Secretary of Labor v. Holcim (US) Inc. (ALJ decision, November 19, 2021)

Plain-English summary

Holcim and the Secretary proposed settling thirteen citations by vacating four, modifying or leaving nine unchanged, and reducing total penalties from $28,148 to $17,843. The Secretary did not provide information supporting the vacaturs or state that they were independent of the rest of the settlement. Judge Michael G. Young treated the contested citations as subject to Commission approval and rejected reliance on unreviewable prosecutorial discretion. He certified for interlocutory review the question whether the Secretary may vacate a contested citation without Commission approval. The Commission later affirmed the settlement denial and remanded this case with four related proceedings.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.76; 30 U.S.C. § 815(d)
• Outcome: The citation-vacatur question was certified for interlocutory Commission review.
• Subsequent review: The Commission affirmed the settlement denial and remanded in lake-2021-0145-commission.
• Key point: Citation vacaturs proposed as part of a settlement were treated as subject to Commission approval.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

1331 PENNSYLVANIA AVE.,
N.W., SUITE 1400

WASHINGTON, DC
20004-1710

TELEPHONE: 202 434-9987
/ FAX: 202 434-9949

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA),

Petitioner

v.

HOLCIM
(US) INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. YORK 2021-0023

A.C.
No. 18-00019-527910

Mine:
Holcim (US) Inc Hagerstown

Facility

ORDER CERTIFYING CASE FOR
INTERLOCUTORY REVIEW

Before:  Judge
Young

This
case is before me on a Petition for the Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). I denied a motion to approve settlement of this docket, and four similarly situated proceedings. [1] The Secretary seeks interlocutory review of all five proceedings, pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76.

This
docket includes thirteen citations issued pursuant to Section 104(a) of the Mine Act. On August 3, 2021, the Secretary submitted a motion to approve settlement. The motion proposed vacating four citations, while modifying or leaving undisturbed the remaining nine citations and reducing the total penalty from $28,148.00 to $17,843.00. See S. Mot. to Approve Settlement at 2 (Aug. 3, 2021).

The
question certified for review and my position have been clearly expressed in the Order Certifying Case for Interlocutory Review for Docket No. WEVA 2021-0294 (Appendix C). As in each associated docket, the Secretary chose not to provide information supporting the vacatur of the contested citations or certify that vacatur was not contingent upon resolution of the remaining citations. Instead, he invoked unreviewable discretion under RBK Construction, Inc. [2] See 15 FMSHRC 2099, 2101 (Oct. 1993) (“ RBK ”). I found that RBK does not control the resolution of this issue, and that the citations proposed to be vacated have been contested before the Commission and are subject to my approval. See Unpublished Order at 2–3 (Sept. 28, 2021) (Appendix A).

Under
Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this interlocutory ruling involves a controlling question of law—whether the Secretary has unreviewable discretion to vacate a contested citation without the Commission’s approval—and that immediate review will materially advance the final disposition of the proceeding.

For
the reasons stated herein, and in my order certifying interlocutory review in WEVA 2021-0294, this interlocutory ruling is hereby CERTIFIED .

/s/ Michael G. Young

Michael G. Young

Administrative Law Judge

Distribution
(by email):

Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of Labor, [email protected]

Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor, [email protected]

John Jerrels, Safety Representative, LafargeHolcim, [email protected]

Attachments:

Appendix
A: Order Denying Motion to Approve Settlement, Docket No. YORK 2021-0023 (Sept. 28, 2021)

Appendix
B: Order Staying Proceedings, Docket No. YORK 2021-0023 (Oct. 19, 2021)

Appendix
C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294 (November 19, 2021)

[1] The others are Docket
Nos. WEVA 2021-0294, LAKE 2021-0145, SE 2021-0134, and SE 2021-0112, all of which were similarly stayed pending certification. See Unpublished Order at 1 n.1 (Oct. 19, 2021) (Appendix B).

[2] “It is undisputed
that the Secretary has prosecutorial discretion to vacate a citation. Secretary of Labor (MSHA) v. RBK Construction, Inc. , 15 FMSHRC 2099 (October 1993).” S. Mot. at 3–4.