**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

 
| 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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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 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]

 

 

 

 

/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:

 

Emily Toler Scott,Esq.

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,Esq.

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, Esq.

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

 

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

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[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. 

[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.