Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

Consol Pennsylvania Coal Company sought to reopen three penalty assessments after contests it said it mailed were not received. MSHA's collection office had received partial payments for the uncontested penalties, but the payments were applied to the wrong citations because the agency did not know which citations Consol intended to challenge. The Secretary did not oppose reopening and urged the company to use the proper contest address in the future. The Commission consolidated the matters, found inadvertent mailing error and prompt corrective action, and reopened all three assessments. It remanded the cases and directed the Secretary to file penalty petitions within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.12 and 2700.28
• Outcome: Three final assessments were reopened and remanded, with penalty petitions due within 45 days.
• Key point: Prompt action after mailed contests went missing supported reopening, but penalty contests must be sent to MSHA rather than the Commission.

Full text (FMSHRC public release)

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 PENNSYLVANIA COAL

COMPANY,
LLC

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Docket
No. PENN 2021-0036

A.C.
No. 36-07230-527799

Docket
No. PENN 2021-0037

A.C.
No. 36-07416-527800

Docket
No. PENN 2021-0038

A.C.
No. 36-10045-527805

BEFORE:    Traynor, Chair;
Althen and Rajkovich, Commissioners

ORDER

BY THE
COMMISSION: 

These
matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”).  On March 1, 2021, 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) of the Mine Act, 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).

Records
of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate
that the proposed assessments were delivered on January 11 and 13, 2021, and
became final orders of the Commission on February 11 and 12, 2021 respectively. 
Consol asserts that that it timely mailed the contests to the Commission but
that they were not received.  While the Commission has no record of receiving any
contests from the operator, the Secretary confirms that its St. Louis, Missouri
collections office received partial payment from Consol for the uncontested
penalties. [2]
  The Secretary does not oppose the request to reopen, but urges the operator
to take steps to ensure that future penalty contests are timely filed to the
correct address. [3]  

Having
reviewed Consol’s request and the Secretary’s
response, we find that Consol’s failure to timely contest was due to an
inadvertent mailing error and that the operator took prompt action to move to
reopen these cases upon discovery of the error.  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/ 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

Distribution:

Marcy
Presto

Safety
Analyst

Consol
Energy, Inc.

1000
Consol Energy Drive, Suite 100

Canonsburg,
PA 15317-6506

[email protected]

John
M. McCracken, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South,  Suite 401

Arlington,
VA 22202-5452

[email protected]

Archith
Ramkumar, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[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 PENN-2021-0036, PENN 2021-0037, and PENN 2021-0038 involving similar
procedural issues. 29 C.F.R. § 2700.12.

[2] As the Secretary
was unaware of which citations Consol wanted to contest, the partial payment
was applied to the wrong citations.  Consol asks that all the citations in the
above-captioned dockets be reopened so that they can fix this error. 

[3] Notices of
contest should not be mailed to the Commission but rather MSHA’s Civil Penalty
Compliance Office, 201 12th Street South, Suite 401, Arlington, VA 22202.