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.
COUNTY LINE STONE CO INC.
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
CONSOL PENNSYLVANIA COAL COMPANY LLC
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
RAMACO RESOURCES, LLC |
: : : : : : : : : : : : : : : : : : : : : : : :
|
Docket No. YORK 2022-0003 A.C. No. 30-00026-541944
Docket No. PENN 2021-0108 A.C. No. 36-07416-539405
Docket No. WEVA 2022-0260 A.C. No. 46-09495-549775
|
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
These captioned cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”), and are currently before Administrative Law Judge Michael G. Young. The Secretary of Labor has now filed a second Petition for Interlocutory Review of these cases pursuant to Commission Procedural Rule 76(a)(1)(ii), 29 C.F.R. § 2700.76(a)(1)(ii) (“The Judge has denied a party’s motion for certification of the interlocutory ruling to the Commission, and the party files with the Commission a petition for interlocutory review within 30 days of the Judge’s denial of such motion for certification.”).[1]
The Commission denied the Secretary’s first Petition for Interlocutory Review, finding that the Secretary’s petition was filed prematurely as the Judge had yet to issue an order either granting or denying the subject motions to approve settlement.
Thereafter, the Secretary filed renewed motions with the Judge. On August 2, 2022, the Judge issued three separate orders, each denying the Secretary’s renewed motions to approve settlement and for certification of interlocutory review.
The Secretary’s motions to approve settlement were filed with the Judge in accordance with section 110(k) of the Mine Act, 30 U.S.C. § 820(k).[2] Each motion to approve settlement contains a proposal to vacate one or more of the citations at issue. In consideration of the motion, the Judge asked if the Secretary’s representative could attest that the decision to vacate any citation was independent from, and not contingent upon, the compromise or settlement of other citations in that case. Instead of providing the Judge with his requested assurance, the Secretary filed motions for certification of interlocutory review with the Judge, requesting that the Judge certify to the Commission the question of whether the Secretary has unreviewable discretion to vacate a contested citation as part of a settlement.
As the Secretary’s petition recognizes, a similar controlling question of law is currently on review before the Commission in Crimson Oak Grove Resources, SE 2021-0112, et al. Specifically, in Crimson Oak, on March 2, 2022, the Commission granted interluctory review of “the Judge’s orders denying the motions and the issue of whether section 110(k) of the Mine Act authorizes review of the Secretary’s decision to vacate a citation in the context of a settlement, when the vacatur is contingent upon the resolution of other citations.”
Commission Procedural Rule 76 provides that “the Commission, by a majority vote . . . may grant interlocutory review upon a determination that the Judge’s interlocutory ruling involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that “[i]nterlocutory review by the Commission shall not be a matter of right but of the sound discretion of the Commission.” 29 C.F.R. § 2700.76(a).
Upon consideration of the Secretary’s petition, we hereby grant review of the Judge’s orders and the issue of whether section 110(k) of the Mine Act authorizes review of the Secretary’s decision to vacate a citation in the context of a settlement, when the vacatur is contingent upon the resolution of other citations.[3]
The Secretary’s petition also contains an unopposed motion to hold the cases in abeyance. We grant the Secretary’s motion in part and order all proceedings before the Judge to be stayed pending futher order of the Commission. No hearing on these captioned matters shall commence without further order of the Commission.
The Secretary shall file an opening brief with the Commission within 30 days of this order. Any operator wishing to file a brief shall file that brief 30 days after the filing of the Secretary’s brief.
/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 (by email):
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
April Nelson, Esq. Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Norman C. Ridley, CLR
U.S. Department of Labor, MSHA
Thorn Hill Industrial Park
178 Thorn Hill Road, Suite 100
Warrendale, PA 15086
Douglas Sciotto, CLR
U.S. Department of Labor, MSHA
631 Excel Drive, Suite 100
Mt. Pleasant, PA 15666
Chris A. Weaver, CLR
U.S. Department of Labor, MSHA
604 Cheat Road
Morgantown, WV 26508
Paul T. Sharlow, Esq.
Sharlow Law Firm, P.C.
P.O. Box 641
Jamesville, NY 13078
Craig Aaron
CONSOL Energy Inc.
10000 CONSOL Energy Drive, Suite 100
Canonsburg, PA 15317
Jonathan R. Ellis, Esq.
Steptoe & Johnson PLLC
Chase Tower, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Jonathan.Ellis@steptoe-johnson.com
Colton C. Parsons, Esq.
Steptoe & Johnson PLLC
Chase Tower, Seventeenth Floor
P.O. Box 1588
Charleston, WV 25326
Colton.Parsons@steptoe-johnson.com
Administrative Law Judge Michael G. Young
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
[1] On June 28, 2022, the Judge issued three separate orders, each denying the Secretary of Labor’s respective motion for certification of an interlocutory ruling.
[2] Section 110(k) of the Mine Act, 30 U.S.C. § 820(k), provides, in pertinent part, that “no proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission.”
[3] Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, we hereby consolidate these three captioned proceedings: County Line Stone Co., Inc., YORK 2022-0003, Consol Pennsylvania Coal Co., LLC, PENN 2021-0108, and Ramaco Resources, LLC, WEVA 2022-0260.