption is rebutted by the
existence [of] section 110(k).” Id. at 1980 n.10, citing AmCoal I,
Sec’y Reply Br. at 4.

Crimson
Oak, 46 FMSHRC at 599-600.

Furthermore, despite the
Secretary’s argument to the contrary, the Mine Act provides a “meaningful
standard” for the review of a motion to approve settlement. Id. at 600 (“the
Commission’s parameters of review are set out in section 110(i), the Act’s
legislative history, and the Commission’s Procedural Rules.”). To summarize, section
110(i) of the Mine Act sets forth six factors for the Commission to consider in
assessing penalty amounts.[9]
Id. (citing AmCoal I, 38 FMSHRC at 1981). “In addition, the
Commission has interpreted Section 110(k) to require the Judge to determine
whether the proposed settlement is fair, reasonable, appropriate under the
facts, and protects the public interest.” Id. (citing AmCoal I,
38 FMSHRC at 1976). The Commission requires that the information contained
within the motion to be “sufficient to establish that the penalty reduction
does, in fact, protect the public interest.” Black Beauty, 34 FMSHRC at 1862.

III.

Conclusion

Accordingly,
we affirm the Judge’s orders denying the motions to approve settlement. We
reiterate that a Commission Judge has the authority to review motions to
approve settlement, including instances in which there is a proposal to vacate
a citation.

These captioned cases are
remanded to the Judge for further proceedings consistent with this decision, as
well as our decision in Crimson Oak. The parties are invited to resubmit
motions to approve settlement before the Judge with additional information or
different terms, if not both.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe
Z. Marvit, Commissioner

Distribution:

Emily Toler-Scott, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate Solicitor,

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

[email protected]

Norman C. Ridley, CLR

U.S. Department of Labor,
MSHA

Thorn Hill Industrial Park

178 Thorn Hill Road, Suite
100

Warrendale, PA 15086

[email protected]

Douglas Sciotto, CLR

U.S. Department of Labor,
MSHA

631 Excel Drive, Suite 100

Mt. Pleasant, PA 15666

[email protected]

Chris A. Weaver, CLR

U.S. Department of Labor,
MSHA

604 Cheat Road

Morgantown, WV 26508

[email protected]

Paul T. Sharlow, Esq.

Sharlow Law Firm, P.C.

P.O. Box 641

Jamesville, NY 13078

[email protected]

Craig Aaron

CONSOL Energy Inc.,

10000 CONSOL Energy Drive,
Suite 100

Canonsburg, PA 15317

[email protected]

Jonathan R. Ellis, Esq.

Steptoe & Johnson PLLC

Chase Tower, Seventeenth
Floor

P.O. Box 1588

Charleston, WV 25326

[email protected]

Colton C. Parsons, Esq.

Steptoe & Johnson PLLC

Chase Tower, Seventeenth
Floor

P.O. Box 1588

Charleston, WV 25326

[email protected]

Administrative Law Judge
Michael G. Young

Office of the Chief
Administrative Law Judge

Federal Mine Safety &
Health Review Commission

1331 Pennsylvania Ave. N.W.,
Suite 520N

Washington, DC 20004-1710

[email protected]

Chief Administrative Law
Judge Glynn Voisin

Office of the Chief
Administrative Law Judge

Federal Mine Safety &
Health Review Commission

1331 Pennsylvania Ave. N.W.,
Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA
22202-5450

[email protected]

[1]
Commission Procedural Rule 76 provides that “the
Commission, by a majority vote . . . 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).

[2]
On September 10, 2024, the Secretary of Labor appealed
the Commission’s decision in Crimson Oak to the United States Court of
Appeals for the District of Columbia Circuit. On October 22, 2024, the
Secretary filed an unopposed motion with the Commission seeking to hold these
captioned cases in abeyance pending a decision from the D.C. Circuit in Crimson
Oak. After considering the Secretary’s motion and the arguments therein, the
motion for stay is hereby denied.

[3]
Sec’y’s Mot., No. YORK 2022-0003 at 3; Sec’y’s
Mot., No. PENN-2021-0008 at 5; Sec’y’s Mot., No. WEVA 2022-0260 at 5.

[4]
The cases were consolidated pursuant to our
authority under Commission Procedural Rule 12, 29 C.F.R. § 2700.12.

[5]
The Secretary filed a brief in this case prior
to our issuance of Crimson Oak. The operators did not file briefs.

[6]
The Mine Act’s legislative history notes that when
investigating the then recent catastrophic mine disasters and associated
regulatory failures, the Senate Committee discovered that the “compromising of
the amounts of penalties actually paid” had reduced “the effectiveness of the
civil penalty as an enforcement tool.” S. Rep. No. 95-181, at 44 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 632 (1978). The
Senate Report states that by enacting section 110(k) “the Committee intends to
assure that the abuses involved in the unwarranted lowering of penalties as a
result of off-the-record negotiations are avoided. It is intended that the
Commission and the Courts will assure that the public interest is adequately
protected before approval of any reduction in penalties.” Id. at 44-45; see
Black Beauty, 34 FMSHRC 1856, 1862 (Aug. 2012)
(Congress assigned the Commission the responsibility to review the parties’
agreements to settle contested penalties “[i]n order to ensure penalties serve
as an effective enforcement tool, prevent abuse, and [protect] the
public interest.”).

[7]
The requirement to provide factual support in
the settlement proposal has been largely unchanged since the inception of the
Commission’s procedural rules. See 44 Fed. Reg. 38,226, 38,230 (June 29,
1979).

[8]
The Secretary provides no explanation for
her decision to vacate any of the contested citations in the subject
motions to approve settlement. Notably, in Cuyahoga Valley the Secretary
vacated the OSHA citations only after she determined that the operator was
under the jurisdiction of the Federal Railway Administration instead.

[9]
Section 110(i), 30 U.S.C. § 820(i), provides
that:

In assessing civil monetary penalties, the Commission
shall consider the operator’s history of previous violations, the
appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.