Working Alone, Metal/Nonmetal Mine Exams Are Subjects of MSHA Outreach

MSHA personnel will reach out next month to mine management and miners during inspections and other visits about best practices to follow while working alone, agency officials advised during a Tuesday conference call for training specialists and other stakeholders.
Meanwhile, prospects appeared likely for at least a 2-month delay in enforcement of MSHA’s new final rule on safety examinations in metal and nonmetal mines.

Enforcement of Examination Rule May Be Postponed
The agency last month proposed delay of the effective date of its final rule on workplace examinations in metal and nonmetal mines that was issued Jan. 23. A postponement from May 23 to July 24 was proposed, based on an Executive Order from the White House, “Regulatory Freeze Pending Review.”
A comment period on the proposed extension closes Wednesday.
MSHA Deputy Assistant Secretary for Operations and acting agency chief Patricia Silvey could not predict on the agency’s pending decision. “We got a lot of comments, trust me,” Silvey said, however, in response to a question.
No enforcement will take place before the final effective date, whatever the date turns out to be, Silvey emphasized.
The docket at the website Regulations.gov displayed more than 90 comments on the MSHA delay proposal, some of them filed anonymously. A number of commenters addressed the content of the standard rather than limiting their input to the proposed time extension.
The executive order created a freeze on new regulations “[i]n order to ensure that the President’s appointees or designees have the opportunity to review and new or pending regulations.” It was signed on Jan. 20 by Reince Priebus, White House chief of staff and assistant to the President. The order was filed with the Federal Register on Jan. 23 and published Jan. 24.
Among other provisions, the executive order directed that agencies to suspend effective dates of recently published rules for at least 60 days from the date of the order. “Where appropriate and as permitted by applicable law, you should consider proposing for notice and comment a rule to delay the effective date…beyond that 60-day period,” it stated.
The order also told agencies, “[Y]ou should consider potentially proposing further notice-and-comment rulemaking” in cases where “the effective date has been delayed in order to review questions of law, fact or policy.”
MSHA’s proposal to extend the effective date did not mention any issues of law, fact or policy but referenced the agency’s intention to “develop and distribute additional compliance assistance materials.”
Beside posting them on its website, the agency “would make these compliance assistance materials available at a number of information stakeholder meetings at various locations around the country,” the proposal stated. “MSHA also understands that mine operators may need time to adjust schedules, develop additional recordkeeping capacity, and in other ways modify the way they currently do business do comply with the rule.”
The proposal for delay also suggested that a longer postponement could be possible.
“As part of the outreach and compliance assistance process, MSHA would consider issues raised by stakeholders and consider further extending the effective date in order to determine is these issues can be reasonably addressed though compliance assistance and training,” the document stated.
Metal and nonmetal mine operators currently, under §56/57.180002, are required to have a competent person conduct a safety examination in each workplace at least once per shift. The new rule requires that these exams be done in each workplace before the start of work there, requires action to correct any hazards found, stipulates that miners must be informed about hazardous conditions affecting them, and requires more detailed recordkeeping. The rule was proposed in June 2016, with four public hearings held and a period for written comments extending through September.

Five Miners Working Alone Have Been Killed in 2017
Of eight miners fatally injured so far this year, five were at work out of sight and hearing of others, MSHA reported.
Accidents while working alone accounted for all three of the fatal injuries so far this year in metal and nonmetal mines.
Ronald Trich Jr., who worked in the underground Linwood limestone mine in Scott County, Iowa, was missed only when he failed to return home on the evening of Jan. 25 and his wife contacted mine officials. He was found early the next morning in an abandoned area beyond a barrier, where material had fallen in on him. Two employees who would normally have been monitoring the mine’s check-in and check-out system were both away from work that day, accident investigation program manager Larry Trainor revealed during the conference call.
Julio Flores, he independent owner-operator of an over-the-road transport, was fatally engulfed in sand as he raised the truck bed while standing at the rear of his vehicle on March 14 at the Trinity Materials Inc. Cottonwood #1204 sand and gravel pit in Kaufman County, Texas. Flores had previously approached the mine scales in the loaded truck. He was told to go back and dump the material so that the scale operator could determine the weight for the empty vehicle first. Flores was uncovered about an hour after being discovered missing.
Steve Justice died on a Friday evening, March 24, but his death was discovered only the next Monday morning. Justice, a crusher operator, lived on the property of the Black Rock Services Bonito Pit, a sand and gravel operation in Valencia County, N.M. Pinned by his own truck against a diesel generator, he was not immediately missed due to a gap in communication with a guard at the site, officials revealed. Apparently he had left the truck in gear when exiting he vehicle to shut off the generator.
Two of the five coal miners dying of on-the-job injuries so far in 2017 also were working in isolation.
Ray Hatfield Jr. became fatally entangled in a moving underground conveyor while working alone in an area won January Jan. 26 at the R & C Coal LLC #2 Mine in Pike County, Ky. Mine height in the area measured 2 feet 6 inches, according to a preliminary report. He was positioned between a guard and the belt drive when a roller caught him.
On Feb. 27, preparation plant attendant Jason Matthews reportedly was trying to repair a plate press used to squeeze water out of coal slurry when he slipped through a gap in a guard at the Chestnut Land Holdings Bishop Impoundment Area in McDowell County, W.Va. Matthews fell more than 18 feet and landed on a moving belt that held coal refuse. He was carried 55 feet and found lodged in a transfer chute, said Marcus Smith, chief of the coal mine accident investigation program.
Additional serious injuries have involved miners working out of sight and hearing of others. A welder, jumping off a ladder, fell and was impaled on a pry bar that someone else had left standing upright, Trainor said. At a coal mine, bulldozer operator sustained broken ribs when his machine rolled off a highwall edge, Smith reported.
Starting May 1, MSHA personnel will discuss safe practices for working alone as they visit mines for regular inspections and training purposes, said Marvin Lichtenfels, deputy administrator for metal and nonmetal mine safety and health. No extra inspections are planned and no changes are being made in existing MSHA rules that govern working alone, officials indicated.
In underground metal and nonmetal mines, §57.18025 specifies, “No employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless his cries for help can be heard or he can be seen.” Governing surface mines and surface areas in the metal and nonmetal mining sector, §56/57.18020 states, “No employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen.”
Coal mines do not have similar standards.
MSHA officials could not say to why the mining industry has seen this cluster of accidents that involved working alone, nor did they take issue with the practice itself.
Kevin Stricklin – currently acting MSHA administrator for metal and nonmetal mines as well as the regular MSHA administrator for the coal sector – said that whether miners need to work alone is “up to the operator. We just want everyone to be as safe as they can when they’re doing it.”

Best Practices Recommended By MSHA

For Mine Operators
• Make an assessment to determine if the task can be safely completed by a miner working alone.
• Provide training to assure the miner can safely complete the task while working alone.
• Provide the miner with clear direction regarding any limits to work that can be completed while working alone.
• Train miners to conduct risk assessments and encourage them to always conduct a risk assessment before work begins (SLAM RISKS). [“SLAM” stands for Stop, Look, Analyze, Manage.]
• Know where the miner will be at all times.
• Establish and follow routine communication procedures [for example, by radio].
• Account for miners working alone at intervals appropriate for the job assignment.
• Account for all miners at the end of each job assignment and at the end of each work shift.

For Miners Working Alone
• Think about the task: Do you have adequate training, knowledge, skills and equipment to do the job safely? Do you need help?
• Always inform a responsible person where you will be working and traveling in he mine
• Before beginning any task, identify hazards (SLAM RISKS).
• Can you correct or otherwise isolate the hazard(s)? If not, report the hazards to your supervisor.
• Always use the proper tools or equipment to do the job.
• Don’t take shortcuts, do the job safely.
• Follow established communication procedures.
• Use established check-in/check-out procedures to assure you are accounted for.
• Remember, it’s your safety! Protect it!

Vol. 24, No. 1

In this issue …

Accidents: Worker severely hurt by falling material at Apex Quarry and Cement Plant… pg.1
Two seriously hurt in conveyor incident at Patriot Mining No. 2…pg. 3
Supervisor seriously injured among other incidents at Powellton #1…pg. 4
Driller loses two fingers at Tate Marble Quarry…pg. 5
— Criminal Proceedings: Reckless disregard of Mine Act can lead to criminal charges…pg. 5
— Discrimination: EEOC, Cline companies settle sex discrimination lawsuits…pg. 7
Newmont found to have fired employee for making hazard complaints to MSHA….pg. 8
Judge upholds fine for failing to promptly reinstate fired miner…pg.10
CalPortland sale brings up successorship issues, questions of privilege in discrimination case… pg.11
Veris Gold discrimination case reassigned to second judge…pg. 14
— Fatalities: MSHA informed 13 days after fatal accident at Buckhorn Gold Mine…pg. 5
Miner killed at Linwood Mine apparently sought crystals…pg. 17
R & C Coal, with over $85,000 in overdue fines, has fatality at #2 mine …pg. 17
Five unwarrantable failures found in double fatality at Harmony Mine & Mill…pg. 18
Machine operator died after proximity component was dropped in Dotiki Mine…pg. 21
Mining industry sets new low fatality record in 2016… pg. 24
— Part 50 Reporting: Eye injury reportable where miner could not return to work for remaining shift…pg. 27
— Review Commission Orders and ALJ Decisions…pg. 29

Mine Safety Appears Low-Profile Issue With Administration, Committee

The safety and health of miners received no specific mention at the March 22 confirmation hearing held by the Senate Committee on Health Education, Labor and Pensions with Alexander Acosta, nominee for Secretary of Labor.
In his prepared testimony, Acosta highlighted the issue of unemployment, specifically job exports, U.S. jobs filled by workers from abroad, and a “skills gap,” between U.S. workers’ qualifications and available U.S. jobs. During his presidential campaign, Donald Trump promised to fight job exports.
“Helping Americans find good jobs, safe jobs, should not be a partisan issue,” Acosta said in prepared testimony. “…Congress has enacted workplace safety laws…[I]f confirmed, I will work to enforce the laws under the Department’s jurisdiction fully and fairly. As a former prosecutor, I will always be on the side of the law and not any particular constituency.”
A 21% cut in overall Department of Labor funding for fiscal 2018 has been proposed by the Trump Administration in a summary document, which also made no specific mention of miner safety and health. The “skinny budget” indicated that a portion of the Labor cut would come from job training grants but left the greater portion unspecified.
A more detailed White House budget proposal is expected later this spring.
Acosta currently is Dean of the College of Law at Florida International University in Miami, Fla. From 2005 through 2009, he served as U.S. Attorney for the Southern District of Florida. Also as part of the George W. Bush administration, he headed the Civil Rights Division in the U.S. Department of Justice and before that, was a member of the National Labor Relations Board.
Also a clerk for Samuel Alito, when the Supreme Court justice was a judge with the U.S. Court of Appeals, Acosta has been described by Sen. Mike Lee (R-Utah) as “a good strong conservative.” Among other endorsements, his nomination has been praised by Leonard Leo, executive vice president of the Federalist Society, according to materials distributed by staff at the committee hearing.
Acosta was the child of immigrant parents who struggled to earn a living in the U.S. after they “fled Cuba in search of freedom,” he stated in his remarks. “…I am here today because of them. My success is their success.”
Committee Chairman Lamar Alexander (R-Tenn.), in his opening remarks said that the
Secretary of Labor should properly be titled “Secretary of the Workforce” because of the small percentage of U.S. workers currently represented by labor unions. He listed automation, globalization and terrorism among the causes of employment shrinkage. He also complained of a “regulatory avalanche.”
Ranking Member Patty Murray (D-Wash.) Wanted to know if Acosta would “withstand inappropriate political pressure.” The Secretary of Labor “must be an independent voice,” and should “stand up for workers,” she emphasized.
Under questioning by Sen. Elizabeth Warren (D-Mass.), Acosta repeatedly declined to commit to enforcement of a new OSHA silica standard that was finalized last summer, noting that the White House has ordered a review of all regulations. On Feb. 24 the White House issued a “presidential Executive Order on Enforcing the Regulatory Reform Agenda” that calls for each executive agency to designate a Regulatory Reform Officer to “evaluate existing regulations…and make recommendations…regarding their repeal, replacement, or modification.”
The silica rule’s requirements were due to be phased-in over a 5-year period, starting this June. Besides the silica standard, other recent Labor Department rules concerning overtime pay and the duties of investment advisors were discussed in the hearing.
When the White House has dictated to the Department how to re-evaluate a final rule, “that criteria really regulates…the Department of Labor’s approach to the rule,” he said. To Sen. Chris Murphy (D-Conn.), who questioned enforcement of rules generally during review, he said, “We will enforce all rules…I believe…assuming there is no stay.”
“I believe in a unitary executive,” Acosta also told Murray. “Ultimately we have a boss.” He also stated, “I’ve seen pressure, and I don’t foresee” any occasion to “bow to inappropriate pressure,” he stated. If “we feel that we can’t” obey a directive from above, he said, then “we resign.”
Concerning an issue when Acosta headed the Civil Rights Division, and one deputy was found to be applying political criteria in civil service personnel actions, Acosta disavowed this kind of discrimination. “It should never have occurred, and I deeply regret it,” Acosta said.
“I do not have any confidence that you are the right person for the job,” Warren concluded after pressing him further about his commitment to the new regulations in a second round of questioning.
Senators of both parties wanted input on how Acosta would handle the prospective draconian budget cuts. Acosta indicated that, to the extent given latitude, he was leaning against across-the-board cuts or zeroing-out of entire program areas but might look to support statistically proven activities on a case-by-case basis. For example, some Job Corps centers that are proven effective might be maintained and others closed that have a record of problems.
He expressed support in a general way for maintaining OSHA inspector presence in what might be underserved areas, and for the work of the Women’s Bureau. He also voiced support for maintaining uniform Bureau of Labor Statistics procedures.
He also said, however, when pressed to say that maintaining the Women’s Bureau would be a priority, “If everything becomes a priority, then things are no longer priorities.”
Among other interchanges, several Senators praised Job Corps centers and other successful programs in their states and hoped that they could be maintained. Sen. Mike Enzi (R-Wyo.) suggested that the voluntary VPP program administered by OSHA be expanded to include smaller businesses. Sen. Lisa Murkowski (R-Alaska) expressed hope that a fix could be found to smooth out the visa program that provides foreign workers for seasonal fisheries in the state. Sen. Al Franken (D-Minn.) brought up future pension plan defaults, which Acosta called “an issue that has not yet been solved.” Sen. Susan Collins (R-Me.) praised the Training Adjustment Assistance Program and noted that “older workers…are in many ways the forgotten story.” Senators of both parties agreed that corrective action is needed on the “sub-minimum wage” paid to some disabled workers. Sen. Pat Roberts (R-Kans.) said that he hears from constituents “who feel that they’re being ruled and not governed” and asked concerning regulations, “Can we get a cost-benefits yardstick that makes sense?” Sen. Todd Young (R-Ind.) brought up the difficulties of working couples finding adequate child care, especially in the new “gig economy. ” No questions came up concerning Mine Safety and Health Administration programs.
Sen. Tim Kaine (D-Va.) pressed Acosta, based upon a Washington Post article, about a non-prosecution agreement Acosta’s office arranged while he was a U.S. Attorney, involving a billionaire sex offender. Acosta explained that federal involvement had yielded stronger consequences for the offender than state action would have done alone. He disavowed any support for unusually lenient sentencing arrangements ultimately entered into by the state.
Kaine wanted to know why the non-prosecution agreement was concealed from the public at the time. Acosta said that there was a “time when keeping something confidential” was regarded as normal, but said he recognizes today, “By something not looking public it is looked at with suspicion.”
The fact that miner safety and health took a back seat might be due to the absence of recent front-page news. The last major mine disaster in the U.S. was the Upper Big Branch mine explosion, which took 29 lives on Apr. 10, 2010. That tragedy resulted in the unprecedented criminal conviction and prison time for a company CEO, Donald Blankenship, over his role in the willful violation of mine safety requirements. Last year, for the third year in a row, the U.S. mining industry achieved its safest year on record, in terms of fatality numbers. In all, 26 U.S. miners died from workplace accidents in 2016.
Immediately after the confirmation hearing, Acosta walked away without responding to a question from MS&HN about the potential impact of proposed budget cuts on mandatory Department activities, which would include MSHA “four and two” inspections.
A committee vote on Acosta’s nomination was not yet scheduled. The hearing record was to remain open for 10 days.
An earlier nominee for the Secretary of Labor job, Andrew Puzder, withdrew from consideration after more than one hearing postponement.

4th Circuit Upholds Blankenship’s Conviction

In shooting down an appeal by criminal defendant and ex-coal company executive Donald Blankenship, the U.S. Court of Appeals for the 4th Circuit ruled that there were no reversible errors committed by the U.S. District Court Judge Irene Berger and the jury that properly convicted him of criminally violating the Mine Act for violations leading up to the April 2010 explosion that killed 29 miners in Montcoal, W.Va.

In several instances throughout the 34-page decision, the court cited the Mine Act’s legislative history, and determined that reckless disregard of the Mine Act’s provisions can amount to criminal behavior such as in this case.

The court agreed that Blankenship was aware of the violations at the Upper Big Branch Mine, and received daily reports showing the numerous safety violations. The court said he received warnings from a senior Massey Official about the risks posed by the violations, but pressed for more production as the miners struggled to keep up with the mandatory mine safety regulations. Despite this, the court also noted that staff was cut “less than two months before the explosion, a decision that Blankenship would have had to approve given his close supervision of mine operations and staff.”

Blankenship, along with the Illinois, Ohio and Virginia Coal associations first argued to the court that the indictment against Blankenship was insufficient, and should have been dismissed because it did not cite specific mine safety regulations that he conspired to violate. Although the indictment did not cite specific regulations, it did include a 35-page background that identified violations of mine ventilation regulations, examination violations, roof and rib support violations, and recurring accumulations of explosive coal dust. In addition, “it tracked the statutory language verbatim.”

Blankenship also argued that his attorneys should have been able to recross-examine UBB Coal Group President Chris Blanchard, after Blanchard claimed that Blankenship said it was “cheaper to break the safety laws and pay the fines than to comply.” Blankenship said this statement amounted to “new evidence.” However, this issue was “effectively dealt with on cross-examination or cumulative of other evidence introduced at trial,” the 4th Circuit said. Blankenship’s cross examination of Blanchard lasted almost five days, and there was extensive opportunity during this time to examine Blanchard. There were also other witnesses that made similar statements, and also memoranda introduced telling Blanchard to reopen a section of the mine and “run coal,” despite the section lacking mandatory ventilation controls.

A large portion of the decision focused on what is meant by a “willful” violation, and “reckless,” and whether someone’s reckless conduct can lead to a criminal charge. “Reckless disregard” or “plain indifference toward” a known legal obligation can constitute “criminal willfulness” the court said.

“A single, or even a few, inadvertent errors… may not amount to “willful” failures… Yet at some point, when such errors continue or even increase in the face of repeated warnings given by enforcement officials, accompanied by explanations of the severity of the failures, one may infer as a matter of law that the [person] does not care about the legal requirements. At that point, the failures show the [person’s] plain indifference, and therefore becomes willful….Not caring about adherence to legal requirements amounts to criminal willfulness,” the court said. In this case, Blankenship was repeatedly informed of safety violations at Upper Big Branch, and nothwithstanding that knowledge, Blankenship chose to prioritize production and pay fines rather than to take steps necessary to prevent the violations from continuing.”

For purposes of the Mine Act’s criminal provisions, “willfullness encompasses “reckless disregard,” the court said, in citing previous 1969 Coal Act case law from the 6th Circuit in Consolidation Coal, 504 F.2d 1330(6th Cir. 1974).

The court also focused on the legislative history, and the problems of bringing “habitual and chronic violators of the law into compliance.” For purposes of the Mine Act’s criminal provisions, “a long history of repeated failures, warning, and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfullness,” the court said.

Blankenship and the coal associations had argued that Congress could not have intended to hold mine operators criminally liable for making budgeting and business decisions about how to allocate resources between production and safety compliance.

The court disagreed noting the legislative history of the Mine Act contradicts this argument. “Congress repeatedly stated that the Mine Act’s enforcement provisions were designed to deter mine operators from choosing to prioritize production over safety compliance on the ground that it was cheaper to pay the penalties than strive for a violation-free mine…. To that end Congress said that operators should not balance the financial returns to increasing output against the cost of safety compliance.”

The court stressed that penalties should be imposed on corporate officers like Blankenship “because it is often impossible to impose monetary penalties on corporations large enough to deter misconduct… corporate officers who do not face personal liability will treat criminal penalties as a liscense fee for the conduct of an illegitimate business as the government’s evidence showed defendant did here….[A] mine operator cannot immunize himself from criminal liability under [The Mine Act] Sect. 820(d) by characterizing his mine’s repeated failure to comply with safety laws as a consequence of ‘tough decisions’ he had to make weighing ‘production, safety and regulatory compliance.'”

Blankenship also argued that violations inexorably result from mining production, and that it is essentially impossible to mine without a violation. But the court shot back with a strong statement: “Even though inadvertent violations may not amount to willfulness, continuing violations in the face of repeated warning allows a jury to infer criminal intent…. Just as the law holds criminally liable an individual who drives a car with brakes he knows are inoperable, even though he does not intend to harm anyone, so too Sect. 820(d) holds criminally liable a mine operator who fails to take actions necessary to remedy safety violations in the face of repeated warnings of such violations, regardless of whether the operator subjectively wanted the violations to continue.”

The third argument in the defense was that charging a CEO with criminal behavior, where “reckless disregard” amounts to “willfulness,” would lead to a result of operators being less likely to engage oversight over important aspects of safety and regulatory compliance.

This “should not deter mine operators,” the court said. “The Mine Safety Act declares that operators — like [Blankenship] have primary responsibility to prevent unsafe and unhealthful conditions and practices…. ‘Reckless disregard’ means the closing of the eyes to, or deliberate indifference toward the requirements of a mandatory safety standard, which standard [Blankenship] should have known and had reason to know at the time of the violation. Because mine operators have the primary responsibility for safety and regulatory compliance and because an operator acts with reckless disregard if he closes his eyes to safety compliance, or ‘should have known’ that an action or omission would lead to a safety violation, a mine operator cannot avoid liability under Section 820(d) by failing to engage in close oversight over safety and regulatory compliance.”

The bottom line for the court? Blankenship “failed to take actions he knew were necessary to comply with federal mine safety laws. He knew that his actions and omissions would lead to violations of mine safety laws and regulations.”

U.S. v. Donald L. Blankenship, 1/19/2017, CA 4 No. 164193

Vol. 24, No. 1

  • Accidents:
    • Worker severely hurt by falling material at Apex Quarry and Cement Plant (1)
    • Two seriously hurt in conveyor incident at Patriot Mining No. 2 (3)
    • Supervisor seriously injured among other incidents at Powellton #1 (4)
    • Driller loses two fingers at Tate Marble Quarry (5)
  • Criminal Proceedings Reckless disregard of Mine Act can lead to criminal charges (5)
  • Discrimination:
    • EEOC, Cline companies settle sex discrimination lawsuits (7)
    • Newmont found to have fired employee for making hazard complaints to MSHA (8)
    • Judge upholds fine for failing to promptly reinstate fired miner (10_
    • CalPortland sale brings up successorship issues, questions of privilege in discrimination case (11)
    • Veris Gold discrimination case reassigned to second judge (14)
  • Fatalities
    • MSHA informed 13 days after fatal accident at Buckhorn Gold Mine (15)
    • Miner killed at Linwood Mine apparently sought crystals (17)
    • R&C Coal, with over $85,000 in overdue fines, has fatality at #2 mine (17)
    • Five unwarrantable failures found in double fatality at Harmony Mine & Mill (18)
    • Machine operator died after proximity component was dropped in Dotiki Mine (21)
    • Mining industry sets new low fatality record in 2016 (24)
  • Part 50 Reporting Eye injury reportable where miner could not return to work for remaining shift (27)
  • Review Commission Orders and ALJ Decisions (29)

Vol. 23, Nos. 18 & 19

  • Accidents:
    • One burned in electrical explosion at Revelation’s D-7 Osaka Mine (377)
    • One hurt in rib fall at Revelation Energy D-18 Mine (378)
    • Gramercy Aluminum Plant reports 3nd caustic burn incident in 6 weeks (379)
    • Miner sustains fracture in transportation incident at Chino Mines (379)
    • Falling rock fractures miner’s pelvis at Klondex Fire Creek (380)
    • GMS Mine Repair reports two broken legs in 8-day span (381)
  • BlackLung: Operators report 123 cases of black lung disease since January (381)
  • Discrimination:
    • CEO Robert Murray ordered to read prepared statement; mines fined $100,000 (384)
    • Judge fines contractor $35,000 where miner fired after asking for dust mask (385)
    • Commission ALJ dismisses discrimination complaints in Veris Gold bankruptcy case (387)
  • Fatalities:
    • MSHA cites unwarrantable failures in fatal rib fall at Huff Creek No.1 (390)
    • Mine operator cited in unloading fatality at Vista Sand (391)
    • Fine reduced to $7,000 in settlement where
      unwarrantable failure finding overturned (393)
  • Mine Refuges: Commission upholds S&S finding where refuge is 1,110 feet from section (395)
  • Part90: Company that purchased Alpha mine in bankruptcy must reinstate Part 90 miner (396)
  • Review Commission Orders and ALJ Decisions (398)

Vol. 23, Nos. 14&15

  • Accidents:
    • Miner has skull fracture at Marshall County Coal (306)
    • Contractor Falls 14 feet at PR Springs Oil Shale Mine (307)
    • Energized power line burns worker at Permian Frac Sand (307)
    • Worker Has arm crushed at recently-registered Tom Green Renfroe Pit (308)
    • Miner breaks pelvis in 4-foot fall at Tata Chemicals (309)
    • Preparedness found lacking after truck incident at Con-Ag Inc. (309)
    • Maintenance worker burned by kiln dust at Carmeuse Buffington Plant (310)
    • Miner has 3rd-å burns after truck fuel tank explodes at Viburnum #35 (310)
    • Roof fall knocks out miner at Revelation Energy D-16 Mine (311)
    • Air blast from roof fall injures miner at Shoal Creek (312)
    • Two miners sustain fractures in moving long wall equipment at Oak Grove (312)
    • Cyanide release causes evacuation at Midas Mine (313)
    • Quarry Fined $56,500 Where Supervisor Injured in Hopper (314)
  • Blasting and Explosives: Judge upholds fines for supervisor, superintendent for blasting violation (316)
  • Criminal Proceedings: Bresee Trucking fined, owner sentenced in advanced notice case (317)
  • Discrimination: Commission sends case back to ALJ for reassessment of penalties (319)
  • Electrical Equipment: Requirement for yearly checks of extension cords upheld by D.C. Circuit (322)
  • Equipment Safety: MSHA issues warning on drilling hazards (323)
  • Fatalities:
    • One killed on surface by shaft explosion at Road Fork #51 (325)
    • Multiple issues contributed to death from flyrock at Martin Marietta Plant 862 (326)
    • Failure to Set brake and lower blade caused death of dozer operator at Chemours (329)
  • On the Move: New MSHA Superintendent has background in education and military (331)
  • Personal Liability: Superintendent, foreman held liable for housekeeping, examination violations (332)
  • Settlements: In 5-0 Vote: Mine Act clear on commission’s role in settlements (333)
  • Review Commission Orders and ALJ Decisions (337)

Kosmos Cement Contractor Worker Dies in Accident

A 33 year old contract worker at Kosmos Cement in Louisville, KY., was killed on Aug. 9, according to MSHA records.

The worker, Richard Snyder, was attempting to replace the lift cable pulleys on the chute located at the barge loadout. The lower portion of the chute unexpectedly fell, and the lift cable pinned the victim against the chute causing fatal injuries.

The contractor’s death comes only months after Kosmos Cement  voluntarily pled guilty April 20 in U.S. District Court in Kentucky for willfully violating MSHA’s metal/nonmetal safety standard, §56.14100(b). The company was sentenced by Magistrate Judge Colin Lindsay to pay a $400,000 fine related to the accident of contract employee Filipe M. Fiscalla (see 23 MSHN 183).

Fiscalla, 34, died Feb. 21, 2014, from a 51-ft fall into an elevator shaft at the Cemex Inc. Kosmos Cement Co. plant in Jefferson County, Ky. A criminal charge was filed against the company on March 25, 2016.

In that case, United States Attorney John Kuhn said,  “This is one of the worst cases of negligence on the part of a company. Improper maintenance resulted in an employee’s death. This agreement will ensure the proper maintenance of the cement facility and safety for the employees through mandatory on-sight inspections and a written Maintenance Control Program.” The government also agreed in the criminal proceeding to forego prosecution of agents and employees of the company.

Records show for this most recent fatality, Snyder had worked three years at the cement facility for the contractor Huelsman & Sweeney. Fiscalla, who died 30 months ago, had worked for another independent contractor at the plant when he fell to his death.

“I’m More Powerful Than Congress.”

The Bankruptcy Court in Nevada today has told miners Matt Varady and Daniel Lowe that they may not pursue their discrimination claims against Jerritt Canyon Gold, and controller Eric Sprott. The judge said he was issuing an injunction forbidding the two miners from pursuing their discrimination claims, and to prevent their case from proceeding before the Federal Mine Safety and Health Review Commission. When the miners tried to explain their rights under the Mine Act and the legislative history, they claimed the judge told them “I’m more powerful than Congress.” We will get the transcripts as soon as possible.

Commissioners Appear to Reject Secretary’s Challenge to FMSHRC Settlement Authority

Special report by Kathy Snyder
 All five Presidentially-appointed members of the Federal Mine Safety and Health Review Commission indicated this morning that Judge William Moran did not abuse his discretion when he rejected a proposed settlement between MSHA and Murray Energy Corp.’s American Coal Co. when the Secretary declined to provide further specific justification beyond a statement that the parties wished to settle amicably, referencing the “nature of the citations” and “uncertainties of litigation.”
 Preparation of a formal decision is pending, and the Commissioners are free to change their opinion in the written decision.
 The Secretary’s counsel, Sara Johnson, had argued on July 12 before Chairman Mary Lu Jordan, and Commissioners Patrick Nakamura, Michael Young, Robert Cohen and William Althen, that the Commission judges should take a sharply limited role in settlements compared with practice during the past 38 years.
 According to the Secretary, language in Section 110(k) in the Mine Act specifically requiring settlements to be approved by the Commission should be interpreted in the context of a “greater scheme,” and that legislative history referencing past abuses of the former penalty settlement process should be discounted. Johnson, on behalf of the Secretary, used similar arguments that have been rejected by the Commission, and its judges, since 1979.
 Some Commissioners in their discussion today noted that the Secretary had chosen to create a test case challenging some 35 years of practice, in that providing more information to the ALJ – as traditionally done for other initially rejected settlements –  would almost certainly have resulted in a settlement being achieved.
 “[T]his case may go beyond us,” Commissioner Althen observed. In fact, Associate Solicitor of Labor, Heidi Strassler, said in a May 2, 2014, memo, obtained by Mine Safety and Health News, that the Labor Dept. anticipated “interlocutory appeal to the Commission and likely to the Court of Appeals. The legal issues raised in the test case will therefore take several years to resolve,” Strassler told the Labor Dept. attorneys  in 2014.
 On Tuesday, Chairman Jordan asked Johnson to frame the Secretary’s argument and problems after the Commission’s 2012 decision in Black Beauty Coal Co.
 “Counsel, you said you were asking the Commission to revisit the standard…in Black Beauty. How would you describe that standard? And explain what standard you’re proposing,” Jordan asked Johnson.
 “So in Black Beauty,” responded Johnson, “the Commission said that judges have very wide discretion to reject the Secretary’s proposed settlements, and that Section 110(k) doesn’t set any limits on their ability to do that, other than the Secretary’s prosecutorial discretion to vacate a citation. And the Secretary is suggesting that the standard of review should be more limited than that. … So Black Beauty basically allows for sort of unbounded review of proposed settlements, and the Secretary is arguing that some of the factors that judges have been considering are improper after you look at the Secretary’s prosecutorial role under the Mine Act and the Commission’s review role.”
 Jordan responded back that she was concerned over the Secretary’s “boilerplate” language in the settlements, language, which has been sharply rejected in previous decisions, and for years.
 Johnson said that the Commission’s role was to ensure that a settlement did not present any conflict with Constitutional or statutory provisions outside of 110(k).
 Johnson also told the Commissioners on Tuesday that a “settlement can be used as a tool to change operators’ behavior. An ultimate goal of MSHA’s enforcement program is operator compliance with the Mine Act and the standards so that miners can return home safely to their families after every shift. And through settlement, the Secretary can negotiate proactive terms with operators to promote compliance,” Johnson said.
Johnson said the settlement process “allows agencies to self-correct. When MSHA inspectors issue citations and orders, they make the best on-the spot decisions they can with the information they have. And through the process of contest and litigation, additional considerations, whether legal or factual, can be brought to bear. Settlement allows for a dialogue between MSHA and operators so that adjustments to citations orders and penalties can be made that reflect both the law and the facts as supported by the evidence.”
 Commissioner Robert Cohen noted on Tuesday that this particular case did not involve any dispute as to whether the violations existed, or the degree of negligence, and Johnson admitted during the oral argument that, “In this case, the settlement terms were to maintain the paper as written, with a 30% reduction in…penalties, so this case does not make changes to the paper.”
 Johnson also did not address the fact that in this particular case the Secretary sought an across-the-board 30% reduction in the penalties, some of which were repeat violations of the same standard. For instance, the mine had violated §75.202(a) 106 times in the previous two year period; violated three specific safeguards issued under §75.1403  – 67 times, 72 times, and 56 times; or that in a ventilation violation, there was water up to 5 feet deep in a bleeder that took almost a month to pump out.
 In refusing to approve the settlement, Judge Moran issued a scathing rejection. “The idea that every one of 32 citations could warrant a 30% reduction demonstrates, by that fact alone, that the reductions were more in the nature of yard sale, rather than any individualized review meriting, by some impossibly small odds, that each just happened to have earned such an implausibly uniform reduction… There is no legitimate basis to reduce any of these citations. … Nor can it be said that the cited matters are all negligible violations.”
 During Tuesday’s argument Commissioner Young said “everyone seems to acknowledge” that the case before the Commission “is an exceptional case.” MSHA professes a high degree of confidence in its penalty assessment procedure. If no additional facts are presented, “and all of a sudden there’s a 30% discount on that, how is the judge supposed to view that?  I mean, how is it an abuse of discretion” to want additional information?
 Johnson said the Secretary “would urge the Commission to articulate some boundaries.”
 In Tuesday’s argument there was a debate on whether an ALJ should factor in deterrence to try and prevent similar violation, Johnson was adamant that “deterrence” should not be considered by the ALJ when approving or disproving a settlement. “Deterrence is actually a factor that is more appropriate for [MSHA] to consider rather than [a judge].”
 Johnson also repeated several times that the Labor Dept. has limited resources. And while the legislative history of the Mine Act may indicated that the Commission judge’s have discretion to reject settlements, she said the Secretary doesn’t view the legislative history of the Mine Act “as controlling.”
 During Thursday’s meeting, Commissioner Robert Cohen stated, “The issue is really quite simple. The Secretary’s claim amounts to [chanting] the mantra of uncertainty of litigation,’ while the grand theoretic structure of the Secretary’s brief ignored the nature of the Commission as a special entity created by Congress, purposely with explicit authority over settlement agreements.” Cohen said he would be concerned if an ALJ tried to impose his or her own settlement agreement upon the two parties, and said if that were to happen it should be brought to the Commission’s attention, but there has not been any indication this is occurring.
 Johnson also claimed on Tuesday that the number of settlements have gone up dramatically in the past five years, while in fact, commission judges have rejected only .04% – or 18 of 35,501 settlement cases over the last five years.
 But even if the percentage of rejected settlements has not risen, “there are still systemic costs,” Johnson said.
 “They all get approved eventually, right?” Althen asked.
 “Except for this one,” Johnson said, adding, “Not exactly, because in some cases…sometimes the Secretary goes to trial, and then in other cases, the Secretary vacates a citation.
 Althen then asked if the Secretary “would vacate a legitimate violation because they don’t want to try the case?” Would that “have to based on a principled decision that the case should be vacated?…They wouldn’t vacate a citation just because they didn’t feel like trying it?..”
 “If there are weaknesses in the case, and we’re not getting a settlement through and we don’t think we can prevail at trial, that might encourage the Secretary to vacate rather than go to trial,” Johnson said.
 Commissioner Althen also asked Johnson if an ALJ should determine if a settlement is fair, adequate or reasonable given the facts of a case, but Johnson said, “The Secretary has taken the position that adequacy is not an appropriate factor.”
Heckler v. Chaney and Secretary’s Comparisons
 The Secretary in his brief and in the oral argument before the Commission, said that the case Heckler v. Chaney supports the Secretary’s contention that the Secretary’s decision to settle a case is not reviewable by the Commission.
 In Heckler v. Chaney, death row inmates said the use of lethal injection drugs violated the Federal Food, Drug, and Cosmetic Act (FDCA), and requested that the FDA take various enforcement actions to prevent those violations. The FDA refused the request. The inmates then brought an action in Federal District Court against the Secretary of Health and Human Services, making the same claim and seeking the same enforcement actions, but HHS also refused to take any action.
 The U.S. Supreme Court ruled in this case that an agency’s decision not to take enforcement action is presumed immune from judicial review under §701(a)(2). Such a decision has traditionally been “committed to agency discretion,” and it does not appear that Congress, in enacting the APA, intended to alter that tradition. Accordingly, such a decision is unreviewable unless Congress has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion.
 However, in this case before the Commission, MSHA was required by law to take action when inspectors saw violations, and did in fact take action, and the company did in fact contest the cases before the Commission. Parties supporting Commission ALJs’ roles in the settlement procedures, point out that under Sect 110(k), those penalties for those violations can only be compromised, mitigated, or settled with the approval of the Commission, according to Sec. 110(k) of the Mine Act.
 Referring to Heckler v. Cheney, and how it fits into this case,  Commissioner Cohen asked Johnson, “So, your reliance on Heckler v. Cheney assumes no reviewing role. And then you say, ‘Well, there’s some reviewing role because of 110(k),’ and doesn’t that kind of bastardize Heckler v. Cheney, and take it out of its roots, and the specific context that it rose in?”
 Johnson said the Secretary disagreed.
 “When Congress also established the split enforcement scheme in the Mine Act, in addition to 110(k) we have the overall structure of the Mine Act, and the courts have been very clear in that, under that structure, that enforcement authority resides with the Secretary, policy making and enforcement authority is the exclusive provenance of the Secretary, and that the Commission’s role is adjudicatory, fact-finding, a neutral arbiter. And so the kinds of considerations that go into the decision to reach a settlement rather than proceed with an enforcement action are better suited in the Secretary’s enforcement role. And so even though Section 110(k) provides for [Commission] approval, that approval has to be interpreted in the context of that greater scheme, which allocates those distinct and both important responsibilities, but they’re different.”
 Cohen then asked Johnson during the oral argument, “Your entire argument is predicated on the notion that the Commission is analogous to a generalist court, correct?”
 “Yes,” Johnson said, but then Cohen shot back, “You use the phrase ‘generalist court’ repeatedly in your brief. Now how does that square with Section 113(a) of the Act, which provides that the Commission ‘shall consist of five members, appointed by the President by and with the advice and consent of the Senate from among persons who by reason of training, education or experience are qualified to carry out the functions of the Commission under this Act’? The five of us who are up here are not generalist judges. We were appointed because of the qualifications that are set forth in Section 113(a).  Doesn’t that change the equation totally?”
 Johnson answered, “I certainly respect that all of you and the administrative law judges bring expertise about mining to your jobs, and that’s why you’re here…” But Cohen cut in again, “…we bring expertise, we are required by statute, the Senate would not confirm, the President would not appoint us but for this experience.”
Johnson said she was trying to compare the role of the Commission to that of a court.
 “Section 110(k) speaks in the same terms as it does about the Commission’s approval role as it does about the courts’ approval role in settlements,” Johnson said. “So the first sentence of Section 110(k) says that no penalty shall be compromised, mitigated or settled except with the approval of the Commission, but the second sentence goes on to say that final penalties of the Commission shall not be compromised, mitigated or settled except with the approval of the court. And Congress, in speaking of the approval role, gave the Commission and the courts of appeal the very same – it is parallel language, right? And so that strongly suggests that the two roles should be considered similarly.”
 “Okay. But stop there for a second and look at what Congress did” Cohen said. “Your brief contains  10 pages…discussing the legislative history. And it quotes sections of the legislative history. But nowhere in that 10 pages does it mention Congress’s finding that the abuses involved in the unwarranted lowering of penalties as a result of off-the-record negotiations, is why Section 110(k) was created. You never mention in there that Congress found that there were abuses in the settlement of penalties.”
 Johnson finally did acknowledge “there were abuses under MESA…” but Cohen said, “You never mentioned that in your brief. You never acknowledged that there were abuses. Correct?”
 Johnson responded back, “If you’re telling me that we didn’t, I will recognize that.”
 Cohen then continued, “All right. Now, so the same Congress that acted because there were abuses, you’re saying, because of the language in the section, which you analogize to the language in other sections of other acts, you’re saying that Congress did not want any more oversight than what was in those other acts. And it seems to me that what you are in effect saying was that Congress was totally incompetent in passing the Mine Act for one reason, and then writing language which went a totally different direction.”
 “I would submit that Congress did not, in passing the Mine Act and in writing 110(k), did not adopt a policy that disfavored settlements. It says that it recognizes that settlements often serve a valid enforcement purpose,” Johnson answered.
 “And the Commission recognizes that, and approves settlements, thousands of them, correct?” Cohen asked Johnson, who said “the standard in Black Beauty goes beyond the Commission’s adjudicatory role.
 Chairman Jordan then asked of Johnson, “How exactly does it do that?” and Johnson said it was because the judges were “asking the Secretary to show why the original paper should have been lowered…”
 Commissioner Althen then said, “Tens of thousands of settlements have been approved…. So it seems to be what you’re saying is the real problem is not that we can’t settle cases, but the judges are being a pain in the neck about doing it… And so – you’re getting settlements, right? What’s the problem?”
 Johnson said, “there’s three problems with this basis of the compromise requirement. The first is that the basis of the compromise might be bigger than an individual citation. So, in a global settlement, the basis for the compromise might be across multiple citations and not adjusting the gravity or negligence for each individual citation.
 “The second is that the basis of the compromise might be something that’s inappropriate for the Secretary to share with opposing counsel and the judge, so something that implicates attorney-client privilege, or  deliberative process, or government informer privilege. One example might be would be if MSHA has an inspector that retired so we don’t have an available witness. That doesn’t reflect poorly on MSHA, but it does affect our case, and that might increase our likelihood of pursuing a settlement. But to reveal that to operator’s counsel and to the judge means that for all of the other citations out there issued by that same retired inspector, we might be compromised in our ability to get the same deal.
 “And the third problem with this basis of the compromise requirement is that what it really asks the Secretary to do is to polish up the operator’s defenses to make them sound persuasive to the judge…. If the judge denies the settlement, and orders a hearing, then we reveal the weaknesses in our case to the judge, lend credibility, lend legitimacy to what the operator has said, right? And it also means that we’re putting resources into justifying these self-corrections on lower-priority matters rather than aggressively pursuing the higher-priority matters. So for all of those reasons, this basis of the compromise on each individual citation creates problems in individual cases and overall.”
 Some Commissioners indicated at the meeting that they understood the Secretary’s factoring-in practical realities including resource considerations in a decision to settle. However, Commissioner Young also said, “there is a distinction between the public interest and the government’s interest” in some things, including convenience. Young said he was concerned “about the miners who work at the mines, whose interests have to be considered in approving a settlement…. don’t our judges have the duty to ensure that the absent miners who may or may not be party to the case that’s being settled have their interests represented, just as a check-off on the Secretary’s authority – not as a rubber stamp, which is kind of what the class action cases would suggest?”
 “Our position is that the determination, which involves the allocation of resources, the assessment of the strength of the evidence, the decision to proceed with one case over another, and sort of weighing all of those factors together, and figuring out what is most protective for miners, which is MSHA’s interest. That determination is better made by the enforcement agency rather than the Commission, because the Commission is just looking at the individual … reviewing the settlement reached in the individual action,” Johnson said.
 Chairman Jordan asked Johnson, “Congress, don’t you think, put 110(k) in, and we definitely have a role?”
 Johnson said the Secretary is not arguing that the settlements are unreviewable entirely.
 “The courts have been very clear in that, under that structure, that enforcement authority resides with the Secretary, policy making and enforcement authority is the exclusive provenance of the Secretary, and that the Commission’s role is adjudicatory, fact-finding, a neutral arbiter. And so the kinds of considerations that go into the decision to reach a settlement rather than proceed with an enforcement action are better suited in the Secretary’s enforcement role. And so even though Section 110(k) provides for approval, that approval has to be interpreted in the context of that greater scheme, which allocates those distinct and both important responsibilities, but they’re different…. The standard of review that the Secretary’s advancing – it’s not a rubber stamp, there are some teeth in there but they are objective factors to review the settlement rather than putting the Commission in the Secretary’s enforcement bailiwick.”
 That answer, however, was unconvincing to Commissioner Nakamura, who stated at Thursday’s meeting that “the Secretary “has drawn a line in the sand” and that his argument amounted to a “suggestion that we read Section 110(k) out of the statute.”
 Nakamura said the Mine Act “places determination of final penalties with the Commission, even in uncontested cases, while MSHA can only propose a fine.  Even without that section, the Commission would possess inherent authority including the “authority of any tribunal to determine if any settlement is tainted by corruption or collusion,” Nakamura asserted. Section 110(k) has to mean something more than that,” he stated. As to the question of whether the Secretary is the final arbiter of deciding whether a settlement is in the public interest, Nakamura also noted that the Mine Act “equates” the public interest with the interest of the miner and specifically allows miners to question actions by the Secretary.
UWMA Argues in Support of Commission’s Role
 Laura Karr, presenting on behalf of the United Mine Workers, stressed during Tuesday’s meeting that “one of the issues that Congress wanted to solve when they passed the Act was a history of secretive, off-the-record negotiations about settlements…that sometimes gave the appearance of improper collusion between the government and mine operators. So Congress’s response was to create…in the Act a split enforcement scheme under which the Secretary has the power to file charges against operators, withdraw charges and decide to settle charges, but the Commission has the power to do a meaningful evaluation of the settlement proposals and ultimately to approve or reject them. In this case the Secretary’s decided to challenge the system after it being in place and workable for 35 years and argue that they’re not required to give the Commission any of the factual information that is necessary to do that settlement review. In fact according to the Secretary, the Commission can [make?] only the most cursory review of settlement proposals.”
 Commissioner Nakamura asked Karr, “How do you respond to Ms. Johnson’s arguments … [that] sometimes there’s practical problems in telling the judge, publicly saying why it is the agency is settling the case? I mean a lot of us have practiced law before, and we’ve had settlements. Sometimes the reason is, my client lied to me…our case is going to crumble, so let’s get the best settlement we can. And I wouldn’t want to stand in open court and say that. So … how does the Solicitor respond?”
 Karr stressed that over the years, and the numbers indicate that “the Secretary has not had a problem getting around issues like that. … [C]learly in a majority of cases they are able to satisfy the judge’s curiosity, and give the judge enough to feel like he or she can make a reasoned decision on the settlement.” Kar pointed out that in a settlement the Secretary can in fact explain concerns about the case or witnesses, and the judges don’t take “issue with that sort of explanation.”
 Commissioner Althen asked Karr if she thought, in the “real world,” it was fair to assume that the Secretary had “an unlimited budget to try hundreds and hundreds and hundreds of cases?” Althen stressed that the Secretary had to deal with “real world” budget issues. Karr said it wasn’t an issue addressed in their brief.
 Althen asked Karr if the union would accept a “standard of fair, adequate, reasonable and appropriate under the particular facts,” but Karr stressed that the union doesn’t think there needs to be “any single standard,” for the settlements.
 Karr stressed that the union supports the policy and standards used for the last 35 years. Karr said the union was not there to argue for a defined standard on settlements. “What we’re here to do is to defend the right of the Commission to make these decision on and not have the Secretary take over the responsibility of telling the Commission what standard they should apply.”
 Young asked Karr about the possibility of a judge over stepping his or her role.
 “That’s certainly a possibility that’s out there, but the unions would assert that the way to correct that is a case-by-case basis. No one is arguing that the Secretary can’t challenge individual ALJ decisions, to reject settlements, and argument about judge overstepping his bounds and his discretion, we see the Commission is more than capable of resolving those,” Karr stressed. “We know that since the time the Act was passed, the Commission has had a plan in place – its procedural rules – to approve settlements. It’s followed that plan successfully in thousands of cases over the years…. And we know that the legislative history, that Congress had two main reasons for giving the Commission this active role… one being to avoid those secretive, off-the-record, sometimes collusive negotiations that happened under the predecessor statute, and the other to ensure that no settlement occurred without somebody making a reasoned decision that it promotes the public interest in operator compliance.”
 Commissioner Young asked Karr how the Commission was to “ensure without a standard or some kind of recognition of the boundaries of the judge’s discretion that the settlement is appropriate while respecting the Secretary’s policy and prosecutorial prerogative?”
 “Because of the text of 110(k) and the legislative history,” Karr said. “We know that the content of that settlement…that’s not solely a prosecutorial thing. That is an adjudicative process that’s assigned to the Commission.” In terms of individual cases, Karr said the records shows that the “ALJs [are] doing this just fine and it’s worked out for miner safety and health since the Act’s inception.” Karr also stressed that the union wants to see flexibility, and for the ALJs to use “reasoned analysis” as they have done over the last 38 years.
 Karr said the union was concerned that “The Secretary really is trying to take over the Commission’s responsibility of deciding how it is going to approve settlements, how it is going to evaluate them,” and the Secretary has not given any reason as to why his interpretation is better than “the interpretation that the Commission has developed over 35-plus years of practice.”
 In a response to a comment by Commissioner Young regarding Heidi Strasseler’s memo of May 2, 2014, on language that should be placed in each settlement, Karr said, “It clearly was not tailored to the facts at hand, it wasn’t tailored to the citations they were dealing with, and really was not responsive at all to what the judge would ask for…What really happened here?  What was the Secretary’s thought process? How did the Secretary think that this course of action satisfies the purposes of the Act?..A response from the Secretary that ‘I don’t have to give you any factual information at all’ really is not appropriate.”
 Karr also stressed that since the beginning of the Commission, “ALJs have been successfully engaging in dialogue with the Secretary since the Act began successfully getting – even post Black Beauty –  successfully getting information that satisfies judges enough to approve these settlements.”
 “No one [is] challenging [the] Secretary’s discretion to file charges, withdraw or decide to settle, Karr said. “What we are doing is underlining and protecting the Commission’s role…to evaluate and approve those settlements.” Karr said, the Secretary has not given any good argument for upending 38 years of successful settlement practice, and all five Commissioners appeared to agree.
 
Secretary of Labor, MSHA v. The American Coal Co., Docket No. LAKE 2011-13