Secretary of Labor v. Consol Mining Company, LLC

Plain-English summary

Consol requested an MSHA conference to challenge a section 104(b) withdrawal order and expected to contest it with the later penalty assessment for the underlying citation. MSHA assessed no separate penalty for the order, so it was not included as a contestable item in the petition and became final after 30 days. Consol timely contested the underlying citation, was negotiating a settlement, and committed to contest future withdrawal orders directly within 30 days. The majority found mistake, inadvertence, and excusable neglect, reopened the order, and remanded it. Commissioner Marvit dissented because he believes the Commission lacks reopening authority.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(b) and 815(d)
• Outcome: The withdrawal-order contest was reopened and remanded, over one Commissioner's dissent.
• Key point: A non-assessable withdrawal order may need its own timely contest rather than waiting for the underlying penalty case.

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
MINING COMPANY, LLC

Docket
No. WEVA 2024-0307 [1]

BEFORE: 
Jordan, Chair; Baker and Marvit, Commissioners

ORDER

BY:
Jordan, Chair, and Baker, Commissioners

This matter arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.

§
801 et seq. (2018) (“Mine Act”). On May 23, 2024, the Commission received from Consol
Mining, LLC (“Consol”) a motion seeking to reopen a contest proceeding involving
a non-assessable section 104(b) withdrawal order, 30 U.S.C. § 814(b), issued on
January 18, 2024. The Secretary does not oppose the motion.

Under section 105(d), an operator who
wishes to contest a section 104(b) withdrawal order should notify the Secretary
within 30 days after receipt of the order. Alternatively, the Commission has
allowed operators to contest 104(b) orders as part of its contest of the
underlying section 105(a) civil penalty proceeding. Holcim (us) Inc ., 42
FMSHRC 897, 897 (Nov. 2020), citing UMWA v. Maple Creek Mining, Inc ., 29
FMSHRC 583, 591 (July 2007); Huber Carbonates, LLC , 42 FMSHRC 885,
885–86 (Nov. 2020) (“We have held that this regulation plainly permits a
challenge to a section 104(b) withdrawal order in the civil penalty proceeding
that includes the citation underlying the withdrawal order.”) (internal
citation omitted).

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, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or
excusable neglect. 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”); Jim Walter Res., Inc. , 15 FMSHRC 782, 787 (May 1993). 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).

Section 104(b) Order No. 9598373 was
issued on January 18, 2024. Shortly thereafter, Consol requested a conference
with MSHA, which was held on February 14, 2024. During the conference, Consol
contested the facts asserted in the Order, and MSHA notified Consol that “[p]articipation
in this conference did not waive your right to a formal hearing with the
Federal Mine Safety and Health Review Commission concerning these citations…” As
such, Consol believed that Order No. 9598373 and the forthcoming penalty
assessment would be contested when the underlying citation was assessed. However,
to the surprise of Consol, when the penalty assessment was issued, there was no
penalty assessed for the order, nor was the order included in the petition. The
order was only referenced in Exhibit A to the Petition. At some point following
the conference, mine personnel were informed by the Secretary that Order No. 9598373
had become a final order because it was not contested within 30 days. Consol consulted
with outside counsel and filed its motion to reopen.

Consol maintains that its failure to
contest the section 104(b) Order constitutes mistake, inadvertence, and
excusable neglect, because its personnel were not aware that MSHA does not
always assess a penalty for 104(b) Orders and does not process them with the
underlying citation, or that they would become final within 30 days. It argues
that Consol fully intended to contest Order No. 9598373, which is evidenced by
the fact that it requested a conference soon after the Section 104(b) Order was
issued. Consol contends that it is unfair that the order would become final
before the conference to resolve the order could even occur. The operator notes
that it timely contested the underlying citation and is currently engaged in
settlement discussions with the Secretary regarding the underlying violation. Consol
states that to reduce the possibility of mistakes in the future, it will
contest any 104(b) Orders within 30 days. The Secretary does not oppose the
motion, noting pending settlement negotiations, but reminds Consol to ensure
that future contests are timely filed in accordance with MSHA’s regulations at
30 C.F.R. § 100.7 and the Commission’s procedural rules.

The record shows that the proposed penalty
assessment for underlying Citation No. 9598358 was issued on February 13, 2024,
and properly contested by the operator on March 3, 2024, and is the subject of Docket
No. WEVA 2024-0200. The Secretary did not assess a penalty for Order No.
9590373. Moreover, the parties have notified the assigned ALJ of an impending settlement
in Docket No. WEVA 2024-0200 and Order No. 9590373. [2]

Having reviewed Consol’s request and the
Secretary’s response, we find that the operator has sufficiently explained its
failure to timely contest the citations at issue as the result of mistake,
inadvertence, and excusable neglect. See Oak Grove Res ., LLC , 42
FMSHRC 915, 916 (Dec. 2020). 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.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Marvit, dissenting,

I write to disagree with the Majority in
this case for the reasons set forth below.

In Explosive Contractors , 46 FMSHRC
965 (Dec. 2024), I dissented and explained that Congress did not grant the
Commission the authority to reopen final orders under section 105(a) of the
Mine Act. The Commission’s repeated invocation of Federal Rule of Civil
Procedure 60(b) cannot overcome the statutory language. However, in Belt
Tech , I explained in my concurrence that “the Act clearly states that to
become a final order of the Commission, the operator must have received the
notification from the Secretary.” 46 FMSHRC 975 (citing Hancock Materials,
Inc. , 31 FMSHRC 537 (May 2009)). Taken together, these opinions stand for
the proposition that the Commission may not reopen final orders under its
statutory grant, but an operator may proceed if it has not properly received a
proposed order.

In the instant case, as the Majority
recounts, the Commission’s order became final under the language of section
105(a). The Majority, however, votes to reopen the case. The Mine Act has not
granted us authority to reconsider final orders of the Commission as I set out
more fully in Explosive Contractors . To the contrary, it has limited our
authority to do so. Therefore, I respectfully dissent and would deny reopening.

/s/ Moshe Z.
Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

James
P. McHugh, Esq.

Christopher
D. Pence, Esq.

Pence
Law Firm PLLC

10
Hale Street, 4th Floor

P.O.
Box 2548

Charleston,
WV 25329-2548

[email protected]

[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] The Secretary
moves that the Commission amend the caption in this case to remove “A.C. No.
46-09569-544722,” because there is no associated penalty assessed for Order No.
9590373. Therefore, the A.C. Number is not applicable here. In light of the
facts presented, the Secretary’s motion is granted.

[2] The ALJ has
stayed the proceedings in Docket No. WEVA 2024-0200 pending resolution of the
operator’s motion to reopen in the present docket. See ALJ Order Staying
Proceedings of June 14, 2024, WEVA 2024-0200.