Secretary of Labor v. Greenbrier Minerals, LLC

Plain-English summary

Greenbrier and the Secretary proposed settling six citations, including removal of the significant-and-substantial designation from a citation alleging an inoperable emergency stop switch on a feeder breaker. That change would also have reduced the proposed penalty from $1,593 to $302. The Commission held that the Secretary does not have unreviewable discretion to remove an S&S designation from a contested citation in settlement. It found that the parties' facts about workspace and reflective tape did not address the cited hazard, which was the inability to stop the machine in an emergency. The Commission affirmed the ALJ's denial of the settlement motion and remanded the case.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(a)
• Outcome: The settlement denial was affirmed, and the case was remanded to the ALJ.
• Key point: Removing an S&S designation in settlement requires Commission approval and factual support tied to the cited hazard.

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 :

ADMINISTRATION
(MSHA) :

:

v.
: Docket No. WEVA 2022-0403

:

:

GREENBRIER
MINERALS, LLC :

BEFORE: Jordan,
Chair; Baker and Marvit, Commissioners

DECISION

BY THE COMMISSION:

This
proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), involves the interlocutory review
of a Commission Administrative Law Judge’s denial of a proposed settlement
between the Secretary of Labor and Greenbrier Minerals, LLC (“Greenbrier”).

At
issue is whether the Secretary has unreviewable discretion to remove a
significant and substantial (“S&S”) designation[1] from a
contested citation without the Commission’s approval under section 110(k) of
the Mine Act, 30 U.S.C. § 820(k).[2]
This same issue was recently decided by the Commission in Knight Hawk Coal,
LLC, 46 FMSHRC 563 (Aug. 2024).[3]
For the reasons set forth below and as more fully discussed in our lead
decision in Knight Hawk, we answer that question in the negative, affirm
the Judge’s denial of the settlement motion, and remand the case to the Judge.

I.

Factual and Procedural Background

The Secretary
filed a motion to approve settlement involving six citations issued by the Department
of Labor’s Mine Safety and Health Administration (“MSHA”) to Greenbrier. The
parties proposed that: (1) for two citations, the negligence levels would be
modified from moderate to low, and the proposed penalties would be lowered; (2)
for three citations, the allegations would remain as written, and the proposed
penalties would remain the same; and (3) for one citation, Citation No. 9563253,
the gravity level would be modified from “reasonably likely and S&S” to
“unlikely and non-S&S,” and the proposed penalty would be lowered from
$1,593 to $302.

As relevant here,
the motion to approve settlement provided in part that Citation No. 9563253,
the last citation listed above, alleged an S&S violation of 30 C.F.R. § 75.1725(a)[4] because the
operator failed to maintain a feeder breaker in a safe operating condition. Specifically,
the emergency stop switch was “tied to the bearing plate of a roof bolt
installed for permanent roof support, rendering the . . . switch inoperable.” Mot.
to App. Settlement at 4. The parties also included Greenbrier’s contention that
“no hazard was present,” and that it would argue at hearing that there were
“precautionary measures” that would preclude an injury-producing event from
occurring. Id. Specifically, the area around the feeder breaker had
sufficient room to allow miners to safely work and travel in the area, and the
feeder breaker had reflectors to delineate its boundaries. Id. In
addition, the Secretary stated that she may exercise her discretion to make
this modification as part of a settlement, citing American Aggregates of
Michigan, Inc., 42 FMSHRC 570, 576-79 (Aug. 2020), and Mechanicsville
Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996). Id.

The Judge
contacted the parties and requested further information regarding why the
violation alleged in Citation No. 9563253 posed no hazard. In response to the
Judge’s request, the Secretary submitted an amended motion to approve
settlement. The parties amended the motion to state that the stop switch was
not “integral to the safe operation of the machine,” and that an
injury-producing event due to the switch being tied off was remote and highly
unlikely. Amended Mot. to App. Settlement at 4. The amended motion recognized
that Greenbrier asserted that “no hazard was present, thus the likelihood of
injury would more appropriately be described as ‘Unlikely’ due to the cited
condition.” Id.

The Judge
subsequently informed the parties that he was unable to approve the settlement
based upon the factual support provided. The parties requested that the Judge
enter an order denying settlement so that the Secretary could move for
interlocutory review.

The Judge issued
an order denying the motion to approve settlement. Unpublished Order dated Nov.
22, 2022 (“Order”). He held that the parties must provide facts in support of
the modification for each violation so that the Judge may set forth reasons for
his approval when reviewing settlements. Id. at 3. The Judge reasoned
that the facts provided by the parties should be substantive and relevant and,
“taken as true, should enable a [J]udge to plausibly infer that the violation
did not occur or does not meet the requirements of the designation the parties
propose to modify.” Id. He noted that for removal of an S&S
designation, the facts should challenge one of the S&S factors set forth in
Mathies Coal Company, 6 FMSHRC 1, 3-4 (Jan. 1984). The Judge concluded
that the parties provided legal conclusions and facts that did not address the
hazard, that is, the inability to stop the machine in an emergency, and were
precedentially irrelevant to an S&S analysis. Id. at 3-4. Accordingly,
the Judge denied the settlement motion, certified the matter for interlocutory
review, and stayed the proceedings pending the decision on interlocutory
review.

The Commission granted
interlocutory review on the issue of “whether the Secretary has unreviewable
discretion to remove an S&S designation from a contested citation without
the Commission’s approval under section 110(k) of the Mine Act.” 44 FMSHRC 706
(Dec. 2022).

II.

The
Parties’ Arguments

The Secretary essentially
makes the same arguments here as she did in Knight Hawk. The Secretary asserts
that she has unreviewable prosecutorial discretion to remove an S&S
designation because S&S designations are “enforcement decisions,” and not “penalties,”
under the language of section 110(k). S. Br. at 1, 9. The Secretary cites to
the Commission’s decisions in Mechanicsville Concrete, Inc. and American
Aggregates of Michigan, Inc. to support her position that she need only
depend on her discretion when vacating S&S designations in settlements. S. Br.
at 3-4, 9, 11-12. Finally, the Secretary argues that the role of the Commission
is limited to adjudicating disputes and that other considerations support the
Secretary’s unreviewable discretion to remove S&S designations, such as fairness
to operators, public confidence in Mine Act enforcement, and the Equal Access
to Justice Act (“EAJA”). Id. at 14, 16-20.

The operator filed
a response brief agreeing with the Secretary’s arguments and stating that the
Commission should vacate the Judge’s denial of the settlement motion and
approve the settlement.

III.

Disposition

A.
The
Secretary does not have unreviewable discretion to remove an S&S
designation from a contested citation without the Commission’s approval under
section 110(k).

For the reasons
set forth below and as stated more fully in Knight Hawk, we hold that sections 110(k)
and 110(i) of the Mine Act, 30 U.S.C. §§ 820(k) and 820(i), demonstrate an intent
to circumscribe the Secretary’s enforcement discretion, and that they supply a meaningful
standard of review to evaluate the Secretary’s removal of S&S designations
in settlement proceedings.

Agency decisions not to enforce,
including an agency’s decision to settle, are generally committed to the
agency’s discretion, and are therefore presumptively unreviewable. Heckler
v. Chaney, 470 U.S. 821, 831 (1985); see, e.g., Baltimore
Gas & Elec. Co. v. FERC, 252 F.3d 456, 459-60 (D.C. Cir. 2001). However,
this presumption of unreviewability may be overcome if the relevant statute
“has indicated an intent to circumscribe agency enforcement discretion,
and has provided meaningful standards for defining the limits of that
discretion.” 470 U.S. at 834 (emphasis added).

The Commission
has held that, in the settlement context, section 110(k) provides an exception
to the general rule of unreviewability. Section 110(k) expressly curtails the
Secretary’s authority to settle a case. As stated in American Coal Co.,
38 FMSHRC 1972, 1980 (Aug. 2016) (“AmCoal I”),
“[s]ection 110(k) is an explicit expression of Congressional authorization that
rebuts any presumption of unreviewability” under Heckler.

As to the scope of the intended
circumscription, a review of the language of the Mine Act, the legislative
history, comparisons to other health and safety statutes, and practical
considerations all signal an expansive role for the Commission. This includes
the authority to review S&S removals in citations within settlements as a
necessary component of its settlement review authority. In reaching this
holding, we do not grant the Commission any new settlement review authority
beyond that of AmCoal I and American
Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”). 46 FMSHRC at 567.

With respect to the language of
section 110(k), the
inclusion of the terms “compromised,” “mitigated,”
and “settled” indicates a Congressional intent for Judges to apply a holistic
approach to reviewing settlements.
The fact that Congress chose these words instead of using narrower language
specifying that a penalty amount may not be lowered without Commission approval
demonstrates that Judges must be able to review more than the mere settlement
of civil penalty dollar figures.
Congress’ choice of broad language demonstrates that penalties are closely
intertwined with the allegations set forth in citations in settlement
proceedings.

Our reading of section 110(k) is
consistent with previously announced interpretations of the Mine Act. For
instance, the Commission has recognized that Judges must “accord due
consideration to the entirety of the proposed settlement package,
including both its monetary and nonmonetary aspects.” See, e.g.,
AmCoal II, 40 FMSHRC at 989 (emphases added). During settlement review, a
Judge cannot be limited to looking solely at discrete penalty dollar amounts. Judges
may look at compromises of the citation’s allegations, and those compromises
may impact the penalty amount or have other legal consequences.

The legislative history and policy
considerations of section 110(k) reinforce the need for Commission review of
the Secretary’s removal of S&S designations in settlement proceedings. As
we have previously recognized, Congress unquestionably delegated to the
Commission the power to administer section 110(k) by granting the Commission
the authority to review all settlements of citations under the Act. See
AmCoal I, 38 FMSHRC
at 1976. Congress explained
that section 110(k) was intended to assure that prior abuses involved in the unwarranted lowering of
penalties, because of off-the-record negotiations, would
be avoided by providing for independent Commission settlement review. S. Rep.
No. 95-181, at 44, reprinted in Senate Subcommittee on Labor, Committee
on Human Res., 95th Cong., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 632–33
(1978). Section 110(k) serves to maintain
the deterrent effect of violations and penalties, in part by preventing the
Secretary from abusing her authority
to settle such violations without appropriate justification. See AmCoal I,
38 FMSHRC at 1976 (citing S. Rep. No. 95-181, at 44). The Commission cannot
effectively review the Secretary’s reduction of a penalty without examining the
factors that go into it. This underscores the importance of a meaningful,
all-encompassing review by the Commission that goes beyond mere dollar amounts.

As the Commission recognized in Knight Hawk, Congress’
intent is further reinforced by a comparison of the Mine Act to the
Occupational Safety and Health Act (“OSH Act”). 46 FMSHRC at 568-69. The OSH
Act provides that the Secretary is authorized to take such actions to
compromise, mitigate, or settle without approval by the Occupational
Safety and Health Review Commission (“OSHRC”). However, in the Mine Act – which
was passed seven years later – Commission approval is required. Compare 29
U.S.C. § 655(e) with 30 U.S.C. § 820(k). As with the Mine Act’s
legislative history, this comparison between the language of the statutes
elucidates Congress’ intent, in drafting the Mine Act, to avoid the abuses arising
from off-the-record negotiations by the Secretary, by envisioning a greater
role for the Commission under the Mine Act.

Practical and common-sense
considerations support an interpretation of the statute that grants broad
authority to the Commission to approve or deny settlement motions. Here, during a settlement
proceeding, the Secretary’s removal of an S&S designation of a citation
resulted in a reduced penalty amount. Whether the penalty amount is appropriate
cannot be properly determined without consideration of how other changes to the
citation impact the penalty.

As to the requirement for the
provision of a meaningful standard, in Knight Hawk, we held that sections
110(i) and 110(k) provide a “judicially manageable standard . . . for judging how and when [the Secretary] . . . should exercise [her] discretion” in removing S&S
designations in settlement proceedings. 46 FMSHRC at 570 (quoting Speed
Mining, Inc. v. FMSHRC, 528 F.3d 310, 317 (4th Cir. 2008) (other citations
omitted)). Section 110(i) provides a judicially manageable standard by setting
forth the six penalty factors that the Commission must consider in assessing a
penalty. Although section 110(i) does not explicitly reference S&S, it does
require consideration of evidence of the “gravity” of the violation. The
Commission has held that gravity and S&S, although not identical, are
“based frequently upon the same or similar factual circumstances.” Quinland
Coals, Inc., 9 FMSHRC 1614, 1622 n. 11 (Sept. 1987), citing 30
U.S.C. §§ 820(i), 814(d). S&S is essentially the interplay between the
“likelihood” and “severity” components of “gravity” in the Mine Act and its
related regulations. See, e.g., 30 C.F.R. § 100.3, Tables XI, XII. In
short, the Commission’s review of the Secretary’s decision to remove an S&S
designation is not arbitrary but is instead guided by the statutory language in
section 110(i) regarding gravity.

In addition to section 110(i), the
Commission has interpreted section 110(k) to require settlements to be “fair,
reasonable, appropriate under the facts, and [to] protect[] the public
interest.” AmCoal I, 38 FMSHRC at 1976. This standard also applies with
respect to the Secretary’s decision to remove an S&S designation. Accordingly,
as we held in Knight Hawk, the Heckler presumption of
unreviewability for the Secretary has been overcome. Knight Hawk, 46
FMSHRC at 571 (citing Heckler, 470 U.S. at 834).

We reiterate that neither Mechanicsville
nor American Aggregates support the parties’ positions in this case
that S&S determinations made in the context of a settlement are
presumptively unreviewable “enforcement decisions.” 46 FMSHRC at 571.

Mechanicsville is distinguishable in two respects.
First, Mechanicsville involved a Judge’s attempt to add an
S&S designation while the current case involves a proposal by the Secretary
to eliminate an S&S designation. 18 FMSHRC at 879-80 (holding that,
where MSHA has not charged an S&S violation, a Judge may not make an
S&S finding on his or her own initiative). Second, Mechanicsville
relies on a line of precedent stemming from a case brought under the OSH Act. See
RBK Construction, Inc., 15 FMSHRC 2099, 2101 (Oct. 1993), citing
Cuyahoga Valley Railway Co v. United Transportation Union, 474 U.S. 3, 6-7
(1985). As noted above, the OSH Act and the Mine Act diverge regarding the
Secretary’s authority over settlements. Therefore, precedent developed under
the OSH Act does not inherently apply to the Mine Act in the settlement
context.

Meanwhile, in American
Aggregates, the Commission reversed the Judge’s denial of a settlement, including
the removal of the S&S designation, solely because the Judge had failed to
consider the relevant factual support provided. Am.
Aggregates, 42 FMSHRC at 576–79. Nothing in that case supports the parties’
broad, sweeping position that the Secretary’s decision to remove an S&S
designation in a settlement constitutes unreviewable prosecutorial discretion.

B.
Parties
must provide sufficient reasoning and justification to support the removal of
an S&S designation in a settlement motion.

Long-standing Commission caselaw
holds that Commission Judges must review all settlements of citations. The
Commission has consistently required its Judges to consider reasoning and
justifications that are both substantive and relevant to proposed modifications
before a motion to approve any settlement may be granted. See, e.g., Solar
Sources Mining, LLC, 41 FMSHRC 594, 601, 605, 606 (Sept. 2019) (reversing
Judge’s determination
that the parties presented no justification
to support settlement, when the parties “actually presented relevant facts,” including the non-applicability of the standard); Hopedale Mining, LLC,
42 FMSHRC 589, 597-98 (Aug. 2020) (reversing the Judge’s settlement denial
because the Secretary had provided relevant justification in part to support
the lowering of negligence and gravity).

Here, the Secretary failed to
submit sufficient support showing why Citation No. 9563253, alleging a failure
to maintain machinery in safe operating condition, was not S&S. The parties
stated that the emergency stop switch on the cited feeder breaker was “inoperable.”
Mot. to App. Settlement at 4; Amended Mot. to App. Settlement at 4. The parties
provided information that the area around the feeder breaker had sufficient
room for miners to work and travel and the feeder breaker had reflective tape
showing its boundaries. Id. While such facts might show compliance with
other safety standards, such information does not show that the hazard
contributed to by the cited violation itself was decreased or eliminated. As
the Judge found, these “conditions do not address the hazard – inability to
stop the machine in an emergency,” and do not adequately support the
modification to Citation No. 9563253 as non-S&S. Order at 3; see Sec’y
of Labor v. Consolidation Coal Co., 895 F.3d 113, 118 (D.C. Cir. 2018).

Although Judges need not engage in
fact-finding, weighing conflicting evidence, or making credibility
determinations, they must still “probe gaps or inconsistencies in the
explanation offered in support of a settlement motion.” Hopedale Mining,
42 FMSHRC at 595; see also Solar Sources Mining LLC, 41 FMSHRC at
602 (stating that Judges are “expected to . . . determine whether the facts
support the penalty agreed to by the parties”). Here, the parties failed to
provide the Judge with a sufficient justification for why the citation alleging
an inoperable emergency stop switch was not an S&S failure to maintain safe
operating machinery under AmCoal I.[5]

In sum, we
conclude that sections 110(k) and 110(i) of the Mine Act demonstrate an intent
to circumscribe the Secretary’s enforcement discretion and that they supply a
meaningful standard of review to evaluate the Secretary’s removal of S&S
designations in settlement proceedings. We find unpersuasive the Secretary’s
arguments to the contrary.

IV.

Conclusion

For
the reasons stated above, we hold that the Secretary does not possess
unreviewable discretion to remove an S&S designation from a contested
citation without the Commission’s approval under section 110(k) of the Act. Further,
we hold that the parties must provide sufficient factual support to remove an
S&S designation under such circumstances. We therefore conclude that the
Judge did not abuse his discretion by denying the settlement motion. Accordingly,
we affirm the Judge’s denial of the motion and remand the case to the Judge.

/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:

Lorna M. Waddell,
Esq.

Dinsmore &
Shohl LLP

215 Don Knotts
Blvd., Suite 310

Morgantown, WV 26501

[email protected]

Emily Toler Scott

Counsel for
Appellate Litigation

Office of the
Solicitor

U.S. Department of
Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

April Nelson, Esq.

Associate
Solicitor

Office of the
Solicitor

U.S. Department of
Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[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]

Chief
Administrative Law Judge Glynn F. Voisin

Office of the
Chief Administrative Law Judge

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative Law
Judge Michael Young

Office of the
Chief Administrative Law Judge

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

[1]
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 or
health hazard . . . .”

[2] Section 110(k)
provides in relevant part:

No 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. § 820(k).

[3]
On September 10, 2024, the Secretary appealed the Commission’s decision in Knight
Hawk to the United States Court of Appeals for the District of Columbia
Circuit. On October 22, 2024, the Secretary filed an unopposed motion with the
Commission seeking to hold this case in abeyance pending a decision from the
D.C. Circuit in Knight Hawk. S. Mot. at 1. After considering the
Secretary’s motion and the arguments therein, the motion for stay is hereby
denied.

[4]
30 C.F.R. § 75.1725(a) provides that “Mobile and stationary machinery and
equipment shall be maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service immediately.”

[5]
As in Knight Hawk, we reject the Secretary’s argument that the Act’s
split-enforcement scheme precludes Commission review of the Secretary’s S&S
decisions during settlement proceedings. 46 FMSHRC at 573-74. We further hold
that the Secretary’s remaining policy arguments relying on fairness to
operators, public confidence in Mine Act enforcement, and EAJA considerations
are not sufficiently compelling reasons to withhold Commission review of
S&S removals in settlements. Id. at 574-75.