1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

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 

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.

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 

May 2, 2023
2

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.
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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.

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

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 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.
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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