Star Quarries LLC v. Secretary of Labor and Secretary of Labor v. Star Quarries LLC (ALJ decision, November 4, 2019)

Plain-English summary

Star Quarries LLC faced proposed penalties totaling $1,791 across three contest dockets and one civil penalty docket. Judge Thomas P. McCarthy approved a settlement reducing the total penalty to $789. Citation No. 9425093 was vacated. Citation No. 9425094 was modified to reduce the likelihood of injury or illness from reasonably likely to unlikely and to remove its significant-and-substantial designation. Citation No. 9425096 was modified to reduce negligence from moderate to low, reduce the likelihood of injury or illness to unlikely, and remove its significant-and-substantial designation.

Decision snapshot

• Cited standards: 30 U.S.C. § 815(d); 30 U.S.C. § 820(i); 30 U.S.C. § 820(k); 30 C.F.R. § 100.3
• Outcome: Settlement approved, one citation vacated, two citations modified, and total penalty set at $789.
• Key point: The judge independently reviewed the settlement under the Mine Act’s penalty criteria and public-interest requirement.

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

STAR
QUARRIES LLC,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

STAR
QUARRIES LLC,

Respondent

CONTEST
PROCEEDINGS

Docket
No. SE 2019-0063-RM

Order
No. 9425093; 12/19/2018

Docket
No. SE 2019-0064-RM

Order
No. 9425094; 12/19/2018

Docket
No. SE 2019-0065-RM

Order
No. 9425096; 12/20/2018

Mine:
Star Quarries

Mine
ID: 08-01103

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2019-0091

A.C.
No. 08-01103-483379

Mine:
Star Quarries

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge McCarthy

This
case is before the undersigned upon Notices of Contest and a Petition for the Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Solicitor has filed a motion to approve settlement proposing a reduction in the penalties from $1,791.00 to $789.00. The Solicitor states that Citation No. 9425093 has been vacated. The Secretary’s discretion to vacate a citation or order is not subject to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). The Solicitor also requests that:

Citation
No. 9425094 be modified to reduce the likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of significant and substantial; and

Citation
No. 9425096 be modified to reduce the level of negligence from moderate to low and the likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of significant and substantial.

In
the settlement motion, the Solicitor contends that the Secretary has the “unreviewable discretion to withdraw” a designation of significant and substantial. Settlement Mot. at 3 (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996)). However, the Solicitor presents an overbroad reading of Mechanicsville. In Mechanicsville, The Commission addressed whether a Commission administrative law judge could sua sponte designate a violation as significant and substantial when the Secretary had not designated a violation as significant and substantial. The Commission ruled that there is “no material difference between the Secretary’s discretion . . . on the one hand to vacate a citation and his discretion on the other hand not to issue a citation in the first instance or not to designate a citation as [significant and substantial].” Mechanicsville Concrete, Inc., 18 FMSHRC at 879. The Commission iterated that the designation of a violation as significant and substantial “in the first instance” is a prosecutorial decision akin to the decision to vacate a citation. Id. at 880.

However,
Mechanicsville does not address situations—such as here—where the Secretary has already exercised his discretion to designate a violation as significant and substantial and now the parties come before a Commission judge to approve a settlement. This situation fits squarely within the plain language of section 110(k) of the Mine Act. Section 110(k) states 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.” The matter before the undersigned involves the parties’ request for “the approval of the Commission” to “compromise[], mitigate[], or settle[]” a violation already designated as significant and substantial. That’s a far cry from supplanting the Secretary’s discretion through an authorized representative to designate a violation as significant and substantial in the first instance. Accordingly, the undersigned rejects the Solicitor’s contention that the Secretary has the unreviewable discretion to remove a designation of significant and substantial.

The
Secretary also argues that “[t]he Secretary’s use of [the 30 C.F.R.
§ 100.3] regular assessment tables in settlement is a prima facie indication that the penalty reduction is fair, reasonable, and adequate under the facts, and protects the public interest.” Settlement Mot. at 4-5. However, not only is the Commission not bound by 30 C.F.R. § 100.3, but it is the purview of the Commission—not the Secretary or regulations issued by the Secretary—to determine whether a settlement is appropriate under the criteria set forth in section 110(i) of the Act. Sellersburg Stone Co., v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties. . . .
[W]e find no basis upon which to conclude that these MSHA [penalty] regulations also govern the Commission.”); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (“The Secretary’s regulations at 30 C.F.R. Part 100 apply only to the Secretary’s penalty proposals, while the Commission exercises independent ‘authority to assess all civil penalties provided [under the Act]’ by applying the six criteria set forth in section 110(i).” (quoting 30 U.S.C. § 820(i))).

In
order to overcome its burden the Secretary must present evidence to a judge—exercising his or her independent authority—to satisfy the six criteria set forth in section 110(i). Simply pointing to its own regulations does not overcome this burden. Therefore, the undersigned rejects the Solicitor’s contention that the application of § 100.3 establishes a prima facie case for a reasonable settlement.

Consequently,
the undersigned evaluated the settlement agreement absent the arguments rejected above.

The
undersigned considered the representations and documentation submitted in this case. Despite the fallacy of the Secretary’s legal arguments noted and rejected above, the undersigned concludes that the proffered settlement is fair, reasonable, appropriate under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in section 110(i) of the Act. The settlement amounts are as follows:

WHEREFORE,
the motion for approval of settlement is GRANTED.

It
is ORDERED that Citation No. 9425094 be MODIFIED to reduce the likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of significant and substantial.

It
is ORDERED that Citation No. 9425096 be MODIFIED to reduce the level of negligence from moderate to low and the likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of significant and substantial.

It
is further ORDERED that the operator pay a total penalty of $789.00 within thirty days of this order.[*]

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Rachel
L. Graeber

U.S.
Department of Labor

Office
of the Solicitor

61
Forsyth Street, S.W.

Room
7T10

Atlanta,
GA 30303

David
A. Stewart

Ryan
Incorporated Southern

1700
S. Powerline Road

Suite
H

Deerfield
Beach, FL 33442

/ztb