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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

June 16, 2023

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

ORDER

BY THE COMMISSION: 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act”). On June 9, 2023, the Secretary of Labor’s Mine Safety and Health 

Administration (“MSHA”) filed a Petition for Discretionary Review seeking review of the 

Judge’s May 11, 2023 Order denying the parties’ motion to approve settlement of the captioned 

matter. The Judge stated that “[t]he parties should anticipate that the matters addressed by the 

motion will be resolved at hearing . . . .” Order at 2. 

Although the Secretary titled her filing as a Petition for Discretionary Review, we 

conclude that her filing is more aptly described as a petition for interlocutory review. That is 

because the Judge’s Order is not a final decision and thus the Commission is unable to consider a 

petition for discretionary review filed pursuant to section 113(d) of the Mine Act, 30 U.S.C. § 

823(d) and Commission Procedural Rule 70.1

 See Sec’y of Labor on behalf of Reuben Shemwell, 

35 FMSHRC 2056, 2057 (July 2013) (“[s]ection 113(d) of the Mine Act, 30 U.S.C. § 823(d), 

only allows for review of final decisions.”).

However, pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the 

Commission may review a Judge’s ruling, prior to the Judge’s final decision in the case, if 

certain conditions are met. According to Rule 76(a)(1), the Judge must certify that his 

interlocutory ruling involves a controlling question of law and that immediate review will 

1 Commission Procedural Rule 70 implements section 113(d) of the Mine Act and sets 

forth the provisions under which a party can seek relief before the Commission from a final order 

of an administrative law judge. 29 C.F.R. § 2700.70. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v. 

CONSOL MINING COMPANY LLC

:

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 : 

 : 

 : 

 : 

 : 

:

Docket No. WEVA 2023-0141 

A.C. No. 46-09569-568207
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materially advance the final disposition of the proceeding. Or, in the alternative, the Judge must 

deny a party’s motion for certification of the interlocutory ruling to the Commission, and then 

the party must file with the Commission a petition for interluctory review within 30 days of the 

Judge’s denial of such motion. In the present case, the Judge has neither certified the case for 

interlocutory review, nor has the Secretary initially sought such certification by first filing a 

motion with the Judge.

Accordingly, because the Secretary has filed for review of a Judge’s interlocutory ruling

with the Commission, prior to first filing a motion for certification with the Judge, we DENY the 

petition for interlocutory review without prejudice.2 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

2 This case consists of a total of six citations. Currently pending before the Judge is a 

motion to bifurcate this matter into two cases: one case concerning the four citations which are

the subject of the denied motion to approve settlement and the second case consisting of the two 

additional citations that are scheduled for hearing on July 25, 2023. Bifurcating this matter into 

multiple cases, with discrete docket numbers, would both facilitate potential Commission 

interlocutory review and prevent any unintentional delays leading up to the scheduled hearing on 

the unresolved citations. 
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Distribution:

Emily Toler Scott,

Counsel for Appellate Litigation

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety & Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Robert S. Wilson

Office of the Solicitor

U.S. Department of Labor, MSHA

201 12th Street, Suite 401

Arlington, VA 22202

wilson.robert.s@dol.gov

D. Cass Trent, CLR

U.S. Department of Labor, MSHA

4499 Appalachian Hwy

Pineville, WV 24874

trent.david@dol.gov

Jim McHugh, 

Hardy Pence LLC,

10 Hale Street, 4th Floor

P.O. Box 2548

Charleston, WV 25329

jmchugh@hardypence.com

Craig Aaron, 

CONSOL Energy Inc.,

275 Technolgy Drive, Suite 101

Canonsburg, PA 15317

craigaaron@consolenergy.com

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov
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Administrative Law Judge Michael G. Young,

Federal Mine Safety and Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Ave, NW, Suite 520N

Washington, DC 20004

myoung@fmshrc.gov