Secretary of Labor vs. Genesis Alkali, LLC

Plain-English summary

A judge denied amended settlement filings in three Genesis Alkali proceedings. She found inadequate support for deleting a significant and substantial designation in one case and for preserving seven citations while vacating eighteen others in the related cases. The Commission treated earlier certifications as moot because the parties had filed new motions. It accepted the judge's later certification and granted interlocutory review on whether she abused her discretion in denying the November 29 settlement motions.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.76(a)
• Outcome: Interlocutory review was granted on the denial of the parties' latest settlement filings.
• Key point: New settlement filings can moot earlier review requests while leaving a later denial eligible for immediate Commission review.

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 No. WEST 2022-0189

ADMINISTRATION (MSHA) : A.C. No. 48-00152-548001

:

: Docket No. WEST 2022-0267

v. : A.C. No. 48-00152-550854

:

: Docket No. WEST 2022-0268

GENESIS ALKALI, LLC : A.C. No. 48-00152-550854

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018). On November 17, 2022, a Commission Administrative Law Judge issued two orders certifying for interlocutory review her denial of the Secretary of Labor’s amended motions to approve settlement in the captioned proceedings. On November 29, 2022, the parties submitted further amended motions to approve settlement.[1] On December 7, 2022, the Judge issued an order denying those motions and certifying her denial for interlocutory review. See 29 C.F.R. § 2700.76(a)(1)(i).

The Judge denied the November 29, 2022, settlement motions because she concluded that the submitted facts could not support a finding that the settlement terms were fair, reasonable, appropriate under the facts, or protective of the public interest. See Am. Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016). Regarding Docket No. WEST 2022-0189, the Judge particularly noted the Secretary’s failure to account for the seriousness of a violation or justify deletion of a significant and substantial designation. Regarding Docket Nos. WEST 2022-0267 and WEST 2022-0268, the Judge noted that the parties provided no factual support in moving to preserve several citations and vacate the rest, and found that the Secretary had abused his authority to vacate citations.

Commission Procedural Rule 76(a) provides that interlocutory review is a matter of sound discretion of the Commission, and that the Commission may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a).

In light of the parties’ subsequent filings, the Judge’s November 17, 2022, certifications for interlocutory review are moot.

Upon consideration by the Commission, the Judge’s December 7, 2022, certification for interlocutory review is accepted. The Commission hereby grants interlocutory review on the issue of whether the Judge abused her discretion in denying the November 29, 2022, motions to approve settlement. The Secretary shall file an opening brief with the Commission within 30 days of this order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the Secretary’s brief.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Rebecca Mullins, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Bruce H. Jakubauskas

Mine Safety & Health Administration

U.S. Department of Labor

Thornhill Industrial Park

178 Thorn Hill Road Suite 100

Warrendale PA 15086

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Donna Pryor

Husch Blackwell LLP

1801 Wewatta Street Suite 1000

Denver CO 80202

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue NW, Suite 520N

Washington DC 20004-1710

[email protected]

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue NW, Suite 520N

Washington DC 20004-1710

[email protected]

[1] The Secretary of Labor submitted an amended motion to approve settlement for Docket No. WEST 2022-0189. As for Docket Nos. WEST 2022-0267 and WEST 2022-0268, the parties submitted a joint “Stipulation of Dismissal” in which Genesis Alkali stated it was withdrawing its contest of seven citations and the Secretary stated he was vacating the remaining eighteen citations. The Judge interpreted this filing as an amended motion to approve settlement.