July 2022
TABLE OF CONTENTS

COMMISSION ORDERS
07-29-22

COUNTY LINE STONE CO., INC.

YORK 2022-0003

Page 507

ADMINISTRATIVE LAW JUDGE ORDERS
07-11-22

Page 511

HEARING ORDER

i

Review Was Granted In The Following Cases During The Month of July 2022
Secretary of Labor v. Consol Pennsylvania Coal Company, LLC,
Docket No. PENN 2021-0084 (Judge Young, 6/8/2022)
Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc.,
Docket No. WEST 2021-0178 DM (Judge Miller, 6/17/2022)

Review Was Denied In The Following Cases During The Month of July 2022
Secretary of Labor v. County Line Stone Co., Inc., et al.,
Docket Nos. YORK 2022-0003 et al. (PIR Judge Young, 6/28/2022)

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 29, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2022-0003
A.C. No. 30-00026-541944

v.
COUNTY LINE STONE CO., INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2021-0108
A.C. No. 36-07416-539405

v.
CONSOL PENNSYLVANIA COAL
COMPANY LLC
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2022-0260
A.C. No. 46-09495-549775

v.
RAMACO RESOURCES, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
These captioned cases arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act”), and are currently before Administrative Law Judge
Michael G. Young. The Secretary filed a Petition for Interlocutory Review with the Commission
pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76. The Secretary’s petition seeks
review of the Judge’s apparent intention to not grant the Secretary’s motions to approve
settlement. Upon consideration of this petition and the case records, we conclude that because
the Judge has yet to rule upon the Secretary’s motions, the Secretary’s petition is premature. In
the absence of an interlocutory ruling by the Judge, we deny the Secretary’s Petition for
Interlocutory Review.

44 FMSHRC Page 507

More specifically, before the Judge, the Secretary filed motions to approve settlement
which contained a proposal to vacate one or more citations. In response, the Judge asked if the
Secretary could certify that the decision to vacate any citation was independent from, and not
contingent upon, the compromise or settlement of other citations in that case. Instead of
providing the Judge with his requested assurance, the Secretary filed motions for certification of
interlocutory review with the Judge, requesting that the Judge certify to the Commission the
question of the Secretary’s discretion to vacate a contested citation as part of a settlement. On
June 28, 2022, the Judge issued three separate orders, each denying the Secretary of Labor’s
respective motion for certification of an interlocutory ruling.
As the Secretary’s petition to the Commission recognizes, the same controlling question
of law is currently on review before the Commission in Crimson Oak Grove Resources, SE
2021-0112 et al. Specifically, in Crimson Oak, the Commission granted interlocutory review of
“of the Judge’s orders denying the motions and the issue of whether section 110(k) of the Mine
Act authorizes review of the Secretary’s decision to vacate a citation in the context of a
settlement, when the vacatur is contingent upon the resolution of other citations.” Crimson Oak,
Order at 2 (March 2, 2022) (emphasis added). Notably, in these captioned cases which are the
subject of the Secretary’s petition before us, the Judge has yet to issue an order either granting or
denying the Secretary’s motions to approve settlement.
For these reasons, the Secretary’s petition is denied without prejudice.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 508

Distribution (by email):
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.emily.T@dol.gov
April Nelson, Esq. Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Nelson.April@dol.gov
Norman C. Ridley, CLR
U.S. Department of Labor, MSHA
Thorn Hill Industrial Park
178 Thorn Hill Road, Suite 100
Warrendale, PA 15086
Ridley.Norman@dol.gov
Douglas Sciotto, CLR
U.S. Department of Labor, MSHA
631 Excel Drive, Suite 100
Mt. Pleasant, PA 15666
Sciotto.Douglas@dol.gov
Chris A. Weaver, CLR
U.S. Department of Labor, MSHA
604 Cheat Road
Morgantown, WV 26508
Weaver.Chris@dol.gov
Paul T. Sharlow, Esq.
Sharlow Law Firm, P.C.
P.O. Box 641
Jamesville, NY 13078
psharlow@sharlowlaw.com
Craig Aaron
CONSOL Energy Inc.
10000 CONSOL Energy Drive, Suite 100
Canonsburg, PA 15317
craigaaron@consolenergy.com

44 FMSHRC Page 509

Jonathan R. Ellis, Esq.
Steptoe & Johnson PLLC
Chase Tower, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Jonathan.Ellis@steptoe-johnson.com
Colton C. Parsons, Esq.
Steptoe & Johnson PLLC
Chase Tower, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Colton.Parsons@steptoe-johnson.com
Administrative Law Judge Michael G. Young
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
myoung@fmshrc.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 510

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., NW, SUITE N520
WASHINGTON, D.C. 20004-1720

July 11, 2022
ADMINISTRATIVE LAW JUDGE HEARINGS ORDER
Glynn F. Voisin, Chief Administrative Law Judge:
Federal Mine Safety and Health Review Commission Administrative Law Judges are
committed to a high standard to protect the health and safety of all persons who may appear
before them, during the Coronavirus 2019 (COVID-19) pandemic, while continuing the agency’s
mission. As of January 3, 2022, the Commission has resumed in-person hearings, but for the
duration of this order all hearings are subject to its terms.
Commission Judges may, at their sole discretion, hold remote hearings (e.g. via Zoom)
and in-person hearings. Judges also have the discretion to hold a hybrid hearing, that includes
both in-person and video participation. Commission Judges shall exercise this discretion within
uniform parameters as set forth herein. Each Judge shall determine (1) when to use remote
hearings in lieu of in-person hearings and (2) specific safety procedures to be used at a hybrid or
in-person hearing.
In determining the type of hearing, Judges will consider current guidance and safety
factors on a case-by-case basis. Judges will ensure all parties appearing pro se who are required
to participate in a remote hearing have access to equipment, an internet connection, and other
appropriate technology. Prior to conducting an in-person hearing, Judges will schedule a
conference call with the attorneys and representatives of each of the parties to discuss, among
other things, safety considerations for the in-person hearing. Persons who are not comfortable
with travel or appearing in person, may request to attend the hearing via remote access (e.g. via
Zoom). Judges may discuss the agency’s workplace safety plan that outlines travel guidelines,
protocols, and safety measures in conjunction with the CDC Community Levels1.
The Judge will set a hearing location after considering CDC Community Levels using the
CDC COVID Data Tracker2 and the safety and health rules currently in place by the state and
local public health entities. Where community levels are HIGH, Judges are discouraged from
setting in-person hearings. If in-person participants are traveling to attend a hearing, the
community levels of where they are traveling from need to be taken into account as well. In
choosing a courtroom, the Judge will take into consideration the rules and requirements of the
court or hearing facility, as well as all applicable federal, state, and local regulations and
guidelines. If the hearing is to be a hybrid hearing, the Judge will also consider the availability of
internet and technology needs in the courtroom.
1

See https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html

2

See https://covid.cdc.gov/covid-data-tracker/#countyview?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels

44 FMSHRC Page 511

During the prehearing conference, the Judge will consider federal, state, local and
courtroom requirements and inform the parties of such requirements. The requirements apply to
all persons attending the in-person hearing. The discussion will also address who may enter the
courtroom, when, and what safety measures, such as masks and physical distancing, must be
implemented. No person may enter the courtroom, or the witness room without the permission of
the Judge.
In addition to any federal, state, local and facility safety and health rules, all persons
attending in-person hearings are also subject to the below requirements:
•

FMSHRC employees:
o All FMSHRC employees must adhere to the workplace safety plan and CDC guidance
on physical distancing, mask wearing, vaccination attestation, and testing as well as
quarantine, isolation, and official travel requirements.3

•

Visitors and Contractors:
o Visitors are defined as federal employees from other agencies such as the Department
of Labor, spectators, and press. Contractors, for purposes of this order, are defined as
individuals who have been contracted by FMSHRC to attend an in-person hearing for
a specific purpose (e.g. a court reporter creating a transcript).
o Visitors and contractors must attest to their vaccination status using the Certificate of
Vaccination Form when Community Levels are MEDIUM or HIGH. 4 Visitors and
contractors who are considered not fully vaccinated (as defined by the CDC) shall
show proof of a negative COVID-19 test result from a Food and Drug Administration
authorized test taken within three days prior to entry to the in-person hearing when
Community Levels are MEDIUM or HIGH. The Judge shall neither collect
documentation to verify their vaccination attestation nor collect documentation to
verify COVID-19 test results. Additionally, all visitors and contractors must adhere to
the agency’s workplace safety plan and CDC guidance on physical distancing and
mask wearing.

•

Non-government Parties, Representatives and Witnesses:
o Persons who are not visitors or contractors as defined above, and who are parties,
representatives of parties, or witnesses do not need to attest to their vaccination status
3

The employee vaccination requirement in Executive Order 14043 and the contractor
vaccination requirement in Executive Order 14042 are the subject of an injunction issued by a
Federal court. In accordance with OMB Guidance, and pending further notice, FMSHRC will
take no action to enforce the vaccination requirements in those executive orders. The Office of
the Chief Administrative Law Judge will continue to monitor developments on this issue and will
comply with current vaccination policies.
4

The vaccination attestation form can be found on the Safer Federal Workforce website
at https://www.saferfederalworkforce.gov/downloads/CertificationVaccinationPRAv7.pdf.

44 FMSHRC Page 512

to attend an in-person FMSHRC hearing, and Judges shall not inquire into their
vaccination status. However, they must adhere to the agency’s workplace safety plan
and CDC guidance on physical distancing and mask wearing.
Furthermore, in the event an in-person hearing is held in a location where the CDC
Community Level is MEDIUM or HIGH, all persons attending the hearing, including visitors
and contractors, as well as non-government parties, representatives, and witnesses, must present
a completed FMSHRC COVID-19 Screening Tool form for review.5
The Judge may consider all factors, in totality, in determining if a remote hearing will be
held and who may be present for the hearing. No single factor is dispositive.
These procedures shall remain in place until this order is vacated or otherwise modified
by subsequent order.
SO ORDERED.

/s/ Glynn F. Voisin
Glynn F. Voisin
Chief Administrative Law Judge

5

The FMSHRC COVID-19 Screening Tool form is available in Appendix C of the
agency’s workplace safety plan. Individuals who plan to attend a hearing can also obtain a copy
of the form by contacting a Judge’s office.

44 FMSHRC Page 513