Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

Consol Pennsylvania Coal mailed two penalty contests within days after receiving the assessments, and MSHA's Arlington mail room received them before the deadline. An internal MSHA error kept the forms from reaching the Civil Penalty Compliance Office, leading to delinquency letters. The Secretary did not oppose and confirmed that staff had been instructed on proper future mail processing. The Commission held that the assessments never became final because the operator had timely notified the Secretary. It declared the reopening motions moot and remanded both cases for penalty proceedings.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motions were declared moot and both timely contests were remanded.
• Key point: Timely delivery to MSHA satisfies the contest requirement even when the agency later misroutes the paperwork internally.

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

Docket
No. PENN 2024-0083

A.C.
No. 36-07230-594736

Docket
No. PENN 2024-0084

A.C.
No. 36-10045-594741

BEFORE: 
Jordan, Chair; Baker and Marvit, 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. (2018) (“Mine Act”). On May 29, 2024, the Commission received from Consol
Pennsylvania Coal Co., LLC (“Consol Penn”) motions seeking to reopen contest
proceedings 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 the proposed assessments were
delivered to the operator on March 2, 2024. Delinquency letters were sent to
the operator on May 17, 2024.

Consol Penn states that it timely
contested the proposed penalty assessments when it mailed its contests to MSHA
on March 5, 2024. The operator’s records indicate that the contests were
received at MSHA’s Arlington office on March 11, 2024. It also paid the
penalties for the citations it did not contest, which were timely received by
MSHA.

The Secretary does not oppose the motion. She
notes that the contests were timely mailed on March 08, 2024, six days after
the U.S. Postal Service delivery date of March 02, 2024, and that MSHA’s receipt
of the documents were on March 11, 2024, three days after Consol Penn mailed
the contests to MSHA. The Secretary further notes that the contests were received
in the MSHA mail room, but “due to an inadvertent error,” they were not properly
distributed to the Civil Penalty Compliance Office in a timely manner. The
Secretary informs the Commission that the appropriate parties have been contacted
and instructed in the proper method for the future processing of the Civil
Penalty Compliance Office’s mail. Because the contest was timely received, the Secretary
argues that the Commission should deny Consol Penn’s motions to reopen as moot
and remand these cases for the Secretary to file petitions for the assessment
of a civil penalty.

Having reviewed Consol Penn’s request and
the Secretary’s response, we conclude that the proposed penalty assessments did
not become final orders of the Commission because the operator timely contested
the assessments. Section 105(a) states that if an operator “fails to notify the
Secretary that he intends to contest the . . . proposed assessment of penalty .
. . the citation and the proposed assessment of penalty shall be deemed a final
order of the Commission.” 30 U.S.C. § 815(a). Here, Consol Penn notified the
Secretary of the contests. This obviates any need to invoke Rule 60(b). See
Chad Buus, Employed By U.S. Steel - Minnesota Ore Operations , 46 FMSHRC 86,
86-87 (Feb. 2024); San Benito Supply , 40 FMSHRC 346, 346–47 (Mar. 2018).
Accordingly, the operator’s motion to reopen is moot, and these cases are
remanded 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.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Marcy
Presto

Safety
Analyst

CONSOL
Energy Inc.

275
Technology Drive, Suite 101

Canonsburg,
PA 15317-6506

[email protected]

Thomas
A. Paige, Esq.

Deputy
Associate Solicitor

US
Department of Labor

Office
of the Solicitor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite N4428

Washington,
DC 20210

[email protected]

Melanie
Garris

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal
Mine Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] Consol Penn filed
similar motions to reopen relying upon the same reason as the basis for
re-opening in two separate dockets. For the limited purpose of addressing the
motions to reopen, we hereby consolidate docket numbers PENN 2024-0083 and PENN
2024-0084. See 29 C.F.R. §2700.12.