Secretary of Labor v. The American Coal Company (Commission decision, June 15, 2018)

Plain-English summary

The Commission had twice divided two-to-two on American Coal's proposed settlement, which effectively denied approval and led the operator to seek federal court review. The court held the appeal in abeyance while the parties submitted an amended settlement motion to the Commission. The amended motion supplied explanations for deleting a flagrant designation, reducing gravity and the assessed penalty, avoiding litigation of certain legal issues, and accounting for the closure of the operator's mines. All four Commissioners then approved the settlement.

Decision snapshot

• Cited authority: None
• Outcome: The amended settlement agreement was approved by the full Commission.
• Key point: Additional substantive justification for citation and penalty compromises resolved the concerns that had produced two earlier tie votes.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF
LABOR,                             :

MINE SAFETY AND
HEALTH                    :

ADMINISTRATION
(MSHA)                       :

:        Docket No. LAKE 2009-35

v.                                              
 :

:

THE AMERICAN
COAL COMPANY           :

BEFORE: Althen, Acting
Chairman; Jordan, Young, and Cohen, Commissioners

ORDER

BY
THE COMMISSION:

This
civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and is presently before the Commission a second time on review. After briefing had begun, the Secretary of Labor filed a motion to settle the case pursuant to a proposed settlement agreement he had reached with the operator, The American Coal Company (“AmCoal”). In an order dated March 5, 2018, two Commissioners voted to grant the motion and two voted to deny, which thereby denied the motion in effect. 40 FMSHRC ___ (Mar. 2018).

AmCoal petitioned the Commission for
reconsideration and requested that the motion for settlement be granted. In an order dated March 27, 2018, two Commissioners voted to grant the petition and two voted to deny, again thereby denying the motion for settlement in effect. AmCoal thereupon petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Commission’s two split decisions. American Coal Co. v. FMSHRC , No. 18-1090 (docketed Apr. 2, 2018).

AmCoal subsequently requested that the
court hold that proceeding in abeyance while the parties further pursued settlement before the Commission. By order dated May 15, 2018, the court held the case in abeyance. On May 18, 2018, the Secretary and AmCoal filed an Amended Joint Motion to Approve Settlement Agreement with the Commission.

Upon consideration of the amended
motion, the settlement agreement is approved. The basis for Acting Chairman Althen’s and Commissioner Young’s approval is set forth in their

opinion
in favor of approving the original settlement motion. Slip op. at 3-7. Commissioners Jordan and Cohen now join in granting the motion for settlement. [1]

/s/ William I.
Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G.
Young

Michael G. Young, Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

[1] The Amended
Joint Motion to Approve Settlement Agreement provides substantive explanations supporting the Secretary’s decision to compromise the issues of one violation at issue in this matter by deleting the flagrant designation, reducing the level of gravity, and substantially reducing the assessed penalty. 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 a 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.