**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVENUE, NW, SUITE 520N**

**WASHINGTON,D.C. 20004‐1710**

 

 

 
| SECRETARY OF LABOR,

  MINE SAFETY AND HEALTH        

  ADMINISTRATION (MSHA)             

 

                        v.

 

CONSOL PENNSYLVANIA 

 COAL COMPANY, LLC                                              | :

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  | Docket No. PENN 2023-0011

A.C. No. 36-07230-559759

 

Docket No. PENN 2023-0012

A.C. No. 36-07416-559760

 

Docket No. PENN 2023-0013

A.C. No. 36-10045-559765 |
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BEFORE:  Jordan, Chair; Althen, Rajkovich, and Baker,Commissioners

 

ORDER

 

BY THE COMMISSION:

Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On October 28, 2022, the Commission received fromConsol Pennsylvania Coal Company, LLC (“Consol”) three motions seeking toreopen penalty assessments that had become final orders of the Commissionpursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).[1]

 

Undersection 105(a), an operator who wishes to contest a proposed penalty mustnotify the Secretary of Labor no later than 30 days after receiving theproposed penalty assessment. If the operator fails to notify the Secretary, theproposed penalty assessment is deemed a final order of the Commission. 30U.S.C. § 815(a).

 

Wehave held, however, that in appropriate circumstances, we possess jurisdictionto reopen uncontested assessments that have become final Commission ordersunder section 105(a). *Jim Walter Res., Inc*., 15 FMSHRC 782, 786-89 (May1993) (“JWR”). In evaluating requests to reopen final orders, the Commissionhas found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, underwhich the Commission may relieve a party from a final order of the Commissionon the basis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See* 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe guided so far as practicable by the Federal Rules of Civil Procedure”); *JWR*,15 FMSHRC at 787. We have also observed that default is a harsh remedy andthat, if the defaulting party can make a showing of good cause for a failure totimely respond, the case may be reopened and appropriate proceedings on themerits permitted. *See Coal Prep. Servs., Inc*., 17 FMSHRC 1529, 1530(Sept. 1995).

 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicates that one proposed assessment (No. 000559759)was delivered to the operator on August 6, 2022, and two proposed assessments (Nos.000559760, 000559765) were delivered to the operator on August 8, 2022. Theassessments became final orders of the Commission on September 6, 2022, andSeptember 7, 2022, respectively. 

 

On August29, 2022, MSHA received three partial payments from the operator related tocitations that the operator chose not to contest on the three proposedassessments. Consol asserts thatit also mailed its three notice ofcontest packets on August 15, 2022. MSHA sent Consol one delinquency noticerelated to Proposed Assessment No. 000559759 on October 21, 2022, and two delinquency notices relatedto Proposed Assessment Nos. 000559760 and 000559765 on October 24, 2022,indicating that MSHA had not received the operator’s contests.

 

It appears that the operator’s notices of contests were not mailed via certified mail or other trackable mail service. The Secretary does not oppose the requeststo reopen but urges the operator to take steps toensure that future penalty contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. §100.7 and the Commission’s procedural rules.

 

Havingreviewed Consol’s request and the Secretary’s response, we find that the noticesof contest were not timely received due to inadvertence and that the operatorpromptly filed motions to reopen upon receiving the delinquency notices.[2]In the interest of justice, we hereby reopen this matter and remand it to theChief Administrative Law Judge for further proceedings pursuant to the Mine Actand the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly,consistent with Rule 28, the Secretary shall file a petition for assessment ofpenalty within 45 days of the date of this order. *See* 29 C.F.R. §2700.28.

 

 

 

/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 

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Distribution:

 

Marcy Presto

Consol Energy, Inc.

275 Technology Drive, Suite101

Canonsburg, PA 15317-6506

marcypresto@consolenergy.com

 

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

 

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

 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

 

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

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[1] For the limited purpose of addressing these motionsto reopen, we hereby consolidate docket numbers LAKE 2023-0011, LAKE 2023-0012,and LAKE 2023-0013 because they involve similar factual and procedural issues. 29C.F.R. § 2700.12.

[2] We strongly encourage Consol to take necessary steps to ensure that futurepenalty contests are timely filed inaccordance with the Commission’s procedural rules. Similar requests to reopenuntimely contests may not be favorably considered.