Secretary of Labor v. CONSOL Mining Company, LLC

Plain-English summary

CONSOL asked the judge to vacate the Secretary’s proposed special assessments for two section 104(d)(1) violations and require regular assessment procedures instead. Judge Alan G. Paez held that the Mine Act gives the Secretary discretion to propose penalties and that the regulations permit special assessments. He also rejected CONSOL’s arguments based on Loper Bright and West Virginia v. EPA, explaining that the Commission independently assesses penalties de novo and that the special-assessment framework is not a radical change to the statute. The judge denied the second motion to vacate, leaving the proposed assessments in place for the proceeding.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(d)(1), 815, 820(a)(1), 820(i), and 957; 30 C.F.R. §§ 100.3 and 100.5
• Outcome: CONSOL’s second motion to vacate the special assessments was denied.
• Key point: The Secretary may propose special assessments under the Mine Act, while the Commission retains independent authority to determine the final penalties de novo.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

SECRETARY OF LABOR,

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:    

ADMINISTRATION (MSHA),

:     Docket No. WEVA 2024-0231

Petitioner,

:     A.C. No. 46-09569-594789

:    

v.

:  

:

CONSOL MINING COMPANY, LLC

Respondent.

:     Mine: Itmann No. 5

:

ORDER DENYING
RESPONDENT’S SECOND MOTION

TO VACATE
SPECIAL ASSESSMENTS

This case is before me upon the filing of the Petition
of the Secretary of Labor for Assessment of Civil Penalty against CONSOL Mining
Company, LLC (“CONSOL”) pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, as amended (“Mine Act”), 30 U.S.C. § 815. On July 17,
2024, Chief Administrative Law Judge Glynn F. Voisin assigned me this docket
and attached a copy of my Prehearing Order. Counsel for the parties have
complied with my Prehearing Order and filed their initial prehearing reports. By
order dated November 20, 2024, I set this matter for a hearing to be held on
May 28–30, 2025, in Beckley, West Virginia.

Counsel for CONSOL on November 19, 2024, filed a
pre-trial Motion to Vacate Special Assessments and Require Secretary to Follow
the Regular Assessment Procedures for both the citation and order issued to CONSOL
under section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1). On
December 8, 2024, the Secretary filed her Opposition to Motion to Vacate
Special Assessment. Thereafter, I issued my Order Denying Respondent’s Motion
to Vacate Special Assessments on January 31, 2025.

Later that same day, January 31,
2025, CONSOL filed its Second Motion to Vacate Special Assessments for both the
citation and order issued to CONSOL under section 104(d)(1) of the Mine Act. On
February 6, 2025, the Secretary filed her Opposition to Second Motion to Vacate
Special Assessment.

I.  THE PARTIES’
ARGUMENTS

In its Second Motion to Vacate Special
Assessments, CONSOL asks me again to vacate the Secretary’s proposed “special”
assessments and, instead, require the Secretary to recalculate the penalties using
the Secretary’s “regular” assessment formula under section 100.3, 30 C.F.R.
§ 100.3. (Resp’t Mot. at 1.) CONSOL raises several
new arguments, including constitutional arguments, that it failed to present in
its first motion. CONSOL argues that the Mine Act
does not authorize the Secretary to classify proposed civil penalties as “regular”
versus “special” and, therefore, the distinction is invalid. (Resp’t Mot. at 4–5.)
CONSOL also asserts that by deeming a proposed penalty assessment “special,”
the Secretary is permitted to ignore her own promulgated regulations regarding
proposed penalty assessments, which goes “beyond any power conferred to the
Secretary by the Mine Act.” (Resp’t Mot. at 5.) Furthermore, CONSOL contends
that under Commission case law, the Secretary’s determination to propose a “regular”
penalty assessment, as opposed to a “special” penalty assessment, alters how
the Commission will decide its own penalty assessment. (Resp’t Mot. at 5–6.)

CONSOL asserts that the
Supreme Court’s recent decision in Loper Bright dictates that I cannot
defer to section 100.5, 30 C.F.R § 100.5, the regulation establishing special
assessments, because the Mine Act does not explicitly mention special assessment
penalties. (Resp’t Mot. at 7.) CONSOL further asserts that the authorization of
special assessments under section 100.5 is impermissible under the Supreme
Court’s decision in West Virginia v. EPA, not only because it imposes
significant economic consequences on an operator, but because it is also based
upon a “general grant” of authority rather than a specific grant of authority. (Resp’t
Mot. at 8.) CONSOL concludes that under both Loper Bright and West
Virginia v. EPA, the Secretary exceeded her authority in creating a
classification scheme of “regular” versus “special” proposed penalty assessments,
and as such, any regulations, filings, or assessments based on this improper
delineation must be stricken. (Resp’t Mot. at 8.) Instead, CONSOL argues that
the Secretary should follow her “regular” proposed penalty assessment analysis.
(Resp’t Mot. at 9.)

In response, the Secretary argues that CONSOL’s
motion should be denied, because CONSOL waived its new constitutional arguments
when it failed to raise these arguments in a previous motion that sought
identical relief.[1]
(Sec’y Opp’n at 2.) In the alternative, the Secretary
argues that I should deny CONSOL’s motion because proposed special penalty assessments
are irrelevant, given that the Commission is not bound by the Secretary’s penalty
proposal in its de novo penalty assessment. (Sec’y Opp’n at 3.) Additionally,
the Secretary asserts that the Mine Act explicitly allows the Secretary great
discretion in proposing penalties to the Commission for assessment. (Sec’y Opp’n
at 3.) Thus, the Secretary argues that Loper Bright has no bearing on
this case because there is no ambiguity to interpret here. (Sec’y Opp’n at 3–4.)
Lastly, the Secretary argues that West Virginia v. EPA is irrelevant,
because her use of proposed special penalty assessments creates no “radical or
fundamental change” to the Mine Act. (Sec’y Opp’n at 4.)

II.  ANALYSIS AND
CONCLUSIONS OF LAW

A.        The Mine Act Grants the Secretary Discretion
in Proposing Penalties to the                           Commission for
Assessment

Under section 110 of the Mine Act, “[t]he
operator of a coal or other mine in which a violation occurs of a mandatory
health or safety standard or who violates any other provision of this chapter,
shall be assessed a civil penalty by the Secretary.” 30 U.S.C. § 820(a)(1). Further,
“[i]n proposing civil penalties under this chapter, the Secretary may rely upon
a summary review of the information available to h[er] and shall not be
required to make findings of fact concerning the above factors.” 30 U.S.C. §
820(i). The “above factors” are—

the operator’s history of previous
violations, the appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and
the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

Despite the broad language of section 110 of the
Mine Act which grants the Secretary discretion in proposing civil penalties,
CONSOL argues that the Secretary’s distinction between “regular” versus “special”
proposed civil penalties should be deemed invalid. Yet, section 110 does not
impose any specific restrictions on the Secretary’s discretion to propose
penalties; rather, it explicitly relieves the Secretary of any requirement to
make findings of fact concerning the six factors the Commission must consider
in assessing a penalty. 30 U.S.C. § 820(i). Moreover, while the Secretary under
section 110 “may rely upon a summary review of the information available to h[er]”
in proposing civil penalties, this is not a requirement but merely a permissible
practice. 30 U.S.C. § 820(i). Thus, the Mine Act authorizes the Secretary to create
a framework to classify proposed penalty assessments as “regular” or “special”
and to determine whatever method she sees best for calculating the proposed
penalty assessments. See also Am. Coal Co. v. FMSHRC, 933 F.3d 723, 727
(D.C. Cir. 2019) (holding that “the Secretary is under no obligation to ‘prove’
h[er] decision to suggest a special assessment rather than a regular assessment”).
In light of these considerations, CONSOL’s argument fails.

Similarly, CONSOL’s argument—that deeming a
proposed penalty assessment “special” thereby permits the Secretary to ignore her
own promulgated regulations regarding proposed penalty assessments—carries no
weight. Under Section 508 of the Mine Act, the Secretary is “authorized to
issue such regulations as” she “deems appropriate to carry out any provision of
this Act.” 30 U.S.C. § 957. Under this authority, the Secretary has
promulgated several regulations to guide her assessment of penalty proposals at
30 C.F.R. part 100. Section 100.3 provides guidance and tables to translate evaluations
of the six penalty criteria in sections 105(b) and 110(i) of the Mine Act into
points which are added together and then converted into a dollar amount under
the penalty conversion table for a “regular assessment” penalty proposal. 30 C.F.R.
§ 100.3. Nonetheless, under section 100.5 “MSHA may elect to waive the regular
assessment under § 100.3 if it determines that conditions warrant a special
assessment.” 30 C.F.R. § 100.5(a). When MSHA determines that a
special assessment is appropriate, the proposed penalty simply must be based on
the six criteria set forth in section 100.3(a). 30 C.F.R. § 100.5(b). Moreover,
section 100.5 does not require the Secretary to utilize the penalty conversion
tables in section 100.3 for every penalty assessment. 30 C.F.R. § 100.5. Rather,
the Secretary may utilize her discretion to propose a special assessment. 30 C.F.R.
§ 100.5(a). Thus, instead of going “beyond any power conferred to the Secretary
by the Mine Act” as CONSOL alleges, the Secretary exercised her authority to
promulgate rules on proposed penalties. (Resp’t Mot. at 5.)

CONSOL’s argument—that the Secretary’s choice
between a “regular” versus a “special” penalty assessment somehow alters how
the Commission will decide its own penalty assessment—holds little sway. Here,
the Secretary has alleged that CONSOL engaged in two “unwarrantable failure” (or
highly negligent) violations of standards under section 104(d)(1) of the Mine
Act.  (Sec’y
Pet., Ex. A.) Given the scheme of the Mine Act and its “(d)-chain,” with higher
penalties for violations purportedly involving a higher degree of negligence,
one would expect that the Secretary may choose to propose higher assessments
for violations she deems higher on the negligence scale. But the Secretary must
still prove the alleged higher level of negligence to, in turn, support her
proposed penalty assessment. Compare Stillhouse Mining,
LLC, 33 FMSHRC 778 (Mar. 2011) (ALJ) (Commission Judge upheld flagrant
violation sustaining total penalties of $761,000), with Blue Diamond
Coal Co., 36 FMSHRC 541 (Feb. 2014) (ALJ) (Commission Judge vacated
flagrant allegations with proposed penalty of $723,500 and reduced operator’s
total liability nearly ninefold to $85,940 and dismissed section 110(c) case
with penalty of $3,000). The Commission and its ALJs assess penalties based
on the evidence educed at hearing, not on the Secretary’s litigating position.

Additionally, in Solar Sources
Mining, LLC, the Commission confirmed that “when the penalty assessed by
the Judge substantially diverges from a proposed, regularly assessed
penalty, the Commission requires Judges to provide an explanation for
the divergence to avoid an appearance of arbitrariness in penalty assessments.”
Solar Sources Mining, LLC, 42 FMSHRC 181, 193–94 (Mar. 2020). The
Commission also clarified that “Judges are not required to explain their
divergence from a special assessment,” rather Judges “must make an independent
assessment based upon the facts and penalty criteria without using the special
assessment as any sort of baseline or reference point.” Solar Sources
Mining, LLC, 42 FMSHRC at 197, 200. However, this minor difference in how
Commission ALJs should address the Secretary’s penalty proposal is irrelevant,
as “the Commission independently assesses a civil penalty de novo based
on findings of fact and consideration of six penalty factors,” regardless of
the type of penalty proposed by the Secretary. Solar Sources Mining, LLC,
42 FMSHRC at 183.

B.        CONSOL’s Constitutional Arguments are
Inapposite

In Loper Bright, the Supreme Court
overruled Chevron and held that “courts need not and under the [Administrative
Procedure Act] may not defer to an agency interpretation of the law simply
because a statute is ambiguous.” Loper Bright Enters. v. Raimondo, 603
U.S. 369, 413 (2024). CONSOL points to no ambiguity in the Mine Act requiring
interpretation here; therefore, Loper Bright has no bearing on this case.
As previously discussed, see discussion supra Part II.A, section
110 of the Mine Act explicitly grants the Secretary considerable discretion in
proposing penalties to the Commission for assessment. Consequently, the
Secretary has not exceeded the scope of her power in promulgating section 100.5,
30 C.F.R. § 100.5.

Moreover, the Secretary in her
response to CONSOL’s motion recognizes her penalty regulations are irrelevant to
independent Commission proceedings and does not argue I should grant them Chevron
deference. As previously discussed in my order denying CONSOL’s first motion to
vacate special assessments, section 110 of the Mine Act clearly grants
Commission ALJs independent authority to assess all contested penalties de
novo. (Jan. 31, 2025, Order Denying Resp’t Mot. to Vacate Special
Assessments at 4.) Therefore, section 100.5 is irrelevant to my ultimate
assessment of an appropriate penalty in this case based on my findings of fact
related to each penalty criterion.

Likewise, the Supreme Court’s
decision in West Virginia v. EPA has no bearing on this case. In West
Virginia v. EPA, the Supreme Court addressed whether the EPA, under the
Clean Air Act, could promulgate a rule that interpreted the statutory language of
“best system of emission reduction” to include a requirement that coal power
plants reduce their own production of electricity, or subsidize it via natural
gas, wind, or solar sources. West Virginia v. EPA, 597 U.S. 697, 706
(2022). The Supreme Court held that the EPA’s interpretation was a radical and
fundamental change from Congress’s statutory scheme because “[e]xtraordinary
grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague
terms,’ or ‘subtle device[s].’ Nor does Congress typically use oblique or
elliptical language to empower an agency to make a ‘radical or fundamental
change’ to a statutory scheme.” West Virginia v. EPA, 597 U.S. 697, 723
(2022) (citations omitted). However, the Secretary’s use of proposed special penalty
assessments pursuant to section 100.5, 30 C.F.R. § 100.5, is not an “extraordinary
grant[] of regulatory authority.” See West Virginia v. EPA, 597
U.S. at 723. The Commission has affirmed that “[n]o significance attaches to
MSHA’s penalty which is specially proposed for litigation purposes. The Judge
must assess the penalty de novo based only upon the Judge’s findings of
fact related to each penalty criterion.” Solar Sources Mining, LLC, 42
FMSHRC at 198. Nor is the Secretary’s use of proposed special penalty
assessments a “radical or fundamental change” to the Mine Act. See West
Virginia v. EPA, 597 U.S. at 723. Section 110(i) of the Mine Act simply
states that “[i]n proposing civil penalties . . . , the Secretary may rely upon
a summary review of the information available to h[er].” 30 U.S.C. § 820(i). The
directive in section 100.5 to base a special assessment “on the six criteria
set forth in § 100.3(a)” is in line with the Mine Act and could hardly be
described as a “radical or fundamental change.” 30 C.F.R. § 100.5(b); West
Virginia v. EPA, 597 U.S. at 723. Accordingly, I determine that CONSOL’s constitutional
arguments fail.

In considering the arguments put
forth by the parties, I conclude that the Mine Act authorizes the Secretary’s
penalty regulations at 30 C.F.R. part 100. I also conclude that CONSOL has
failed to establish any constitutional basis for vacating the proposed special penalty
assessments prior to hearing under the Mine Act’s penalty scheme.

III.  ORDER

Based on the foregoing reasoning, CONSOL’s Second
Motion to Vacate Special Assessments is hereby DENIED.

/s/
Alan G. Paez

Alan
G. Paez

Administrative Law Judge

Distribution (Via Electronic Mail Only):

Monica W. Hanratty, Esq. &
Mathew R. Epstein, Esq.

U.S. Department of Labor, Office of the Regional Solicitor,

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103-2968

([email protected])

([email protected])

James P. McHugh, Esq., Pence Law Firm PLLC,

P.O. Box 2548, Charleston, WV 25329-2548

([email protected])

([email protected])

/MEK

[1] The
Secretary asserts that CONSOL’s motion is akin to a motion to dismiss and therefore
is restricted by Fed. R. Civ. P. 12(g)(2), which prevents parties from raising
a defense or objection that was previously available to the party but omitted
from its earlier motion. Despite the Secretary’s assertion, I determine that
CONSOL’s Second Motion to Vacate Special Assessments is not a motion to dismiss
and, thus, will entertain it.