Secretary of Labor v. Oak Grove Resources, LLC

Plain-English summary

MSHA designated extensive combustible accumulations along Oak Grove Mine's Main North 3 belt as a repeated flagrant violation. Judge Jerold Feldman emphasized that the accumulations remained a serious alleged section 75.400 violation, but held that the flagrant statute requires a condition capable of proximately causing death or serious bodily injury under the facts existing when cited. The Secretary conceded there was no heat sufficient to ignite coal at that time, and the accumulations were far from the active working faces. The Judge rejected reliance on a possible future ignition source during continued mining because that analysis would collapse the distinction between a flagrant violation and an ordinary S&S violation. He deleted the flagrant designation and ordered the Secretary to file an amended penalty petition.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The repeated flagrant designation was deleted, and the Secretary was directed to submit an amended penalty petition.
• Key point: Under this interlocutory ruling, a flagrant violation required present conditions capable of proximately causing serious harm, not a future event that might arise during continued mining.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

June 1, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

OAK GROVE RESOURCES, LLC,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2013-301

A.C. No. 01-00851-315187-01

Docket No. SE 2013-352

A.C. No. 01-00851-317727

Docket No. SE 2013-368

A.C. No. 01-00851-319550

Docket No. SE 2013-399

A.C. No. 01-00851-320606-01

Mine: Oak Grove Mine

ORDER DELETING
FLAGRANT DESIGNATION

Appearances:   Stephen
D. Turow, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington,
Virginia, on behalf of the Petitioner;

R.
Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,

on
behalf of the Respondent.

Before:                        Judge Feldman

This
Order addresses the evidentiary criteria that must be demonstrated to support
the imposition of enhanced civil penalties provided in the flagrant provisions
of section 110(b)(2)  of the Federal Mine Safety and Health Act of 1977, as
amended by the Mine Improvement and New Emergency Response Act of 2006 (“Mine
Act” or “the Act”), 30 U.S.C. § 820(b)(2). Section 110(b)(2) provides:

Violations under this section that are
deemed to be flagrant may be assessed a civil penalty of not more than $220,000
[adjusted for inflation]. For purposes of the preceding sentence, the term
“flagrant” with respect to a violation means a reckless or repeated failure to
make reasonable efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or reasonably
could have been expected to cause, death or serious bodily injury.

30
U.S.C. § 820(b)(2) (emphasis added).

Viewing the facts in a light most
favorable to the Secretary, in order to determine whether the cited
accumulations in the subject order state a cause of action for a repeated
flagrant violation as contemplated by section 110(b)(2) of the Act, an oral
argument was held on   March 4, 2015, in Washington, DC.[1]
The parties filed post-oral argument briefs, which have been considered in this
matter.

I.                  
Background
and Statutory Scheme

Specifically, this matter concerns a
section 104(d) order alleging a repeated flagrant violation of 30 C.F.R. §
75.400 of the Secretary’s mandatory safety regulations, attributable to an
unwarrantable failure, that prohibits the accumulation of combustible coal
materials along and under conveyor belt structures.[2]
The cited condition was attributable to a high degree of negligence, rather
than to reckless conduct. The subject order, Order No. 8520664 in    Docket No.
SE 2013-368, was issued on October 3, 2012, and states:

Combustible material in the form of
float coal dust and dry hard packed coal fines were allowed to accumulate on
the roof, ribs, footwall, and belt structure of the Main North 3 belt entry. The
hard packed coal fines were in contact with moving roller[s] on the belt line
in multiple locations along the belt entry. The float coal dust existed on the
roof, ribs, footwall, and belt structure from the Main North 3 Tail Piece
extending outby to crosscut 27. This is an approximate distance of 2100 feet. Due
to the extensive amount of accumulations and that this belt is examined every
shift this constitutes more than ordinary negligence and is an unwarrantable
failure to comply with a mandatory health and safety standard. Standard 75.400
was cited 92 times in two years at mine 0100851 (91 to the operator, 1 to a
contractor). This violation is an unwarrantable failure to comply with a
mandatory standard.

Violations of Section 75.400, like that
cited in Order No. 8520664, are the most frequently cited violations of
mandatory safety standards in underground coal mines.[3]
I emphasize—I repeat, I emphasize—that prohibited coal dust accumulations
violating section 75.400 pose a significant safety hazard, which must not be
trivialized. Such violations can proximately cause an explosion through
combustion of coal dust accumulations when such accumulations come in contact
with an ignition source such as a defective roller. In addition, such
accumulations may contribute to the extensiveness of an explosion through
propagation. However, the issue is not whether the cited accumulations are
potentially hazardous, but rather whether they have been properly designated as
flagrant.

Although Order No. 8520664 was
designated as a repeated flagrant designation, the Secretary agrees that an
operator’s past history of violations cannot provide a basis for a flagrant
designation if the cited violative condition does not otherwise satisfy the
statutory definition in section 110(b)(2). In this regard, the Secretary stated
at oral argument:

COUNSEL:    Let
me first start by saying that the Secretary agrees unequivocally with what [the
Court] just said with respect to history. We absolutely agree that history
alone cannot elevate a violation to a flagrant violation. There is no dispute
about that from the Secretary’s perspective.

And I think as [the Court] read yourself
from the Secretary’s response to your briefing order, the Secretary has noted
that both reckless and repeated flagrant designations require violations that
substantially and proximately caused or reasonably could have been expected to
cause, death or serious bodily injury.

Tr. 29-30.[4]

Rather, relying on the language of the
statue, which he must, the Secretary poses the issue as whether the cited
accumulations “reasonably could have been expected to cause death[,] or serious
[bodily] injury.” Sec’y of Labor’s Response to Briefing Order, at 1  
(May 4, 2015) (“Sec’y Resp.”) (emphasis added). However, the Secretary begs the
question by oversimplifying the issue. At the risk of stating the obvious, the
vast majority of all violations of the Secretary’s mandatory safety standards
can be reasonably expected to cause serious injury, given continuing mining operations.
Rather, resolution of whether there is a sufficient causal relationship to
justify a flagrant designation requires distinguishing between whether the
violation alleged to be flagrant can be reasonably expected to be the proximate
cause of death or serious bodily injury, and, whether the violation can be the contributing
cause of death or serious bodily injury. By oversimplifying this issue, the
Secretary conflates the requirements for an S&S designation with the
requirements for enhanced penalties under the flagrant provisions of section
110(b)(2).

Consistent
with the Mine Act’s statutory scheme, the enhanced civil penalty provisions of
section 110(b)(2) were promulgated to “provide[] for the use of increasingly
severe sanctions for increasingly serious violations or [increasingly serious]
operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828
(Apr. 1981). Thus, the Mine Act provides a scheme of increasingly severe
sanctions: for S&S violations cited under 104(a); for violations
attributable to unwarrantable failures cited under section 104(d), which
subject operators to a maximum penalty of $70,000.00; and for flagrant
violations under section 110(b)(2), which subject operators to a maximum
penalty of $220,000.00 (adjusted for inflation). Obviously, all flagrant
violations are S&S in nature. However, it is only the most egregious
S&S violations—because of their direct causal relationship to death or
serious bodily injury, or the threat thereof—that can be properly designated as
flagrant.

It is well-settled that a violation is
S&S when there is a “reasonable likelihood that the hazard contributed
to by the violation will result in an event in which there is an injury [of
a reasonably serious nature].” U.S. Steele Mining, 6 FMSHRC 1834, 1836
(Aug. 1984); Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). In
clarifying the contributing nature of a hazard created by an S&S violation,
the Commission held in Musser Eng’g, Inc.:

The test under the third element [of Mathies]
is whether there is a reasonable likelihood that the hazard contributed to by
the violation . . . will cause injury. The Secretary need not prove a
reasonable likelihood that the violation itself will cause injury.

32
FMSHRC 1257, 1280-81 (Oct. 2010) (emphasis added). Thus, Musser stands
for the proposition that the hallmark of the most serious S&S violations is
that the hazards created by the violations, in and of themselves, will directly
cause injury. It follows, consistent with the

Mine
Act’s statutory scheme, that it is only these most serious S&S violations
that can properly be designated as flagrant.[5]

II.               
Elements
of Section 110(b)(2)

a.       Causation

We start, as we must, with the statutory
definition for a flagrant violation provided by Congress in section 110(b)(2). Congress
defined a flagrant violation as one “that substantially and proximately caused,
or reasonably could have been expected to cause, death or serious bodily
injury.” 30 U.S.C. § 820(b)(2)

As a threshold matter, it is necessary to
distinguish the terms proximate cause, as used in section 110(b)(2), from
contributory cause. A proximate cause is “a cause that directly produces an
event and without which the event would not have occurred.” Black’s Law
Dictionary 213 (7th ed. 1999). Synonyms for proximate cause
include “direct cause,” “primary cause,” and “legal cause.” Id. On the
other hand, a contributing cause is “a factor that—though not the primary
cause—plays a part in producing a result.” Id. at 212.

The Secretary, in essence, argues that
the definition of a flagrant violation provided by Congress is ambiguous. As
his proffered interpretation, the Secretary asserts that a violation is
flagrant if it was the proximate cause of death or serious bodily injury
that has already occurred. With regard to accidents that have not yet occurred,
the Secretary argues, in essence, that violations can be properly designated as
flagrant if the violation can be reasonably expected to be the contributing
cause of death or serious bodily injury. Assuming for the sake of argument
that section 110(b)(2) is ambiguous, the Secretary’s two-tiered approach with
regard to levels of causation under section 110(b)(2) is not entitled to Chevron
deference[6]
in that it is unreasonable because it cannot be reconciled with long-standing
and generally-accepted principles of statutory interpretation.

In this regard, as discussed below, the
principles of statutory interpretation dictate that the operative phrase in
section 110(b)(2) should be read as: A violation can be properly designated as
flagrant if it “substantially and proximately caused, or reasonably could have
been expected to [substantially and proximately] cause, death or serious bodily
injury.” In short, to properly designate a violation as flagrant, the Secretary
must always demonstrate that the cited condition could proximately cause death
or serious bodily injury.

I reach this inescapable conclusion
based on several tenets of statutory construction. Namely, when a general
clause follows a specific clause, the words in the general clause must be
construed to embrace the specific words in the preceding clause. 2A Sutherland
Statutory Construction § 47:17 (7th ed.). Moreover, each part or section of
a statute should be construed relative to every other part of a statute to
produce a harmonious whole. Id. at § 46.5. Thus, general words may not
be given an abstract meaning that is inconsistent with preceding specific
words, such that the general words would render the specific words superfluous.
Id. at § 47.17.

In
applying the aforementioned principles it is helpful to enumerate the three
relevant clauses in section 110(b)(2). The relevant clauses are:

(1)   “that substantially
and proximately caused”;

(2)   “or reasonably
could have been expected to cause”; and

(3) “death or serious bodily injury”.

It is clear that the term proximate
cause in the first clause defines the level of causation in the second clause. For
to hold that violations that only contribute to death or serious bodily injury,
rather than those that proximately (directly) cause death or serious
bodily injury, can be properly designated as flagrant would render the term
“proximate cause” in the first clause superfluous. Furthermore, limiting
enhanced civil penalties only to flagrant violations that can proximately
(directly) cause death or serious bodily injury is harmonious with the
statutory scheme of the Mine Act that imposes higher penalties for more serious
violations.

b.      Analogy to
Imminent Danger

Well-settled “principles of statutory
construction require us to construe identical words used in different parts of
the same statute . . . to have the same meaning.” IBP Inc. v. Alvarez,
546 U.S. 21, 34 (2005) (citations omitted). To further support the proposition
that it is only the most serious violations that can be reasonably expected to
proximately (directly) cause death or serious injury that can be designated as
flagrant, one need only look to the statutory definition of

imminent
danger in section 3(j) of the Mine Act, which contains, essentially verbatim,
the language of the second and third clauses in section 110(b)(2) discussed above. [7]
Section 3(j) of the Mine Act defines “imminent danger” as “the existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.” 30
U.S.C. § 802(j) (emphasis added).

The Commission addressed the definition
of the term “imminent” in adjudicating an imminent danger order issued pursuant
to section 107(a) of the Mine Act in Utah Power & Light Co., 13
FMSHRC 1617 (Oct. 1991). The Commission defined “imminent” as “ready to take
place: near at hand: impending. . . : hanging threateningly over one’s head:
menacingly near. Id. at 1621 (citing Webster’s Third New Int’l
Dictionary at 1130 (1986)). The Commission opined that “[t]he language of
the Act and its legislative history make clear that Congress intended that
there must be some degree of imminence to support a section 107(a) order.” Id.

It is particularly noteworthy that the
Commission has articulated the importance of distinguishing serious violations
that pose an extremely high degree of danger, such as imminent danger
conditions, from routine S&S violations that could contribute to an injury
based on future continued mining operations. In this regard, the Commission has
stated:

If the imminent danger provisions of the
Act are interpreted to include any hazard that has the potential to cause a
serious accident at some future time, the distinction is lost between a hazard
that creates an imminent danger and a violative condition that “is of such
nature as could significantly and substantially contribute to the cause and
effect” of a mine safety hazard. Section 104(d)(1); 30 U.S.C. § 814(d)(1). . . . [T]he
Commission held that to be of an S&S nature, a cited condition “need not be
so grave as to constitute an imminent danger.” [Cement
Division, National Gypsum Company, 3
FMSHRC 822] at 828 [Apr. 1981.]

Utah Power & Light, 13 FMSHRC at
1622.

Thus, it is significant that Congress,
in its recent promulgation of the flagrant provisions of section 110(b)(2),
chose to use the identical language that it used in section 3(j) to define an
imminent danger—that is, a condition that “could reasonably be expected to cause
death or serious [injury].” It is eminently clear that Congress used the
“reasonably expected to cause death or serious injury” language in both sections
3(j) and 110(b)(2) to apply only to conditions that are extremely dangerous
because they can directly (proximately) cause death or serious bodily injury
without any intervening events that depend on continuing mining operations.    As
such, the Secretary’s assertion that violations that can only contribute to
death or serious bodily injury can provide a basis for a flagrant designation,
must be rejected as unreasonable.

III.            
Flagrant
Designation in Order No. 8520664

Having concluded that a violation must
be capable of proximately (directly) causing death or serious bodily injury to
justify a flagrant designation, we turn to whether the undisputed material
facts, as construed in a light most favorable to the Secretary, support the
Secretary’s flagrant designation in Order No. 8520664. Coal dust accumulations in
the presence of an actual (present) ignition source, not present in the current
case, can be the proximate cause of death or serious bodily injury. However,
characterizing an accumulations violation as “flagrant,” i.e., a condition that
is extremely dangerous and cannot escape notice, is descriptive of present
circumstances without regard to past history or continued mining operations.

While the cited accumulations may have
been exposed to future ignition sources based on conveyor belt defects that may
occur during the course of continued mining operations, the undisputed material
facts demonstrate that the cited accumulations were not in proximity to
any identifiable ignition source, such as a misaligned belt or defective roller
on October 3, 2012, the date Order No. 8520664 was issued. In this regard, the
Secretary forthrightly conceded during oral argument:

COURT:         Was
there any evidence of any heat? . . .

COUNSEL:    And
the simple answer I’d like to give you . . . is at the time the violation was
issued, there is no evidence of heat sufficient to ignite coal at the time
the violation was issued.

Tr.
129-130 (emphasis added).

Moreover, the cited accumulations were
remotely located where they could not be exposed to ignition sources at the
mine face. In this regard, at oral argument, the parties stipulated that the location
of the cited accumulations was approximately .58 miles from the zero-gate
continuous mining development area, .96 miles from an active working face, and  
2.3 miles from an active long wall mining face. Tr. 139-40; Oral Arg. Jt. Ex.

1. Rather, the Secretary repeatedly relies on speculation that there will be
   future sources of heat that will arise during the course continued mining
   operations, as a basis for asserting that the cited accumulations could
   reasonably be expected to cause death or serious bodily injury. Sec’y Resp.,
   at 6-10. In his brief, the Secretary also repeatedly proposes that the “the
   rationale for presuming ‘continued mining operations’ applies equally to
   ‘flagrant’ and [S&S] determinations.” Id. at 18-22. Consistent with
   this proposition, at oral argument the Secretary stated:

COUNSEL:    If
the Court doesn’t agree that the concept of continued normal mining operations
applies in a flagrant violation, then the Court should rule that way, we would
lose this case.

Tr.
151-52. Precisely.

Fundamentally, the Secretary must not be
permitted to use interchangeably the term “actual (present) ignition source”
with the term “potential ignition source” that may occur as a consequence of a
future defect in the conveyor belt system during continued mining operations. In
the present case, in the absence of ignition sources, the cited accumulations
themselves are not capable of combustion and, as such, cannot be the proximate
cause of serious bodily injury or death, as contemplated by section 75.400. Consideration
of potential exposure to a future ignition source based on continued mining
operations in the context of a traditional S&S analysis goes beyond scope a
flagrant analysis.

Rather, whether the facts surrounding a
violation support a flagrant designation is determined by the facts as they
existed at the time the citation was issued. Coal dust accumulations not in
the presence of ignition sources can be a contributing cause
of injury if they propagate an explosion. However, such accumulations cannot be
the proximate cause of injury. To conclude otherwise, would be to render
the vast majority of prohibited accumulations under section 75.400 flagrant
violations. This is consistent with the Commission’s admonition that the
distinction between imminent danger hazards and hazards created by the vast
majority of S&S violations should be preserved. See Utah Power & Light,
13 FMSHRC at 1622. Simply put—if everything is flagrant, nothing is flagrant. Nor
does the Secretary have the prosecutorial discretion to arbitrarily and
capriciously label violations as flagrant.[8]

IV.            
Constraints
on Prosecutorial Discretion

I am cognizant of the broad
prosecutorial discretion that should be accorded to the Secretary. In this
regard, I routinely approve reasonable settlement terms proffered by the
Secretary that delete S&S and unwarrantable designations based on
prosecutorial discretion. Yet, however well-intentioned, the Secretary’s
enforcement discretion is not unfettered and may not be arbitrarily and
capriciously exercised. In this regard, the Secretary’s assertion that the
cited condition is extraordinary and warrants a flagrant designation is belied
by his own prosecutorial history.

Order No. 8520664 specifies that
citations for violations of section 75.400 were issued 92 times in the previous
two years at the Oak Grove Mine. At oral argument, the parties were requested
to submit copies of all of these citations or orders that were designated as
S&S. Consistent with this request, the parties provided copies of 30 citations
and orders. Of these 30 citations and orders, approximately ten involved
extensive accumulations, some of which were in contact with moving rollers. It
is significant that the Secretary did not designate any of these 30 citations
and orders as flagrant violations. While the Secretary may lack the necessary
information to compare the gravity of the 30 previously-issued S&S accumulation
violations with the gravity of the accumulation violation in Order No. 8520664,
the Secretary’s attempt to explain his history of arbitrary enforcement is
regrettable. The Secretary stated:

It is conceivable, but highly unlikely,
that one of the previous violations was the result of the exact same levels of
gravity and negligence, and had the same history of violations as Order No.
8520664, yet MSHA determined that it was not ‘flagrant.’

Sec’y
Resp.,
at 27. As previously noted, the subject accumulations in Order No. 8520664 were
located between .56 and 2.3 miles from the working faces. It is probable that a
significant number of these 30 accumulation violations were located in closer proximity
to working faces, thus reflecting a higher degree of gravity.

I share the Secretary’s apparent
frustration over Oak Grove’s repeated history of section 75.400 accumulation
violations. However, as previously discussed, the Secretary has conceded that a
previous history of violations does not provide an adequate basis for
designating a violation as flagrant that does not otherwise satisfy the
statutory criteria.

It is worth noting that I am constrained
to apply the applicable statutory provisions that I have, not the provisions
that I wish I had. Congress defined a flagrant violation as one “that
substantially and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury.” I would have preferred Congress to have
articulated a timeline for the imposition of enhanced civil penalties for
flagrant violations, as they did for withdrawal orders under section 104(d)(1)
of the Mine Act. For example, Congress could have articulated that the fourth
unwarrantable failure violation of the same mandatory safety standard within a
two year period constitutes a flagrant violation. However, Congress declined to
do so. It is inappropriate for me, or for the Secretary, to utilize our
adjudicative or enforcement functions as a substitute for the legislative will
of Congress.

As a final note, narrowly construing
section 110(b)(2) to only apply to the most dangerous violations that can
proximately cause serious bodily injury or death will not adversely affect
deterrence. The most effective means of achieving compliance is the deterrent
effect of 104(d)(1) withdrawal orders issued under the Mine Act that explicitly
require stoppages of production until abatement is achieved. See Sec’y
of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC _, slip op.
at 13 (May 2014) (dissenting), citing Amax Lead Co., 4 FMSHRC 975, 978-79
(June 1982) (holding that unwarrantable failure withdrawal sanctions are among
the strongest compliance incentives provided by the Act’s enforcement scheme); see
also Brody Mining, LLC, 36 FMSHRC 2027, 2042 (Aug. 2014). A significant
loss of production is a far greater economic loss, particularly for moderate
and large operators, than civil penalties proposed under the Act.

Although the deterrent effect of civil
penalties must not be trivialized, the more important role of a flagrant
violation charge is that it hopefully will shock the conscience of, if not
disgrace, a recalcitrant mine operator. Such designations may also expose
operators to greater civil liabilities for the death or serious injuries that
such violations may cause.

ORDER

The Commission and its judges are
guided, as far as practicable, by the Federal Rules of Civil Procedure, with respect
to any procedural matter not addressed by the Mine Act or the Commission’s
procedural rules. 29 C.F.R. § 2700.1(b). Federal Rule of Civil Procedure 56(f)
provides that a judge may, on his own, dispose of a matter by summary decision
in favor of a nonmovant, in this case, Oak Grove, after providing the parties a
reasonable time to respond and determining that there are no outstanding
material facts that are genuinely in dispute. Fed. R. of Civ. P. 56(f). The
parties have had an opportunity to participate in oral argument and submit
briefs in this matter.

Viewing the evidence in a light most
favorable to the Secretary, IT IS ORDERED THAT the flagrant designation
in Order No. 8520664 IS DELETED as the undisputed evidence fails to
demonstrate that the cited violative coal dust accumulations reasonably could
have been expected to proximately cause death or serious bodily injury.

IT IS FURTHER ORDERED that the
Secretary file, within 45 days of the date of this Order, a relevant amended
petition for assessment of civil penalty for Order No. 8520664 consistent with
this Order.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:
(Electronic and Certified Mail)

Stephen
D. Turow, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Blvd., 22nd Floor, Arlington, VA 22209

Thomas
A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

R.
Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

/acp

[1] “Tr.” references refer to the transcript of the oral
argument.

[2] 30 C.F.R. §
75.400 provides:

Coal
dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel- powered and electric equipment
therein.

[3] Citations concerning section 75.400 violations
constituted approximately 10 percent of all citations issued in 2013 and 11
percent of all citations issued in 2014. MSHA, Most Frequently Cited Standards,
www.msha.gov/stats/top20viols/top20viols.asp (accessed January 28, 2015).

[4] The Commission
has not concluded that a history of violations can elevate a violation, not
otherwise meeting the statutory criteria for a flagrant designation, to a
repeated flagrant violation. Rather, the Commission has held that past violative
conduct may be considered in determining whether to cite a condition as a
repeated flagrant violation. Wolf Run Mining Co., 35 FMSHRC 536,
541 (Mar. 2013). Of course, a history of violations is always relevant
in the unwarrantable failure analysis and in the penalty assessment process. See
30 U.S.C. § 820(i). The maximum enhanced statutory penalty for a flagrant
violation is $220,000.00 (adjusted for inflation). 30 U.S.C. § 820(b)(2). An
aggravated history of violations may warrant the imposition of this maximum
penalty, rather than a lower penalty in the enhanced penalty range. With regard
to notice based on an aggravated violation history, I note that inexcusable
(unwarrantable) conduct and the degree of gravity of a violation are mutually
exclusive concepts. In other words, a violation can be attributable to unwarrantable
conduct even though it is determined to be non-significant and substantial (“S&S”)
in nature. See, e.g., Manalapan Mining Co., Inc., 36
FMSHRC 849 (Apr. 2014) (remanding Order No. 7511478 (Belt No. 2) for re-analysis
of the unwarrantable issue with respect to a violation that was deemed to be
non-S&S in nature). In the final analysis, it is the facts surrounding the
violation that determines      the degree of gravity irrespective of the degree
of negligence. Predicate violations    arbitrarily selected by the Secretary
during an arbitrarily designated time period preceding the subject
alleged flagrant violation are irrelevant to the issue of whether the cited
condition satisfies the statutory criteria for a flagrant violation.  

[5] Judge Paez has similarly noted that the “significantly
and substantially contribute to a hazard”

language in section
104(d)(1) that provides a basis for an S&S designation is notably different
from the provisions of section 110(b)(2) that provide a basis for the gravity
element of a flagrant designation. Stillhouse Mining, LLC, 33
FMSHRC 778, 800 (Mar. 2011) (ALJ).

[6] The first
inquiry in statutory construction is “whether Congress has directly spoken to
the precise question at issue.” Chevron USA, Inc. v. Natural Res. Defense
Council, Inc., 467 U.S. 837, 842 (1984). If a statute is clear and
unambiguous, effect must be given to its language. Id. at 842-43. However,
if the statute is ambiguous or silent on a point in question, a second inquiry
is required to determine whether an agency’s interpretation of a statute is a
reasonable one. See Id. at 843-44; Thunder Basin Coal Co., 18
FMSHRC 582, 584 n.2 (Apr. 1996); Keystone Coal Mining Co., 16
FMSHRC 13 (Jan. 1994). Deference is accorded to “an agency’s interpretation of
the statute it is charged with administering when that interpretation is
reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460
(D.C. Cir. 1994).

[7] Imminent danger orders and flagrant violations do not
conflict with, nor are they substitutes for, each other. While both require
remedial urgency, an imminent danger requires a miner’s actual exposure to the
danger posed by the hazardous condition. Moreover, unlike a flagrant violation,
an imminent danger order may be issued regardless of the obviousness of the
hazard, and without regard to whether the hazard is attributable to the
negligence of the mine operator. In addition, an imminent danger order may be
issued even if the hazardous condition does not constitute a violation of a
safety standard.

[8] Presently before the Commission is Judge McCarthy’s
decision in American Coal Co.,      35 FMSHRC 2208 (July 2013) (ALJ), which
affirmed flagrant designations for routine coal dust accumulations in violation
of section 75.400 that were not in proximity to any ignition sources. The
flagrant designations were affirmed primarily because the violative
accumulations were ignored in that they were noted in the pre-shift examination
book but went unabated. Id. at 2236. However, the specific issue of the
requisite degree of causation for a flagrant finding, in the context of the
propriety of considering continued mining operations, is not currently before
the Commission.