Secretary of Labor v. Oak Grove Resources, LLC

Plain-English summary

MSHA designated extensive coal-dust and coal-fines accumulations along a conveyor entry as a repeated flagrant violation of 30 C.F.R. § 75.400. Judge Jerold Feldman identified the unresolved issue as whether those accumulations could substantially and proximately cause serious injury or death, rather than merely contribute fuel to a later fire or explosion. Earlier briefing had not resolved how current and potential ignition sources, past violations, and the statutory causation requirement fit together. The judge scheduled oral argument and directed the parties to address those questions while assuming the alleged accumulations were as extensive as the Secretary claimed. The order did not decide whether the violation was flagrant.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.1731(a)
• Outcome: Oral argument was scheduled on the legal requirements for a repeated flagrant designation.
• Key point: A repeated history alone cannot make a violation flagrant unless the present violation also satisfies the statute's heightened knowledge, causation, and gravity requirements.

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

February 4, 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
SCHEDULING ORAL ARGUMENT

Order
No. 8520664, issued on October 3, 2012, concerns an alleged flagrant violation of
the mandatory safety standard in 30 C.F.R. § 75.400. This mandatory standard prohibits
the accumulation of coal dust and coal fines in active workings. Assuming the significant
and substantial (S&S) violation of section 75.400 in fact occurred, and
that it was properly characterized as unwarrantable, the central issue in this
proceeding is whether the hard packed coal fines and float coal dust
accumulations, as cited by the Secretary, can constitute a “flagrant violation”
under section 110(b)(2). Section 110(b)(2) of the Act 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.

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) (emphasis
added).

Specifically,
Order No. 8520664 in Docket No. SE 2013-368 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.

(Emphasis added).

The Secretary seeks to designate
the cited condition in Order No. 8520664 as a repeated flagrant violation based
on two prior violations of section 75.400.[1]
Obviously, all flagrant violations are S&S in nature. However, the
overwhelming majority of S&S violations do not rise to the level of a flagrant
violation. In this regard, the threshold for an S&S violation is whether
there is a reasonable likelihood that the hazard contributed to by the
violation will result in a reasonably serious injury. In contrast, to
demonstrate a flagrant violation, it must be shown that it is reasonably
expected that the violation has, or will, directly and proximately cause
serious injury or death.

The Commission has concluded that past
violative conduct may be considered in determining whether to cite a condition
as a repeated flagrant violation. Wolf Run Mining Company, 35
FMSHRC 536, 541 (Mar. 2013) (remanding for reconsideration of whether a
violation was properly designated as flagrant). Clearly, a history of
violations may affect the appropriate civil penalty to be assessed. However,
the Commission has not articulated under what circumstances, if any, a history
of violations can elevate a violation, not otherwise meeting the statutory
criteria for a flagrant designation, to a repeated flagrant violation.[2]

Consequently, the parties were ordered
to brief the question of the circumstances, if any, under which an S&S
violation that will contribute to, rather than proximately cause, serious
bodily injury or death, could be elevated to a flagrant violation. See Order
Scheduling Briefing, 36 FMSHRC 815 (Mar. 2014) (ALJ). Notably, the
Secretary conceded in his response brief that “[b]oth 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.” Sec’y of Labor’s Response to Order Scheduling Briefing,
at 6 (Apr. 22, 2014). In other words, a violative condition that cannot reasonably
be expected to be the proximate cause of serious injury or death cannot be elevated
to a flagrant violation simply based on previous violations.

Following consideration of the parties’ briefs,
an Order Requiring Secretary’s Prehearing Statement (“Oak Grove Order”) was
issued that identified the requisite criteria for establishing a repeated
flagrant violation under section 110(b)(2) of the Mine Act. Specifically, the
requisite criteria are as follows:

1.      A
repeated flagrant violation is a flagrant violation that is demonstrated by
either:

a.       A
repeated failure to eliminate the violation properly designated as flagrant, or

b.      A relevant
history of violations that also meet the requirements for a flagrant violation
with respect to knowledge, causation and gravity, as enumerated below.

2.      A
flagrant violation must be a known violation that is conspicuously dangerous,
in that it cannot reasonably escape notice.

3.      A
flagrant violation must be the substantial and proximate cause of death or
serious bodily injury that has occurred or can reasonably be expected to occur.

a.       A
substantial and proximate cause is a dominant cause without which death or
serious bodily injury would not occur.

b.      A
serious bodily injury is a grave injury that results in significant
debilitating and/or permanent impairment.

c.       Such
injury is reasonably expected to occur if there is a significant probability of
its occurrence.

36 FMSHRC 1777, 1789-90 (Jun. 2014) (ALJ).[3]
The Oak Grove Order required the Secretary to file a prehearing brief
addressing whether the cited violative condition in Order No. 8520664 satisfied
the above criteria for repeated flagrant violation. The Secretary responded:

Because the accumulations included float
coal dust and coal dust, they constituted a significant and immediate source of
fuel for a mine fire or an immediate source of fuel for a coal dust explosion. An
operating conveyor belt system in an underground coal mine is an obvious and
significant source of sparking and burning hazards because of the presence of
the belt conveyor, belt rollers and other proximate sources of friction heat
and ignition. In the present case, hard packed coal fines were in contact with
moving rollers on the belt line in multiple locations along the belt entry. Given
these ignition sources, it is reasonably expected that, as normal operations
continued, serious and/or deadly injures from burns and smoke inhalation
would result from a fire or explosion. These injuries would be the proximate
and direct result of the fire or explosion because the accumulations would be
the necessary fuel source that, when combined with oxygen and an ignition
source, would cause the fire or explosion. Because the

accumulations existed over a number of
shifts and were known to multiple agents of the operator, this violation
standing alone constitutes a repeated flagrant violation.

Sec’y
Pre-Hearing Statement,
at 2 (Aug. 7, 2014) (emphasis added). The Secretary’s response did not directly
address the central question in this proceeding in that it conflates the
current presence of ignition sources with the potential for future ignition
sources, as well as the concepts of contributory and proximate causes of
injury. In essence, the Secretary’s response supports the conclusion that
virtually all prohibited coal dust accumulations in proximity to conveyer belts
can be properly designated as flagrant violations given potential ignition sources
that may arise during the course of continued mining operations.

The
Commission has been precluded from addressing the necessary criteria for
demonstrating a flagrant violation on several occasions. For example, in Conshor,
the Commission unanimously granted interlocutory review of the criteria for
demonstrating a repeated flagrant violation under section 110(b)(2). See Conshor
Mining LLC, 34 FMSHRC 349 (Feb. 2012). However, the Commission subsequently
granted the Secretary’s motion to vacate the order granting interlocutory
review after the Secretary deleted the subject flagrant designations. 34 FMSHRC
571 (Mar. 2012). Similarly, in Wolf Run, the Commission was prevented
from ultimately addressing the requirements for a repeated flagrant violation
after the Secretary agreed in settlement to modify the subject order by
removing the flagrant designation. Unpublished Decision on Remand Approving
Settlement in Wolf Run Mining Company, Docket No. WEVA 2008-1565, dated
Apr. 14, 2014; see also Wolf Run, 35 FMSHRC 536 (Mar. 2013).

Given the Secretary’s repeated failure
in this proceeding to meaningfully address the controlling question of law
concerning the threshold requirements for a flagrant designation in his
briefing and prehearing statements, I certified to the Commission for
interlocutory review the order requiring briefing with respect to the
Secretary’s burden of proof for demonstrating a repeated flagrant violation. Cert.
for Interloc. Rev., 36 FMSHRC 2397 (Aug. 2014) (ALJ);   29 C.F.R. §
2700.76(a)(1)(i). On September 9, 2014, the Commission denied interlocutory
review because the request for review concerned the propriety of ordering the
Secretary to submit a prehearing statement, rather than a controlling question
of law. 36 FMSHRC 2412 (Sept. 2014). Thus, the Commission concluded that
granting review at that time would amount to “an advisory opinion on an
abstract legal principle.” Id. at 2411.

Consequently, the threshold issue remains
whether the accumulation conditions, as cited in Order No. 8520664, satisfy the
above-enumerated criteria necessary to demonstrate a repeated flagrant
violation under section 110(b)(2). A further delay of a binding appellate
resolution of this important question is neither in the Secretary’s nor the
mining industry’s best interest. This issue, which concerns a controlling
question of law that will materially advance the ultimate disposition of these
proceedings, can best be resolved through oral argument. As such, this issue   IS
HEREBY SCHEDULED for oral argument on Wednesday, March 4, 2015, at 10:00 a.m.
The oral argument will be held at the Commission’s headquarters in Washington,
DC, at the following address:

Federal Mine Safety
and Health Review Commission

Richard V. Backley
Hearing Room

Fifth Floor, Room
511N

1331 Pennsylvania
Avenue, NW

Washington, DC 20004

In preparing for oral argument, the
parties should assume that the facts are viewed in a light most favorable to
the Secretary with regard to the nature and extent of the cited accumulations
in Order No. 8520664. In this regard, the issue is whether the cited accumulations
in Order No. 8520664 state a cause of action for a flagrant violation under the
aforementioned criteria. In particular, the parties should be prepared to
discuss the following:

1)      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). As such, can the coal dust accumulations in proximity to
properly-functioning conveyer belts, as cited in Order No. 8520664, be the proximate
cause of a fire or explosion? In answering this question, the parties
should address:

a.       The
distinction, if any, between “sources of ignition” and “potential sources of
ignition.” See Oak Grove Order, 35 FMSHRC at 1790;

b.      Whether
the cited coal dust accumulations themselves, rather than the ignition and
resultant combustion of such accumulations, can be properly considered to be
the proximate cause of a fire or explosion;

i.     
In addressing (b), the parties should consider the distinction, if any,
between a violation that contributes to a hazard, as required to support
an S&S designation, from a violation that, in and of itself, is a
substantial, proximate, and dominant cause of potential death or serious bodily
harm. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (holding
that the test for S&S is whether there is a reasonably likelihood that the
hazard contributed to by the violation will cause injury, and that the
Secretary need not prove a reasonable likelihood that the violation itself will
cause injury);

c.       Whether
propagation of the cited coal dust accumulations can be the proximate cause of
an explosion, or whether such propagation would be a post-explosion event;

d.      Given
the absence of a present ignition source due to a conveyer belt malfunction, as
reflected by Order No. 8520664, whether potential ignition sources (such as defective
heat-producing rollers or misaligned friction-producing belts) that occur
during the course of continued mining operations are sufficient to satisfy the
proximate cause criteria in section 110(b)(2);

e.       Violations
of Section 75.400 are the most frequently cited violations of mandatory safety
standards in underground coal mines.[4]
Therefore, if the answer to (d) is “yes,” the parties should address whether the
vast majority of section 75.400 violations satisfy the flagrant criteria in section
110(b)(2);

2)      It
is not uncommon for accumulations to contact rollers given the rollers’ close
proximity to the ground. As such, do “[t]he hard packed coal fines [that]
were in contact with [properly-functioning] moving roller[s] on the belt line
in multiple locations along the belt entry,” as cited in Order No. 8520664,
provide an adequate basis for a flagrant designation?

a.       If
the answer is “no,” under what circumstances can accumulations along and under
conveyer belt structures be properly designated as flagrant violations?

b.      In
addressing this question, the parties should be mindful of section 75.1731(a),
which provides that damaged rollers or conveyer belt components that
pose a fire hazard must be immediately repaired or replaced;

3)      The
parties should endeavor to stipulate to the location of the cited accumulations
in Order No. 8520664 with respect to their distance from the working face. In
this regard, the parties should submit a pertinent mine map;

4)     
Assuming the accumulations cited in Order No. 8520664 are conspicuously
dangerous because they can proximately cause substantial bodily injury or
death, the Secretary should address why the violation was attributed to high
negligence, rather than reckless conduct. And;             

5)     
In the final analysis, the parties should address whether designating
the coal dust accumulations cited in Order No. 8520664 as flagrant, conflates
the requirements for S&S and unwarrantable conduct with the requirements for
flagrant designations.

The parties may present any
additional facts, arguments, or case law that they deem appropriate.

Any person who plans to attend this
oral argument and requires special accessibility features and/or any auxiliary
aids, such as sign language interpreters, must request them in advance (subject
to the limitations set forth in § 2706.160(d)).

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

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

W.
Christian Schumann, Esq., U.S. Department of Labor, Office of the Solicitor,

1100
Wilson Blvd., Room 2220, Arlington, VA 22209

R.
Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500,

401
Liberty Avenue, Pittsburgh, PA 15222

/acp

[1] The predicate citations identified by the Secretary
are Order Nos. 4694424 and 8519255. Order No. 4694424 was issued on September
25, 2012, and is part of captioned Docket No. SE 2013-399. Order No. 8519255,
in Docket No. SE 2012-537, issued on December 22, 2012, was settled without
modification. Judge Zielinski approved Oak Grove’s agreement to pay the
$70,000.00 civil penalty proposed by the Secretary. Unpublished Decision Approving
Partial Settlement, dated Feb. 18, 2014.

[2]
The Secretary now asserts that a relevant history of violations also meeting
the requirements for a flagrant violation with respect to gravity and
negligence can serve as the basis for a repeated flagrant violation. Sec’y
Resp. to Order Scheduling Briefing, at 11 (Apr. 22, 2014). The gravity
penalty criterion under section 110(i) of the Mine Act is often viewed in terms
of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC
287, 294-95 (March 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 673, 681 (April 1987). Obviously, the gravity
of a flagrant violation, which requires the violation to be the substantial and
proximate cause of death or serious bodily injury that had occurred, or could
be reasonably expected to occur, is greater than the gravity associated with
the vast majority of violations.

[3] In his response brief, the Secretary asserted that
violations that expose miners to only “lost workdays or restricted duty” can be
designated as flagrant. Oak Grove Order, 36 FMSHRC at 1787 (citing Sec’y of
Labor’s Response to Order Scheduling Briefing, at 3). The Secretary also
argued that whether a violation itself will proximately cause serious injury or
death, or whether a violation will contribute to a hazard that will cause
serious injury or death, is a distinction without a difference that only shifts
the burden of proof. Id. at 1785 (citing Sec’y of Labor’s Response to
Order Scheduling Briefing, at 4). The Oak Grove Order declined to afford
the Secretary Chevron deference because the Secretary’s statutory interpretation
regarding the degree of causation and gravity necessary to designate a
violation as flagrant was determined to be unreasonable. Id. at 1786-88.
The Secretary did not seek interlocutory appeal of the denial of Chevron
deference.

[4] 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).