Secretary of Labor v. Genesis Alkali, LLC

Plain-English summary

A judge rejected proposed settlements covering 34 citations because major modifications and vacaturs lacked enough factual support. One proposal would have reduced a ventilation citation from S&S and fatal gravity to non-S&S and lost-workdays gravity, with a penalty cut from $12,007 to $729, despite allegations that a fan had been inoperative for 26 days where hydrogen sulfide could accumulate. The Commission held that the judge reasonably found the added explanations inadequate in light of the ventilation hazard. It also held that attempted stipulations dismissing other citations were settlements subject to Commission review under section 110(k), including citation vacaturs made as part of the bargain. The Commission affirmed the settlement denials and remanded all three dockets for further proceedings.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.14100(b)
• Outcome: The settlement denials were affirmed and the three dockets were remanded.
• Key point: Citation modifications and vacaturs made in settlement require enough facts for the judge to assess fairness, reasonableness, and the public interest.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF
LABOR,                              :

MINE SAFETY AND
HEALTH                     :        Docket Nos.    WEST 2022-0189

ADMINISTRATION
(MSHA)                         :                                WEST 2022-0267

:                                WEST 2022-0268

v.                                              
 :       

:       

GENESIS ALKALI,
LLC                                 :

BEFORE: Jordan,
Chair; Baker and Marvit, Commissioners

DECISION

BY THE COMMISSION:

This proceeding
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2018) (“Mine Act” or “Act”). It comes before us on interlocutory review
of a Commission Administrative Law Judge’s order denying two proposed
settlements between the Secretary of Labor and Genesis Alkali, LLC.

The captioned
dockets contain a total of 34 citations. The Secretary initially proposed settlements
for the three dockets in which a total of sixteen citations would be modified,
nine would be vacated, and nine would remain unchanged. The Judge denied these
settlements on October 18, 2022. Unpublished Orders (Oct. 18, 2022) (“Oct.
Order A,” “Oct. Order B”). [1]
On November 29, 2022, the Secretary filed an amended proposed settlement for Docket
No. WEST 2022-0189, and the parties filed joint “Stipulations of Dismissal” for
Docket Nos. WEST 2022-0267 and WEST 2022-0268. Under the new filings, six
citations would be modified, nineteen would be vacated, and nine would remain
unchanged.

On December 7,
2022, the Judge interpreted the joint filing as a settlement motion, denied both
motions, and certified her denials for interlocutory review. Unpublished Order

(Dec. 7, 2022) (“Dec. Order”). In denying the motion for Docket No. WEST
2022-0189, the Judge particularly found insufficient justification for the proposed
modifications to Citation No. 9479991. In denying the motion for Docket Nos. WEST
2022-0267 and WEST 2022-0268, she particularly noted the lack of any justification
for the vacaturs and found that the Secretary had abused her discretion to
vacate citations. [2]

The question
before us on interlocutory review is whether the Judge abused her discretion in
denying the November 29, 2022, motions. For the reasons below, we conclude that
the Judge did not abuse her discretion in denying the proposed settlements.

I.                   

Factual and Procedural Background

This proceeding
has a complex procedural history, summarized below. The Commission has accepted
interlocutory review of the Judge’s December 7, 2022 , order denying the
parties’ motions filed on November 29, 2022 . However, that denial order incorporates
by reference her earlier October 18, 2022, orders denying motions filed by the
Secretary in September of 2022.

September Motions : In September
2022, the Secretary filed a settlement motion in each captioned docket. [3] In each
motion, the Secretary provided some justification for proposed modifications to
citations, but none for proposed vacaturs of citations.

WEST 2022-0189: On September 30,
2022, the Secretary filed a proposed settlement  for the nine citations at
issue. According to the proposed terms, one citation would be vacated, six
would be modified, and two would be unchanged, with a corresponding total
penalty reduction from $34,483 to $9,494.

WEST 2022-0267: On September 13,
2022, the Secretary filed a proposed settlement for the thirteen citations at
issue. According to the proposed terms, four citations would be vacated, two
would be modified, and seven would be unchanged, with a corresponding total
penalty reduction from $44,540 to $10,738.

WEST 2022-0268: On September 15,
2022, the Secretary filed a proposed settlement for the twelve citations at
issue. According to the proposed terms, four citations would be vacated and
eight would be modified, with a corresponding total penalty reduction from
$76,369 to $4,686.

October Denials : On October 18,
2022, the Judge issued two orders denying the September motions (consolidating
Docket Nos. WEST 2022-0267 and 0268). [4]
She found both proposed settlements to be unfair, unreasonable, inappropriate
under the facts, and unprotective of the public interest, and particularly
found the overall penalty reductions to be contrary to the public interest. Oct.
Order A at 3, 5-7; Oct. Order B at 4, 11-13.

WEST 2022-0189: The Judge
particularly found that the explanations provided by the Secretary were insufficient
to justify the proposed modifications to Citation No. 9479991 (Oct. Order A at
3-5).

WEST 2022-0267 & 0268 : The Judge particularly
found that the Secretary abused his discretion by vacating three citations
without explanation (Oct. Order B at 6-7) and that the Secretary’s explanations
were insufficient to justify the proposed modifications for two citations ( id.
at 8-11).

November Motions : On November 29,
2022, the parties submitted two new motions.

WEST 2022-0189 : The
Secretary filed an amended settlement motion providing additional justifications
for the proposed modifications to Citation No. 9479991.     The overall terms
of the proposed settlement remained unchanged.

WEST 2022 - 0267 &
0268: The parties jointly filed a document titled “Stipulations of
Dismissal” for the combined dockets. The Respondent stated that it was
withdrawing its contest of seven citations, and the Secretary stated that she was
vacating the remaining citations pursuant to her prosecutorial discretion.  

December Denial
and Certification : On December 7, 2022, the Judge issued a single combined
order denying the November motions and certifying the matter for interlocutory
review.

WEST 2022-0189 : The Judge incorporated
by reference all rationales for denial outlined in her October order. She acknowledged
that the amended motion offered additional support for the proposed
modifications to Citation No. 9479991. However, she found the additional justifications
unconvincing, contradictory, and insufficient to establish that the changes
were fair, reasonable, appropriate or in the public interest. Dec. Order at 3.

WEST 2022-0267 & 0268 : The Judge interpreted
the “Stipulations of Dismissal” as an amended settlement motion. Id. at

2. She found that the parties had attempted to evade review of settlements, in
   contravention of the Mine Act. Id. at 2-3. The Judge again incorporated
   by reference her rationales for denial outlined in her October order and
   reiterated that the Secretary had abused her discretion to vacate citations. Id.
   at 3.

Commission
acceptance of review : On December 12, 2022, the Commission granted
interlocutory review on the issue of whether the Judge abused her discretion in
denying the November 29, 2022, motions to approve settlement. 44 FMSHRC 713,
714 (Dec. 2022).

Secretary’s
Arguments on review : [5] The Secretary requests
that the Commission vacate the Judge’s Order of December 7, 2022, approve the proposed
settlement in Docket No. WEST 2022-0189, and enter an order dismissing Docket
Nos. WEST 2022-0267 and WEST 2022-0268 consistent with the parties’
stipulations. Br. at 27.

WEST 2022-0189: The Secretary claims
that the parties’ justifications regarding Citation No. 9479991 satisfy the
Commission’s standard for approving settlements, and that the Judge erred by
not accepting the facts as presented in the motion. Br. at 24-26.

WEST 2022-0267-0268 : The Secretary
claims that she has unreviewable authority to vacate citations, consistent with
the Mine Act’s split-enforcement scheme which gives the Secretary authority
over enforcement decisions. Br. at 12-24. This argument is detailed more fully
in Section III.B, below.

III.             

Disposition

Section 110(k) of
the Mine Act states that “[n]o proposed penalty which has been contested before
the Commission . . . shall be compromised, mitigated, or settled except with
the approval of the Commission.” 30 U.S.C. § 820(k). Consistent with this
Congressional mandate, Commission Judges review proposed settlements to
determine whether they are “fair, reasonable, appropriate under the facts, and
protect[] the public interest.” American Coal Co. , 38 FMSHRC 1972, 1976
(Aug. 2016) (“ AmCoal I ”). If the support presented in the settlement is
not sufficient to permit the Judge to make that determination, the Judge may
request further support from the parties. Black Beauty Coal Co. , 34
FMSHRC 1856, 1863-64 (Aug. 2012). The Commission then reviews the Judge’s determination
under an abuse of discretion standard. E.g. , American Coal Co. ,
40 FMSHRC 983, 987 (Aug. 2018) (“ AmCoal II ”). We will affirm a Judge’s
approval or denial of a proposed settlement that is fully supported by the
record, consistent with the statutory penalty criteria, and not otherwise
improper, but abuses of discretion or plain errors are subject to reversal. Black
Beauty , 34 FMSHRC at 1863-64.

We find that the
Judge did not abuse her discretion in denying the November 29, 2022, motion filed
in Docket No. WEST 2022-0189, or in denying the motion of the same date filed
in Docket Nos. WEST 2022-0267 and WEST 2022-0268.

A.     Docket No. WEST
2022-0189

The Secretary has
filed multiple amended settlements in this docket. Each motion proposed the
same terms but provided additional support for the proposed modifications to
Citation No. 9479991. The Judge denied each motion, primarily due to insufficient
support for the proposed modifications to Citation No. 9479991. [6] The Judge’s
denial of the Secretary’s November 29, 2022, amended motion is currently before
us on review. We find that the Judge did not abuse her discretion in finding
that the proposed modifications were not fair, reasonable, appropriate under
the facts, or protective of the public interest.

Citation No.
9479991 alleges a violation of 30 C.F.R. § 57.14100(b), which requires that any
equipment defects affecting safety be “corrected in a timely manner to prevent
the creation of a hazard to persons.” The citation alleges that a ventilation
fan in the tunnels under the pumphouse had not been running for 26 days, which
would expose miners to fatal injuries if hydrogen sulfide gas was to build up
in the tunnels. The citation notes that hydrogen sulfide gas was detected at
levels of 0.5-0.9 ppm, there were no alarms or warning lights, and miners were
not carrying meters. The issuing inspector marked the citation as significant
and substantial (“S&S”), the result of high negligence, and reasonably
likely to cause fatal injury. [7]
Oct. Order A at 3.

The Secretary
proposes modifying the citation to non-S&S, reducing the gravity from
“Fatal” to “Lost Workdays,” and reducing the penalty from $12,007 to $729.

In her September
motion, the Secretary provided two statements in support of the proposed modifications:
(1) the amount of hydrogen sulfide gas detected did not exceed the

Mine Safety and Health Administration’s Threshold Limit Value (“TLV”) or the
General Industry Ceiling limit; and (2) there was no evidence that the
condition could result in lethal levels of exposure. The Judge found these insufficient
to justify the proposed changes. She noted that

gas levels in excess of the TLV pose major health risks, and found it illogical
to mitigate the level of gravity to “Lost Workdays” and remove the S&S
designation simply because the level

of contamination was not extreme enough to exceed the TLV and/or cause a
fatality. She also found the Secretary’s assertion regarding non-lethal levels
of exposure to be overbroad, conclusory, and at odds with the citation’s
assertions that gas could further accumulate, the

fan had been defective for some time, and miners may not have been aware of the
dangerous conditions. Oct. Order A at 4-5, 8.

In her November
motion, the Secretary added two additional assertions. First, the motion states
that gas concentrations could not have increased to fatal levels because the
material being pumped through the tunnels did not contain anything that would
cause concentrations to approach the TLV. Second, the motion states that the
pumphouse operator wore a gas meter any time the employee entered the tunnels
until the fan was repaired, and no gas was detected during that time. Incorporating
her October Denial by reference, the Judge again denied the proposed
settlement. She acknowledged that the Secretary’s amended motion offered
“slightly more information in support of Citation No. 9479991,” but found that
the additional facts did not resolve the insufficiency. Dec. Order at 3. She
concluded that “even in the face of the newly offered facts” the proposed
settlement failed to account for the seriousness of the violation alleged, and
that the amended motion “does not show how the major changes proposed are fair,
reasonable, appropriate, or in the public interest.” [8] Id.

The citation
alleges that miners were working in contaminated air without a functional
ventilation fan for nearly a month, constituting a significant and substantial
violation. As the Judge noted, the hazards associated with inadequate
ventilation are “among the most serious in mining.” U.S. Steel Mining Co. ,
7 FMSHRC 1125, 1129 (Aug. 1985) (internal citations omitted) (cited in Oct.
Order A at 4). A persistent and overlooked defect in a ventilation fan can
allow the accumulation of potentially hazardous gases, i.e., can significantly
and substantially contribute to a hazard. See Oak Grove Res., LLC v. Sec’y
of Labor , 520 F.App’x. 1, 2013 WL 1729514 (D.C. Cir. 2013) (unpublished)
(upholding Judge’s determination that a failure to conduct a weekly examination
was S&S where the record indicated that a compromised ventilation fan,
if undetected by inspection, might allow methane and other potentially lethal
gases to build up in the mine).

The Secretary seeks to reduce
the level of gravity to “Lost Workdays” and remove the S&S designation,
primarily on the basis that hydrogen sulfide accumulations could not reach
fatal levels. However, a likelihood of fatality is not required for a violation
to be S&S. Long-term exposure to non-fatal levels of gas may still cause
serious injury. Additionally, poor ventilation carries other risks in addition
to hydrogen sulfide accumulations.

The Secretary also represents
for settlement purposes that the pumphouse operator’s gas detector did not
detect any gas when he entered the tunnels. However, gas was apparently
detected when the citation was issued. Furthermore, as the Judge noted, S&S
evaluations should be made in terms of continued mining operations. The fact
that gas was not detected at a certain time does not preclude a buildup of gas
if normal mining operations were to continue. Oct. Order A at 4, citing U.S.
Steel , 7 FMSHRC at 1130.

The Judge found in her October
Order that the Secretary’s initial representations did not sufficiently justify
the proposed modifications of reducing the gravity for Citation No. 9479991 to
“Lost Workdays” and removing the S&S designation. The Judge then found in
her December Order that the Secretary’s additional representations were still
insufficient to justify the proposed modifications, in light of the seriousness
(i.e., gravity) of the violation. In other words, the Judge found that it would
not be fair, reasonable, appropriate under the facts, or protective of the
public interest to reduce the citation’s gravity to “Lost Workdays” and remove
the S&S designation simply because miners would not have been exposed to fatal
levels of hydrogen sulfide. The Judge did not abuse her discretion in denying
the proposed settlement.

B.      Docket Nos. WEST
2022-0267 & WEST 2022-0268

In the docket
discussed above, the terms of the successive settlement motions remained
constant. Conversely, in the dockets discussed below, the parties’ November 29,
2022, filing differed radically from earlier motions. The Secretary initially
proposed vacating eight citations, modifying ten citations, and keeping seven
unchanged. When the proposed settlement motion was denied, rather than amending
the motion to provide additional support, the parties jointly filed “Stipulations
of Dismissal” in which the Respondent stated that it was withdrawing its
contest of seven citations, and the Secretary stated that she was vacating eighteen
citations pursuant to her prosecutorial discretion, without case-specific
justification. For the reasons below, consistent with our recent holding in Crimson
Oak Grove Res. , 46 FMSHRC 593 (Aug. 2024) (“ Crimson Oak ”), we
find that the Judge did not abuse her discretion in denying the parties’ November
29, 2022, filing.  

The Commission’s
decision in Crimson Oak , issued after the captioned matter was certified
for interlocutory review, is highly relevant to this proceeding. As here, the
parties filed “Motions to Dismiss” in which the operator stated that it would withdraw
its contest of certain citations and the Secretary stated that she would
dismiss the remaining citations, without providing support for the proffered
terms. Id. at 595-97. As here, the Secretary claimed unreviewable
prosecutorial discretion in determining whether to vacate a citation. Compare
id. at 597-98 with Br. at 12-24. As here, the Judge rejected the
Secretary’s claim and denied the motions. As in Crimson Oak , we affirm
the Judge’s denial.

As a preliminary
matter, the Judge did not err in interpreting the parties’ “Stipulations of
Dismissal” as a settlement motion. Where an operator has agreed to forfeit its
right to contest certain citations and the Secretary has agreed to vacate the
remaining citations to effectuate the resolution of a legal matter, “[t]he deal
that the parties have reached . . . clearly constitutes a settlement.” Crimson
Oak , 46 FMSHRC at 602. As the Judge notes, the parties here have “settled
the case and now present new terms.” Dec. Order at 2, n.1. The Secretary concedes
that Genesis Alkali was initially “willing to accept modified versions of ten
violations” across the two dockets, however “the ALJ’s refusal to recognize the
eight vacaturs that occurred during settlement compelled the Secretary to
vacate” those ten citations that would otherwise have been modified. Br. at 22.
In other words, the parties’ lack of success in having the original settlement
terms approved “compelled” the Secretary to change the terms. The Secretary’s
decision to vacate the citations was made within the context of settlement.

Parties who submit
settlement motions must provide supporting justifications, so that the Judge
may determine whether the proposed terms are fair, reasonable, appropriate
under the facts, and protective of the public interest. AmCoal I , 38
FMSHRC at 1981. This basic premise holds true for vacaturs in the settlement
context. Crimson Oak , 46 FMSHRC at 598 (vacaturs in the settlement
context are subject to Commission review and “parties must provide sufficient
facts to support the vacatur of the citation or order in a settlement proceeding”).

In Crimson Oak
and the captioned matter, the Secretary has asserted that the Mine Act’s
split-enforcement scheme grants the Secretary the sole authority to enforce the
statute, thus precluding Commission review of her decision to vacate a
citation. She has contended that section 110(k) of the Act does not restrict the
Secretary’s discretion, because it only authorizes the Commission to review settlement
of penalty amounts and does not provide any meaningful standard by which to
review the Secretary’s vacatur decision. The Secretary has relied in part on
the Supreme Court’s holding in Cuyahoga Valley that the power to issue
citations necessarily requires the Secretary to have the power to withdraw
them. See Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3, 7
(Nov. 1985) (“ Cuyahoga Valley ”); RBK Construction Inc. , 15 FMSHRC
2099 (Oct. 1993) (“ RBK Construction ” or “ RBK ”). Compare Br.
at 12-20 with Crimson Oak , 46 FMSHRC at 597-98.

Section 110(k) of
the Act states that “[n]o proposed penalty which has been contested before the
Commission . . . shall be compromised, mitigated, or settled except with the
approval of the Commission.” 30 U.S.C. § 820(k). As we explained in Crimson
Oak , this explicit Congressional mandate clearly and unambiguously “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.” [9]
Crimson Oak , 46 FMSHRC at 599. Additionally, we held that section
110(i), which sets forth the six statutory factors for assessing penalty
amounts, provides a meaningful standard of review to apply in determining
whether the Secretary has met her burden of justifying a proposed settlement. Id.
at 600; 30 U.S.C. § 820(i).

Although sections
110(k) and 110(i) refer to penalties, we emphasized in Crimson Oak that
settlements are a holistic package of interacting monetary and nonmonetary
aspects which the Judge must consider in its entirety. 46 FMSHRC at 603-04, citing
AmCoal II , 40 FMSHRC at 989. We noted that penalties and citations are
closely intertwined, but under the Secretary’s position “the Commission and the
public would have no ability or right to understand what [had] happened” if a
vacatur in the settlement context reduced a penalty to zero. Id. at 604.

As we further explained
in Crimson Oak , the cases relied on by the Secretary are readily
distinguishable. Cuyahoga Valley (upon which RBK relies) was
brought under the Occupational Safety and Health Act (“OSH Act”) rather than
the Mine Act. Significantly,
the OSH Act does not contain any provision parallel to section 110(k) authorizing
the Commission to review the Secretary’s proposed settlements. Additionally, the
motions to dismiss in Cuyahoga Valley and RBK were brought in the
context of voluntary dismissal, not settlement. Finally, in both cases the administrative
agency provided the court with an explanation as to why the withdrawal or
vacatur was taken. Id. at 601-02.

Consistent with our
subsequent analysis in Crimson Oak , the Judge in this matter found that
allowing the Secretary to vacate citations in the settlement context without
review would thwart Congress’ intent in drafting section 110(k) of the Act. Dec.
Order at 2-3. She also similarly noted that RBK was
distinguishable because it did not involve settlement of penalties and
relied on a case arising under the OSH Act. [10]
Oct. Order B at 7.
Accordingly, she properly rejected the Secretary’s claim of unreviewable
discretion to vacate citations in the settlement context. Dec. Order at 2-3.

The parties’
November 29, 2022, filing was a settlement motion. All settlement motions, including
vacaturs in the settlement context, must be supported by sufficient justifications
for the Judge to determine if the proposed terms are fair, reasonable,
appropriate under the facts, and protective of the public interest. Crimson
Oak , 46 FMSHRC at 598; AmCoal I , 38 FMSHRC at 1981. Here, the Judge
denied the November 29, 2022, motion because the parties provided no justifications.
Dec. Order at 2. The Judge did not abuse her discretion in denying the
settlement. AmCoal I , 38 FMSHRC at 1984-85; Crimson Oak , 46
FMSHRC at 598.

IV.

Conclusion

For the reasons set forth
above, we affirm the Judge’s denial of the proposed settlements. The dockets
are hereby remanded to the assigned Judge for further proceedings.

/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

Donna Pryor

Husch Blackwell
LLP

1801 Wewatta
Street, Suite 1000

Denver, CO 80202

[email protected]

Rebecca Mullins,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

200 Constitution
Avenue NW, Suite N4428

Washington, DC
20210

[email protected]

Thomas A. Paige,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

Division of Mine
Safety and Health

200 Constitution
Avenue NW, Suite N4420-N4430

Washington, DC
20210

[email protected]

Emily O. Roberts,
Esq.

Division of Mine
Safety and Health

Office of the
Solicitor

200 Constitution
Avenue NW Suite N4420 – N4430

Washington, DC
20210

[email protected]

Melanie Garris

US Department of
Labor/MSHA

Office of
Assessments, Room N3454

200 Constitution
Ave NW

Washington, DC
20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office of the
Chief Administrative Law Judge

Federal Mine
Safety and Health Review Commission

1331 Pennsylvania
Avenue, NW Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative Law
Judge David P. Simonton

Office of the
Chief Administrative Law Judge

Federal Mine
Safety and Health Review Commission

721 19th Street,
Suite 443

Denver, CO
80202-2536

[email protected]

[1] For purposes of
this decision: “Oct. Order A” refers to the Judge’s October 18, 2022, Denial
Order in Docket No. WEST 2022-0189; “Oct. Order B” refers to the Judge’s
October 18, 2022, Denial Order in Docket Nos. WEST 2022-0267 and WEST
2022-0268; and “Dec. Order” refers to the Judge’s combined December 7, 2022,
Order in all three dockets.

[2] The consolidated
dockets have since been reassigned to another Administrative Law Judge. Unpublished
Order dated Jan. 11, 2023.

[3] The Secretary had
filed earlier settlement motions in each of these dockets, which were
informally denied. The Secretary then filed amended motions with additional justification
but the same substantive terms. These amended motions (the “September Motions”)
were the first settlement motions to be formally denied (October 18, 2022).

[4] The Judge
certified both denial orders for interlocutory review on November 17, 2022. The
Commission ultimately found those certifications moot, in light of the
subsequent settlement motions. 44 FMSHRC 713, 714 (Dec. 2022).

[5] Genesis Alkali
has not filed any briefs in this matter.

[6] The Judge also found
the total penalty reduction to be a “major defect” in the proposed settlement. Oct.
Order A at 5. However, even on that point, she “object[ed], in particular, to
the penalty reduction associated with Citation No. 9479991.” Id. at 6.

[7] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1) , which distinguishes as more
serious in nature any violation that “could significantly and substantially
contribute to the cause and effect of a . . . mine safety and health hazard.”

[8] The Judge did not
explicitly analyze each additional justification proposed by the Secretary in
the November motion. We note that, in denying a proposed settlement, Judges are
generally required to “articulate [any deficiencies] with some particularity.” Solar
Sources Mining , 41 FMSHRC 594, 602 (Sept. 2019). A fully articulated
decision allows the Commission to effectively perform our review function. Harborlite
Corp. v. ICC , 613 F.2d 1088, 1092 (D.C. Cir. 1979). In this instance,
however, any error in this regard is harmless. As explained further below, the
new proposed justifications in the Secretary’s November Motion do not address
the underlying insufficiencies noted in the Judge’s October Order and incorporated
by reference into her December Order. The Judge’s second denial of the proposed
settlement is supported by the record. E.g. , Black Beauty Coal Co. ,
34 FMSHRC 1856, 1864 (Aug. 2012).

[9] During the June
20, 1977, Senate Floor Debate regarding the Federal Mine Safety and Health
Amendments Act of 1977, Senator Wendell H. Ford noted:

[T]his bill limits the opportunities for
compromising penalties. The settlement of penalty assessments in the past,
often for as little as 30 cents on the dollar, has been a disgrace, as well as
a serious obstacle to effective use of the civil penalty mechanism to encourage
compliance.

123
Cong. Rec. 19931 (1977) (statement of Sen. Ford), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977 , at 922 (1978).

[10] The Judge’s
analysis of the Secretary’s claim of unreviewable discretion is primarily found
in her October Order. Oct. Order B at 6-7. The Judge then incorporated “the
rationales given for denying the settlement proposed originally” into her
December Order. Dec. Order at 3. The motions addressed in the October Order
include proposed modifications which are absent from the motion addressed in
the December Order. If the Judge intended to incorporate her factual
analysis of those proposed modifications , that would
constitute plain error since those terms were superseded by the later proposal.
However, both sets of motions include proposed vacaturs of citations without
factual support. The Judge’s legal analysis of the Secretary’s claim
of unfettered discretion to vacate in the settlement context may rationally
be incorporated into her later order. Even if the Judge committed reversible
error by inappropriately incorporating certain rationales, remand for
reconsideration is unnecessary. For the reasons above, the November 29, 2022,
motion must be denied consistent with Crimson Oak , 46 FMSHRC 593 (Aug.
2024).