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. WEVA 2022-0176
ADMINISTRATION (MSHA) : A.C. No. 46-09222-548471
:
v. : Docket No. WEVA 2022-0350
: A.C. No. 46-09222-548471
BLUESTONE OIL CORPORATION :
BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners
ORDER
BY THE COMMISSION:
This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018), is before us upon a Commission Administrative Law Judge’s October 31, 2022, certification of his order denying the Secretary of Labor’s motion to approve settlement. See 29 C.F.R. § 2700.76(a)(1)(i). The Judge denied the motion because he concluded that the Secretary had failed to provide factual support for the proposed removal of two citations’ “significant and substantial” (“S&S”) designations.
Commission Procedural Rule 76(a) provides that the Commission “may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that “[i]nterlocutory review by the Commission shall not be a matter of right but of the sound discretion of the Commission.” 29 C.F.R. § 2700.76(a).
Upon consideration of the Judge’s certification, we hereby grant interlocutory review of the Judge’s order denying approval of the settlement and 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, 30 U.S.C. § 820(k).[1]
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 (email):
Mohamed Seifeldein, 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
seifeldein.mohamed.e@dol.gov
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
Scott.Emily.T@dol.gov
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
Nelson.April@dol.gov
Christopher D. Pence, Esq.
Hardy Pence PLLC
10 Hale Street, 4th Floor
PO Box 2548
Charleston WV 25329
cpence@hardypence.com
Wm. Scott Wickline, Esq.
Hardy Pence PLLC
10 Hale Street, 4th Floor
PO Box 2548
Charleston WV 25329
scott@hardypence.com
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue NW, Suite 520N
Washington DC 20004-1710
gvoisin@fmshrc.gov
Administrative Law Judge Michael G. Young
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue NW, Suite 520N
Washington DC 20004-1710
myoung@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@DOL.GOV
[1] As the Judge
recognized in his October 31 order, the same controlling question of law is
currently on review before the Commission in Knight Hawk Coal, LLC,
Docket No. LAKE 2021-0160.