Secretary of Labor v. American Aggregates of Michigan, Inc.

Plain-English summary

MSHA ordered an inexperienced driller's helper withdrawn because he had not completed all required new-miner training. The parties proposed removing the S&S designation, lowering gravity and negligence, and reducing the penalty from $2,007 to $132 based on his prior OSHA training, partial MSHA training, and similar off-mine work. Judge Thomas P. McCarthy found the admitted lack of task-safety and hazard-reporting instruction inconsistent with removing S&S because the Mine Act expressly treats an untrained miner as a hazard to himself and others. He denied the settlement as unsupported by the facts and public interest, recused from the merits hearing, requested reassignment, and certified the settlement question for interlocutory review. The Commission later granted review in lake-2018-340-commission.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.5(b)(4) and 46.5(b)(7)
• Outcome: The settlement was denied, the judge recused, and the denial was certified for interlocutory review.
• Subsequent review: The Commission granted interlocutory review in lake-2018-340-commission.
• Key point: A large settlement reduction requires factual support, especially when admitted training omissions align with the Mine Act's express untrained-miner hazard finding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9900
/ FAX: 202-434-9949

SECRETARY OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner

v.

AMERICAN AGGREGATES OF

MICHIGAN, INC.

Respondent

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2018-0340

A.C. No. 20-02529-468328

Mine: Ray Road Plant

ORDER ACCEPTING
APPEARANCE, REJECTING SETTLEMENT,

RECUSING
UNDERSIGNED, REQUESTING REASSIGNMENT,

AND CERTIFYING
CASE FOR INTERLOCUTORY REVIEW

Before: Judge McCarthy

This case is before the undersigned upon 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). 
The Secretary of Labor (“Secretary”) submitted a motion to approve settlement
of this matter.  For the reasons that follow, the undersigned declines to
approve the proposed settlement agreement and requests that this matter be
reassigned to another judge for hearing on the merits.  Furthermore, the
undersigned certifies, pursuant to Commission Procedural Rule 76, 29 C.F.R. §
2700.76, that this interlocutory ruling involves a controlling question of law
and that immediate review will materially advance the final disposition of the
proceeding.

I. STATEMENT OF
THE CASE

This matter involves a single alleged violation,
Order 8952500 (“Order”).  The Order was issued on May 17, 2018 pursuant to
Section 104(g)(1) of the Mine Act.  The Order alleges that:

[A miner] – Drill Operator, had not
received the MSHA-required 4-hour new miner training prior to beginning work at
the mine.  [The miner] had no previous mining experience.  The mine operator
was aware of the Part 46 training requirements.  The mine operator must
withdraw [the miner] from the mine until he receives the required training. 
The Federal Mine Safety and Health Act of 1977 states that an untrained miner
is a hazard to himself and to others.

Pet. for Civil Penalty at 11.  The inspector marked the
likelihood of injury as reasonably likely and the expected injury or illness as
fatal.  The inspector listed the violation as significant and substantial
(“S&S”), with one person affected.  The inspector recorded the level of negligence
as high.  The Order was terminated on May 21, 2018, after the miner received requisite
safety training.  

On February 14, 2019, the Secretary submitted a
motion to approve settlement (“Motion”).  The Secretary sought to reduce the
proposed assessment from $2,007.00 to $132.00.  The Secretary also sought to
modify the likelihood of injury from reasonably likely to unlikely, the
severity of injury from fatal to lost workdays or restricted duty, and the level
of negligence from high to moderate, and to remove the S&S designation. Motion
at 2.  In support of these modifications, the Secretary offered the following:

Respondent argued that the “reasonably
likely,” “fatal” and “high” negligence designations are not supported by the
facts.  Respondent asserts that [the miner] was not a driller but was a
Driller’s Helper.  Respondent contends that [the miner] had received, at the
time the order was issued, 19.5 hours of OSHA related classroom training, had
received 4 hours of New Miner Training and had received on-the-job training
working directly with its driller.  Respondent concedes that on the day of the
inspection [the miner] had not received training on all seven subject required
by 30 C.F.R. 46.5 including 46.5(b)(4) 46.5(b)(5), 46.5(b)(6) and 46.5(b)(7),
and the MSHA training that [the miner] had received had not been properly
documented.  Respondent stated that although [the miner] had no previous mining
experience, he did have approximately one month of experience working with its
driller as a Driller’s Helper taking core samples at a non-mine property being
considered for purchased [sic] for future mining.  Respondent avows that [the
miner]’s work off mine property was the exact same work conducted with the same
drill rig the day the withdrawal order was issued. . . .  Applying
the penalty tables found at 30 C.F.R. § 100.3, these modifications result in a
revised assessment of $132.00.

Id . at 3.

After reviewing the proffered basis
for modifying the Order, the undersigned requested clarification on several
portions of the motion that were unclear or unconvincing.  Specifically, the
undersigned stated:

1. The judge is also uncertain how the parties determined the violation was
   not significant and substantial given Respondent admits the miner did not have
   training on “[i]nstruction on the health and safety aspects of the tasks to be
   assigned” (30 C.F.R. § 46.5(b)(4)) and the “rules and procedures for reporting
   hazards” (30 C.F.R. § 46.5(b)(7)), such training is a mandatory safety standard
   under Section 115 of the Mine Act, Section 104(g)(1) expressly requires a
   declaration that the miner is “a hazard to himself and to others,” and the
   Respondent acknowledges that the injury would still potentially result in lost
   workdays or restricted duty.

2. The judge is concerned about the Respondent’s contention that it was “unaware
   that the training the miner received” was not sufficient to satisfy 30 C.F.R.

§ 46.5(b) given that the operator knew or should have known what training was
required under 30 C.F.R. § 46.5 before the miner could begin work, acknowledged
that it failed to properly document the training it asserts it gave him, and
conceded that the miner had not been trained on 30 C.F.R § 46.5(b)(4)-(7) when
the Order was issued.

3. The judge is concerned about the size of the reduction in penalty that
   accompanies the modifications to the Order, especially in light of the concerns
   outlined above.  The reduction ends up being approximately 93-94% of the
   original proposed assessment amount of $2,007.00.

E-mail
from Brendan Porter, Attorney Advisor to Administrative Law Judge Thomas P.
McCarthy, to MSHA Conference and Litigation Representative George F. Schorr
(Feb. 14, 2019, 16:23 PM EST).  Mr. Schorr responded to the requests for
further clarification, as follows:

The Secretary respectfully relies
upon the settlement motion as it was filed.  The Secretary relies on the
requirements of settlement language as set out in the recent decision from the
FMSHRC in American Coal Co ., LAKE 2011-13, FMSHRC August 2, 2018. 
The Secretary asserts that the settlement motion includes a description of the
“fact [sic] on which the parties have agreed to disagree.” American Coal ,
page 9.  Further, the settlement motion demonstrates “the proposed penalty
reduction is fair, reasonable, appropriate under the facts, and protects the
public interest.” Id.

E-mail from George F. Schorr, MSHA Conference and Litigation
Representative, to Brendan Porter (Feb. 21, 2019, 17:17 PM EST) (italics added). 
On February 28, 2019, the undersigned offered the parties one last opportunity
to address the substantive concerns outlined above.  E-mail from Judge Thomas
P. McCarthy to the parties (Feb. 28, 2019, 2:17 PM EST) (italics added).  The
Secretary’s representative again demurred and stated that “[t]he Secretary
respectfully requests the judge reduce to an Order any requests for additional
information or objection to the settlement.”  E-mail from George F.
Schorr, MSHA Conference and Litigation Representative, to Judge Thomas P.
McCarthy (Mar. 1, 2019 9:12 AM EST).

II. LEGAL
PRINCIPLES AND ANALYSIS

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. Sec. 820 (k).  The
legislative history describes the Congressional rationale in great detail.  The
Senate Report states that the “compromising of the amounts of penalties
actually paid” has 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) (“ Legis. Hist. ”).
 The Committee explained that its investigation of the penalty collection
system under the Federal Coal Mine Safety and Health Act of 1969 revealed “that
to a great extent the compromising of assessed penalties [did] not come under
public scrutiny,” and that “[n]egotiations between operators and Conference
Officers of MESA [MSHA's predecessor] are not on the record.”   Id.  To remedy
this problem, Congress explained that “[b]y imposing [the] requirements” of
section 110(k), it “intend[ed] to assure that the abuses involved in the
unwarranted lowering of penalties as a result of off-the-record negotiations
are avoided.”   Id.  (emphasis added).  Congress expressed its “inten[t]
that the Commission and the Courts will assure the public interest is
adequately protected before any reduction in penalties.”   Id.   This
“legislative history cannot be ignored simply because of the passage of time or
because it may be convenient for the Secretary to do so.”  The American Coal
Co. , 38 FMSHRC 1972, 1976 n.5 (Aug. 2016) ( American Coal I ).

Based on the language of section
110(k) and its legislative history, the Commission reaffirmed in Black Beauty
that Congress authorized the Commission to approve the settlement of contested
penalties in section 110(k) “[i]n order to ensure penalties serve as an
effective enforcement tool, prevent abuse, and preserve the public interest.”  34
FMSHRC at 1862 (citations omitted).  To effectuate this Congressional mandate, the
Commission in American Coal I held that the Commission and its Judges must
“consider whether the settlement of a proposed penalty is fair, reasonable,
appropriate under the facts, and protects the public interest.” 38 FMSHRC at 1976.

The Commission has repeatedly
observed that a Judge’s “front line oversight of the settlement process is an
adjudicative function that necessarily involves wide discretion.” Shemwell
v. Armstrong Coal Co. , 36 FMSHRC 1097, 1101 (May 2014) (citations omitted).
 As the Commission also observed in American Coal II:

Judges must have sufficient
information to determine if a settlement of a penalty is fair, reasonable,
appropriate under the facts, and protects the public interest. Moreover, such
information permits a Judge to fulfill the duty of articulating reasons for the
approval [or rejection] so that the process of compromising penalty amounts is
transparent, as Congress intended. A Judge who properly determines that a
settlement motion lacks sufficient information may permissibly request further
facts from the parties. (footnote 6 omitted) See Black Beauty , 34 FMSHRC
at 1863.

American
Coal Co. , 40 FMSHRC 983, 991 (Aug. 2018) ( American Coal II ). [1]

Applying these principles, I find
that the proposed settlement is not reasonable, appropriate under the proffered
facts, or in furtherance of the public interest.  The Secretary seeks to reduce
the proposed penalty assessment from $2,007.00 to $132.00.  This amounts to an
approximate 93.5% reduction in the penalty amount.  While a significant
reduction in the proposed assessment amount is not impermissible as part of a
proposed settlement agreement, the steep reduction invites closer scrutiny of
the facts presented to ensure that the settlement is “fair, reasonable,
appropriate under the facts, and in the public interest,” consistent with
Commission precedent. 

As a threshold matter, the admitted
facts do not support removal of the S&S designation.  The Mine Act
describes an S&S violation as one “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.”  30 U.S.C. § 814(d)(1).  A violation is S&S if,
“based on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.”  Cement Div., Nat’l Gypsum Co .,
3 FMSHRC 822, 825 (Apr. 1981).  The Commission has explained that the
“reasonable likelihood” language in National Gypsum does not require the
violation itself to create a reasonable likelihood of injury; a showing that
the hazard contributed to by the violation can be reasonably likely to result
in an injury is sufficient to affirm an S&S designation.  Musser
Engineering, Inc. , 32 FMSHRC 1257 (Oct. 2010).   

To establish an S&S violation,
the Secretary must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard—that is, a measure of danger to safety—contributed
to by the violation; [2]
(3) a reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.  Mathies Coal Co. , 6 FMSHRC 1, 3-4.
(Jan. 1984). [3]  
The S&S determination should be made assuming “continued normal mining
operations.”  U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).  This evaluation also considers the length of time that the violative
condition existed prior to the citation and the time that it would have existed
if normal mining operations had continued, without any assumptions regarding
abatement.  Elk Run Coal Co. , 27 FMSHRC 899, 905 (Dec. 2005);  U.S.
Steel Mining Co., Inc. , 6 FMSHRC 1573, 1574 (July 1984). [4]  

Section 104(g)(1) of the Mine Act
states that, if a representative of the Secretary finds a miner “who has not
received the requisite safety training as determined under section 115 of this
Act [30 U.S.C. § 825], the Secretary or an authorized representative shall issue
an order under this section which declares such miner to be a hazard to
himself and to others , and requiring that such miner be immediately
withdrawn from the coal or other mine, and be prohibited from entering such
mine until an authorized representative of the Secretary determines that such
miner has received the training required by section 115 of this Act.” 30 U.S.C.
§ 814(g)(1) (emphasis added). 

In the proffered factual basis for
settlement, both parties acknowledge that the miner did not have all of the
mandatory safety training.  The parties agree that on the day of the inspection,
the miner had not received “[i]nstruction on the health and safety aspects of
the tasks to be assigned” (30 C.F.R. § 46.5(b)(4)) and the “rules and
procedures for reporting hazards.” (30 C.F.R. § 46.5(b)(7)).   Such training is
a mandatory safety standard under Section 115 of the Mine Act.  Section
104(g)(1) declares that such an  untrained miner is “a hazard to himself and to
others.”   The parties agree that the injury expected to result from the
untrained miner violation is likely to result in lost workdays or restricted
duty.  Given these undisputed facts and principles of law, the Secretary can
offer no persuasive explanation for why the violation should be modified by
removing the S&S designation, other than the fact that is just more
convenient to make this violation go away. [5]  
Accordingly, I conclude that the Secretary failed to adequately explain why the
modifications to the Order are “appropriate under the facts” within the meaning
of American Coal I.

The Secretary
argues that he is merely required to present facts upon which the parties have
“agreed to disagree” and that the facts need not raise a “legitimate disagreement
that can only be resolved by a hearing.”  American Coal II , 40 FMSHRC at

991.  This is not a situation, however, where the parties have agreed to
disagree.  Rather, the undersigned’s review of the proffered settlement
agreement indicates that the parties have agreed to fundamental, undisputed
facts that would establish an S&S violation: the miner had not received the
required mandatory training, rendering him “a hazard to himself and to others”
according to the express language in the Mine Act, and there is a reasonable
likelihood that the untrained-miner hazard contributed to by the violation will
result in an injury that would result in lost workdays or restricted duty. [6]  

Contrary to the Secretary, American
Coal II does not dictate that the undersigned approve this settlement
agreement.  In fact, that decision counsels toward the opposite conclusion in
fulfillment of my statutory obligations to review settlement agreements to
ensure consistency with Commission precedent and the purposes of the Act.  In American
Coal II , the parties agreed to a 30% reduction in the overall
proposed assessment in the penalty docket without changing the paper text of
any the citations.  Id . at 989.  The Commission agreed with the parties
that “the fact that the proposed settlement preserves all of the citations as
written could assist the Secretary in future enforcement efforts against this
operator by ensuring that the paper record reflects the Secretary’s views
regarding gravity and negligence stated in the citations.”   Id.  

In the present settlement
agreement, by contrast, the parties seek to modify the likelihood of
occurrence, the severity of injury, the S&S designation, and the negligence
of the underlying Order.  In addition, the parties seek to reduce the proposed
penalty by well-nigh 94%.  Almost any future enforcement benefit that the
Secretary might derive from the Order, as written, has been almost completely
eliminated by the proposed extensive modifications to the paper text of the
Order. [7]  
While there is likely still some marginal enforcement benefit to the modified
Order, it is nowhere near as substantive as the terms of the settlement in American
Coal II , and nowhere near as substantive as the terms of the original
Order.  

Beyond failing to be fair,
reasonable, and appropriate under the facts, the Motion fails to protect the
public interest.  The Mine Act was passed in 1977 in response to several
accidents that caused the deaths of dozens of miners.  As noted, Congress in
particular was concerned with what it viewed as a pervasive practice of erstwhile
regulators within the Department of the Interior, who surreptitiously sold out
the public interest to protect our nation’s miners based on a cozy relationship
with mine operators.  Specifically, the Senate Report stated 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
1971 , at 632.  The facts here elicit concerns that this is the same type of
convenient or misguided sellout that Congress sought to guard against when
lodging final approval for settlement agreements in contested cases with the
Commission.  

The Secretary asks that I approve a 93.5%
penalty reduction, as well as modifications to nearly every portion of the
original Order issued for violation of a mandatory training standard, enshrined
in the text of the Mine Act, on the basis of admitted facts that bear no
interpretation other than the fact that Respondent violated the Act by allowing
an untrained miner to work as a hazard likely to result in lost workdays or
restricted duty injury to himself and other miners.  The Secretary insists that
the Commission has no right to seek clarification of the facts submitted to
justify a settlement motion and that the Secretary has no obligation to respond
to questions from Commission Judges regarding how he reached the conclusions he
did in the settlement motion.  Assuming arguendo that the Secretary is correct, [8]
the undersigned is not obligated to approve a settlement agreement that lacks factual
support and fails to be fair, reasonable, and appropriate under the facts, and to
protect the public interest.  Other than transparency, the undersigned sees
little substantive distinction between MSHA’s approach to the proposed
settlement resolution in this case and the pre-1977 enforcement regime that led
to creation of the Commission’s settlement approval authority in the first
instance. 

Under section 110(k), Commission judges
do not act as a rubber stamp for the Secretary’s proposed settlement agreements. 
As outlined above, the proposed Settlement Agreement in this case lacks probative
factual support, contains substantive admissions that amount to an S&S
designation, contravenes Commission precedent, and collides with Congressional
intent to protect the health and safety of our mining industry’s most precious
resource, our miners.  Accordingly, the Secretary’s Motion to Approve
Settlement is DENIED .

Under Commission Procedural Rule
76, 29 C.F.R. § 2700, the undersigned certifies, on his own motion, that this
interlocutory ruling involves a controlling question of law and that, in his
opinion, immediate review will materially advance the final disposition of the
proceeding.  This Decision Rejecting Settlement raises similar issues to those
currently before the Commission on assignments of error in Solar Services,
Inc. , 39 FMSHRC 2052 (Nov. 2007) (ALJ).  As such, there is a question of
law that would materially advance the final disposition of the proceeding, to
wit, whether the undersigned abused his discretion in denying the Secretary’s
Motion to Approve Settlement.  See American Coal II , 40 FMSHRC at 987
(“The Commission reviews a Judge’s denial of a proposed settlement under an
abuse of discretion standard.”).

This interlocutory ruling is hereby CERTIFIED
under Commission Procedural Rule 76, 29 C.F.R. § 2700.76.  It involves a
controlling question of law and interlocutory review will materially advance
the final disposition of the proceeding.

/s/
Thomas P. McCarthy

Thomas P.
McCarthy

Administrative
Law Judge

Distribution:

George Schorr, U.S. Department of Labor, MSHA, 515 West 1st
Street, Suite 33, Duluth, MN 55802

Malcolm Dunbar, American Aggregates of Michigan, Inc., 51445
W. 12 Mile Road, Wixom, MI 48393

/ztb

[1]
The Commission ruled in footnote 6 that “some Commission Judges have a practice
of seeking additional information from parties when evaluating a proposed
settlement, and that this procedure works effectively.  Oral Arg. Tr. 21-22,
31-32, 34-35, 50, 75-76. If a party believes that a Judge has overstepped his
or her authority or otherwise committed an abuse of discretion in requesting
such facts, a party may appeal that matter to the Commission on an
interlocutory basis.   See Solar Sources, Inc. , Unpublished Order dated
May 16, 2018 (granting interlocutory review of 39 FMSHRC 2052 (Nov. 2017)
(ALJ)).”  American Coal II , 40 FMSHRC at 991 n.6.

[2]
Step two of the Mathies analysis focuses on “the extent to which the
violation contributes to a particular hazard.”  The Commission has recently
clarified that this step is “primarily concerned with likelihood of the
occurrence of the hazard against which a mandatory safety standard is
directed.”  Newtown Energy, Inc. , 38 FMSHRC 2033, 2037 (Aug.2016) ( citing
Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148, 163 (4th Cir.
2016)).  Step two of the Mathies test involves a two-part analysis:
1) identification of the hazard created by the violation of the safety
standard; and 2) “a determination of whether, based on the particular facts
surrounding the violation, there exists a reasonable likelihood of occurrence
of the hazard against which the mandatory safety standard is directed.”  Newtown
Energy, 38 FMSHRC at 2038.

[3]
The Secretary, mine operators, and the federal appellate courts have accepted
the Mathies test as authoritative.  See Knox Creek Coal Corp. ,
811 F.3d at 160 (noting federal appellate courts’ uniform adoption of Mathies
test and parties’ recognition of authority of the test); Mach Mining,
LLC v. Sec’y of Labor , 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies
criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin. ,
52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).

[4]
See also Black Beauty Coal Co. , 34 FMSHRC 1733, 1740 (Aug. 2012),
aff’d sub nom. Peabody Midwest Mining, LLC v. FMSHRC , 762 F.3d 611 (7th Cir. 2014);
Rushton Mining Co. , 11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek ,
811 F.3d at 165-66 (upholding Commission’s rejection of “snapshot” approach to
evaluating S&S for accumulations violation); Mach Mining , 809 F.3d
at 1267-68 (discussing the operative timeframe for violations in the context of
S&S analyses).

[5]
It should be noted that this Order neither challenges the Secretary’s
discretion to initially designate a violation as S&S nor raises the issue
of whether a judge on his own initiative can designate a violation as S&S. 
Cf. Mechanicsville Concrete, Inc. , 18 FMSHRC 877 (June
1996).  Rather, the question is whether a Commission judge must
accept—once the Secretary has already designated a violation as S&S—a
settlement of an S&S violation that is not fair, reasonable, or appropriate
under the facts, and does not protect the public interest.

[6]
Based on this determination, the undersigned finds it appropriate to recuse
himself from any hearing on the merits in this matter, and requests that the
Acting Chief Judge reassign this matter to another judge for hearing. 

[7]
The Secretary includes the following language in every motion to approve
settlement that he submits to the Commission:

In reaching this settlement, the Secretary has evaluated the
value of the compromise, the likelihood of obtaining a better settlement, and
the prospects of coming out better or worse after a trial.  In deciding that
such a compromise is appropriate, the Secretary has not given weight to the
costs of going to trial as compared to the possible monetary results that would
flow from securing a higher penalty total.  He has, however, considered the
fact that he is maximizing his prosecutorial impact in settling this case on appropriate
terms and in litigating other cases in which settlement is not appropriate. 
The Secretary believes that maximizing his prosecutorial impact in such a
manner serves a valid enforcement purpose.  Even if the Secretary were to
substantially prevail at trial, and to obtain a monetary judgment similar to or
even exceeding the amount of the settlement, it would not necessarily be a
better outcome from the enforcement perspective than the settlement, in which
all alleged violations are resolved and violations that are accepted can be
used as a basis for future enforcement actions. A resolution of this matter in
which all violations are resolved is of significant value to the Secretary and
advances the purposes of the Act.

Motion at 2.  Irrespective of the merits of such
regularly-inserted and practical language, the undersigned notes that one
Commissioner in American Coal II cogently observed that “[t]he
Secretary’s boilerplate recitations of having evaluated the value of the
compromise, the prospects of coming out better or worse after a trial, and
‘maximizing his prosecutorial impact’ add nothing” to the factual basis in
support of settlement.  American Coal II , 40 FMSHRC at 989 n.10 (Cohen,
C.).

[8]
But see Solar Sources, Inc. , Unpublished Order dated May 16, 2018
(granting interlocutory review of 39 FMSHRC 2052 (Nov. 2017) (ALJ)).