Secretary of Labor v. Consol Pennsylvania Coal Company LLC (ALJ decision, October 26, 2017)

Plain-English summary

PENN 2017-222 contained an inadequate-preshift-examination citation and a coal-accumulation order issued at Consol Pennsylvania Coal's Harvey Mine. The Secretary asked to consolidate it with PENN 2017-223 because several citations in that docket were referenced in or directly related to the May 15, 2017 enforcement actions. Consol agreed that five citations overlapped but argued that six others involved different facts, dates, and witnesses. Judge William B. Moran found that all matters arose at the same mine within an 11-day period and nearly all were issued by the same inspector. He consolidated the dockets for efficiency while directing that the two cases be presented separately in sequence at the combined hearing.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.360(b) and 75.400
• Outcome: PENN 2017-222 and PENN 2017-223 were consolidated for hearing.
• Key point: Related enforcement matters may be consolidated for shared witnesses and evidence while still being presented separately to avoid confusion.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW

COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania

Avenue, NW, Suite 520N

Washington, DC

20004-1710

Phone: (202) 434-9933

| Fax: (202) 434-9949

October 26, 2017

SECRETARY

OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE SAFETY

AND HEALTH                      :

ADMINISTRATION

(MSHA),                        :     Docket No. PENN 2017-0222

Petitioner,                          :     A.C.

No. 36-10045-442362

:    

v.                                                   :     Docket

No. PENN 2017-0223

:     A.C.

No. 36-10045-442362

CONSOL

PENNSYLVANIA COAL                :

COMPANY

LLC,                                              :     Mine: Harvey Mine

Respondent.                      :

ORDER GRANTING MOTION TO

CONSOLIDATE

Before: Judge

Moran

The Secretary has filed a motion to consolidate these

dockets. [1]

Respondent, Consolidation Pennsylvania Coal Company LLC, (“Consol Penn”), has

filed a response in partial objection. PENN 2017-222 involves two matters; a

section 104(d)(1) citation and a section 104(d)(1) order. The first matter, Citation,

No. 9076279, alleges an inadequate preshift examination under 30 C.F.R. §75.360(b). [2]

That citation was issued on May 15, 2017 at Consol Penn’s Harvey Mine, by MSHA

inspector Bryan Yates. In the body of that citation, the inspector states that

the hazardous conditions constituting the basis for the inadequate preshift

examination are referenced in Citation numbers 9076271, 9076272, 9076273,

9076274, 9076278, and Order number 9076280.  

That

last identified alleged violation, Order number 9076280, is the second matter

within PENN 2017-222. It is a section 104(d)(1) order, citing 30 C.F.R. §

75.400. That standard, titled “Accumulation of combustible materials,” provides

that “Coal dust, including float coal dust deposited on rock-dusted surfaces,

loose coal, and other combustible materials, shall be cleaned up and not be

permitted to accumulate in active workings, or on diesel-powered and electric

equipment therein.” 30 C.F.R. § 75.400. Inspector Yates issued the alleged

violation identified in Order No. 9076280, the same day, May 15, 2017, as he

issued the (d)(1) citation, No. 9076279.

The

Secretary’s Motion states that “[s]everal of the citations in PENN 2017-223 are

referenced and directly related to the citations within [docket no. PENN

2017-222].” Motion at 1. The Respondent’s Response concedes that five of the

citations in PENN 2017-223 “either relate to the allegations in the Citation

and Order in Docket No. PENN 2017-222, or were issued on the same date.”

Response at 1. The five related citations are identified by the Respondent as

Citation Nos. 9076271, 9076272, 9076274, 9076276, and 9076278. Id .

However,

Respondent contends that “the remaining citations in Docket No. PENN 2017-223

(Citation Nos. 9076258, 9076263, 9076269, 9076268, 9076270, and 9075864)

involve different dates, witnesses, facts and events which will distract from

the issues in PENN 2017-222 and hamper the presentation of evidence as to the

May 15, 2017 inspection.” Id .

Discussion

All

of the citations and the one order involved in these two dockets were issued to

Consol Penn’s Harvey Mine. In addition, all of the alleged violations were

issued between May 8 and May 18, 2017, an 11 day span of time. Further, save

one, all of the citations and the one order were issued by Inspector Yates and

even for the one citation not issued by Yates, Citation No. 9075864, the

termination of that citation, was issued by Yates.

As

Administrative Law Judge Thomas P. McCarthy noted in Shemwell v. Armstrong

Coal , “[g]iven the likelihood that these cases will involve similar or

overlapping issues, witnesses, and evidence, . . . consolidation . . . would

further the interests of judicial economy and efficiency.” Shemwell v.

Armstrong Coal Co., Inc. , 36 FMSHRC 2352, 2353 (Aug. 2014) (ALJ McCarthy);

2014 WL 4273431, at *1 (FMSHRC August 20, 2014). He further noted that “Commission

Rule 12 states that ‘[t]he Commission and its judges may at any time, upon

their own motion or a party's motion, order the consolidation of proceedings

that involve similar issues.’” Id ., citing 29 C.F.R. § 2700.12. The

Commission has held that “[a] determination to consolidate lies in the sound

discretion of the trial judge.” Id ., citing Pennsylvania Electric

Company , 12 FMSHRC 1562, 1565 (Aug. 1990).

The

same principles apply in this matter. There will be no distraction or hampering  

of the issues because, although the two dockets will be scheduled to be heard

together, they   will be taken seriatim, beginning with PENN 2017-0223 and

followed by PENN 2017-0222.         A conference call will be held soon to set

the hearing dates for these dockets.

Accordingly,

upon consideration of the motion to consolidate and the response thereto, and

in the interest of judicial economy and efficiency in resolving these dockets,

it is ORDERED that the above-captioned dockets be CONSOLIDATED .

SO

ORDERED.

/s/

William B. Moran

William B. Moran

Administrative

Law Judge

Distribution:

Douglas

R. Sciotto, CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100,

Mt. Pleasant, PA 15666

James P.

Hugh, Hardy Pence PLLC, 500 Lee Street, East, Suite 701, PO Box 2548,

Charleston, WV 25329

/KP

[1] It is

DETERMINED that the CLR is accepted to represent the Secretary in

accordance with his notice of appearance, filed September 11, 2017. Cyprus

Emerald Res. Corp. , 16 FMSHRC 2359 (Nov. 1994).

[2] 30 C.F.R.

§75.360 identifies the locations where “a certified person designated by the

operator must make a preshift examination within 3 hours preceding the

beginning of any 8-hour interval during which any person is scheduled to work

or travel underground.” Subsection (b) then lists 10 locations which are to be

examined and an 11 th provision within that subsection lists a number

of standards that are to be included in making the preshift examination of the

identified locations.