Oak Grove Resources, LLC v. Secretary of Labor

Plain-English summary

After a fatal accident, MSHA cited Oak Grove for violating a transportation safeguard. Earlier Commission proceedings established that the safeguard was valid and violated but rejected the S&S designation, leaving the penalty for remand. The Judge assessed $50,000 after changing his earlier moderate-negligence finding to high negligence. On joint review, the parties argued that moderate negligence was law of the case because it had not been appealed, and proposed $35,000. The Commission found that justification sufficient, approved the settlement, and ordered payment within 30 days.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 820(i), 820(k), and 874(b); 29 C.F.R. § 2700.31
• Outcome: The settlement was approved and Oak Grove was ordered to pay $35,000.
• Key point: An unappealed negligence finding may constrain a later remand penalty analysis, supporting settlement at a lower amount.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

OAK GROVE RESOURCES, LLC                 :                  

:                   Docket Nos. SE 2009-261-R

v.                                                
:                                        SE 2009-487

:

SECRETARY OF LABOR,                              :

MINE SAFETY AND HEALTH                      :

ADMINISTRATION (MSHA)                         :

:                                   

:

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

DECISION APPROVING SETTLEMENT

BY THE COMMISSION:

These proceedings
arising under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq.
(2012) (“Mine Act”), involve a citation issued by the Department of Labor’s
Mine Safety and Health Administration to Oak Grove Resources, LLC following a
fatal accident at its mine. The Secretary of Labor issued the citation for a
violation of a notice of safeguard which had been previously issued to the mine
pursuant to section 314(b) of the Mine Act, 30 U.S.C. § 874(b).

Oak Grove contested
the citation and the associated civil penalty before a Commission Administrative
Law Judge. The Judge vacated the citation; he concluded that the underlying
safeguard had not been validly issued. 33 FMSHRC 846, 852-54 (Mar. 2011) (ALJ).

The
Secretary filed a petition for discretionary review, which we granted. The
Commission reversed the Judge, concluded that the safeguard notice was valid,
and remanded the cases to the Judge for further proceedings. 35 FMSHRC 2009,
2015 (July 2013).

On remand, the
Judge concluded that Oak Grove violated the safeguard, the violation was significant
and substantial (“S&S”), and the violation was the result of a moderate
degree of negligence on the part of Oak Grove. 35 FMSHRC 3422, 3431 (Nov. 2013)
(ALJ).

Oak
Grove then filed a petition for discretionary review, which we granted. On
review, the Commission affirmed the Judge’s decision that Oak Grove violated
the safeguard, but concluded that the Judge’s determination that the violation
was S&S was not supported by substantial evidence in the record. 37 FMSHRC
2687, 2695 (Dec. 2015). The Commission remanded the proceedings to the Judge
for an assessment of an appropriate penalty.

On
remand, the Judge applied the statutory penalty criteria in section 110(i) of
the Mine Act, 30 U.S.C. § 820(i), and assessed a $50,000 penalty. In
determining “whether the operator was negligent,” as required by the penalty criteria,
the Judge revised his finding that Oak Grove was moderately negligent, and
determined that the violation was the result of Oak Grove’s high negligence. 38
FMSHRC __, slip op. at 17-19 (April 6, 2016).

The parties
subsequently filed a joint petition for discretionary review. Included in the
joint petition for discretionary review is a motion requesting that the
Commission approve a settlement agreement between the parties. The Commission
has granted the petition for discretionary review in a separate order, and now
disposes of these cases.

The parties’
joint request for approval of settlement was filed in accordance with section
110(k) of the Mine Act, 30 U.S.C. § 820(k), which provides, in relevant part, 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.”
Commission Procedural Rule 31 provides that a “proposed penalty that has been
contested before the Commission may be settled only with the approval of the Commission
upon motion.” 29 C.F.R. § 2700.31(a). The movant is required to provide “facts
in support of the penalty agreed to by the parties.” 29 C.F.R. §§
2700.31(b)(1), (c)(1). 

In
their joint filing, the parties contend that the Judge exceeded his authority
when he revised his negligence finding from moderate negligence to high
negligence, given that the original determination of moderate negligence had
not been appealed, and had become law of the case. PDR at 3 (citing Manalapan
Mining Co., 36 FMSHRC 849, 852-54 (Apr. 2014)). The parties represent that
a total penalty of $35,000, rather than the $50,000 ordered by the Judge, is
appropriate based upon the Judge’s original conclusion that Oak Grove was
moderately negligent.

The
parties’ joint request for approval of settlement is granted. We determine that
the parties have justified that a reduction of the penalty is appropriate
considering the Judge’s original finding that Oak Grove was moderately
negligent. See 30 U.S.C. § 820(i) (“In

assessing civil monetary
penalties, the Commission shall consider . . . whether the operator was

negligent . . .”). Oak Grove
is ordered to pay the civil penalty of $35,000 within 30 days of the issuance
of this order. 

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner  

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner