Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

Consol Pennsylvania said it mailed three contest packets after paying the citations it did not intend to challenge. MSHA received the partial payments but did not receive the contest packets, which had not been sent by certified or otherwise trackable mail. Consol moved to reopen promptly after MSHA issued delinquency notices. The Secretary did not oppose the requests. The Commission found inadvertence, reopened all three assessments, and remanded them, while warning Consol that similar future requests might not be granted.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: Three final assessments were reopened and remanded for further proceedings.
• Key point: Prompt action supported reopening when mailed contest packets disappeared, but operators should use a trackable filing method.

Full text (FMSHRC public release)

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                                

:

:

:

:

:

:

:

:

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

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

Distribution:

Marcy Presto

Consol Energy, Inc.

275 Technology Drive, Suite
101

Canonsburg, PA 15317-6506

[email protected]

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

[email protected]

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

[email protected]

Melanie Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite
401

Arlington, VA 22202

[email protected]

Chief Administrative Law
Judge Glynn F. Voisin

Federal Mine Safety Health
Review Commission

1331 Pennsylvania Avenue, NW
Suite 520N

Washington, DC 20004-1710

[email protected]

[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.