Secretary of Labor v. Oak Grove Resources, LLC

Plain-English summary

Oak Grove faced a repeated flagrant designation for extensive combustible accumulations under 30 C.F.R. § 75.400. Judge Jerold Feldman concluded that the Secretary's proposed test did not adequately distinguish a flagrant violation from an ordinary significant-and-substantial violation. He ruled that a repeated flagrant violation required a known and conspicuously dangerous condition, substantial and proximate causation, a significant probability of death or grave injury, and qualifying prior violations or a repeated failure to eliminate the same violation. The judge ordered the Secretary to submit a detailed pre-hearing statement identifying the proof supporting those elements for the cited order. The ruling did not decide whether the accumulation violation occurred or whether it was ultimately flagrant. Later orders certified the legal issue, and the Commission denied interlocutory review.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(b)(2); 30 C.F.R. §§ 75.400 and 100.5(e)
• Outcome: The Secretary was ordered to provide a detailed pre-hearing statement addressing the judge's criteria for a repeated flagrant violation.
• Subsequent history: The ALJ later certified the flagrant-proof issue, and the Commission denied interlocutory review in se-2013-301-commission.
• Key point: The order required proof that a flagrant violation was conspicuously dangerous and substantially and proximately tied to a significant probability of death or grave injury.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

June 12, 2014

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 REQUIRING
SECRETARY’S PRE-HEARING STATEMENT

Before: Judge Feldman

These proceedings require a
determination of the evidentiary criteria that must be demonstrated to support the
imposition of enhanced civil penalties provided in 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 (“Act” or “New Miner Act”), for an
alleged repeated flagrant violation. 30 U.S.C. § 820(b)(2). Section 110(b)(2),
which became effective on August 17, 2006, following the Sago and Darby Mine
disasters, increases the maximum civil penalty for extremely hazardous
violations deemed “flagrant.” 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. 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).

A primary subject in these matters
is 104(d)(2) Order No. 8520664 in Docket No. SE 2013-368, issued on October 3,
2012.[1]
The order alleges a repeated flagrant violation under section 110(b)(2) of the
Act based on an alleged violation of the mandatory safety standard in section
75.400 of the Secretary’s regulations that is attributable to high negligence.[2]
30 C.F.R.

§ 75.400. Order No. 8520664 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 Pieces
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.

Section 75.400, which prohibits combustible coal
dust accumulations, is the most frequently cited mandatory standard in
underground coal mines. For example, citations concerning section 75.400
violations constituted 10.47 percent of all citations issued in 2013, and
currently constitute 10.61 percent of all citations issued in 2014. MSHA, Most
Frequently Cited Standards, www.msha.gov/stats/top20viols/top20viols.asp
(accessed June 12, 2014).

I.                  
Background

Section 8(b) of the New Miner Act
required the Secretary to “promulgate final regulations with respect to
penalties” to codify the new enhanced penalty structure. Pub. L.

109-236, § 8(b), 120 Stat. 501 (2006). To implement special
assessments for flagrant violations, MSHA issued notices of proposed rulemaking
for section 100.5(e) in the Secretary's Part 100 Criteria and Procedures for
Proposed Assessment of Civil Penalties. 30 C.F.R. §100.5(e), 71 Fed. Reg. 53054
(Sept. 2006); 71 Fed. Reg. 62572 (Oct. 2006). The notice-and-comment provisions
of the APA require the Secretary to provide “[an adequate] description of the
subjects and issues involved” to support a flagrant violation. 5 U.S.C. §
553(b)(3). On March 22, 2007, MSHA issued a final rule regarding its procedures
for proposing enhanced civil penalties under the New Miner Act. 30 C.F.R. §100.5(e).
However, the final provisions of section 100.5(e) merely repeat the statutory
language in section 110(b)(2), without providing adequate notice with respect
the evidentiary criteria necessary to support a flagrant designation . [3]
72 Fed. Reg. at 13622.

The Commission has previously had the question of
the required elements for a repeated flagrant violation before it on several
occasions based on requests for review of interlocutory decisions of Commission
Judges who had addressed this issue. Conshor Mining, LLC, 34 FMSHRC 349
(Feb. 2012) (granting interlocutory review); Wolf Run Mining Company,

35 FMSHRC 536 (Mar. 2013) (remanding for reconsideration of
whether a violation was properly designated as flagrant). On each occasion, the
Secretary removed the subject flagrant violation designation, thus precluding a
final Commission ruling on this question. Conshor, 34 FMSHRC 571 (Mar.
2012) (vacating the order granting interlocutory review); Wolf Run, __
FMSHRC __ (Apr. 14, 2014) (ALJ) (approving settlement). However, in its remand order
in Wolf Run, prior to the withdrawal of the relevant flagrant designation,
the Commission concluded that the plain language of section 110(b)(2) supports
that past violative conduct may be considered in determining whether to cite a
condition as a repeated flagrant violation. 35 FMSHRC at 541, citing 30
U.S.C. § 820(b)(2).

However, in Wolf Run, the
Commission did not address: whether such previous violations must be
unwarrantable; whether the prior violations must have violated the same mandatory
standard as the condition alleged to be flagrant; and whether there is a
specified time period for the occurrence of such previous violations. The
Commission had no basis for doing so as the Secretary did not clearly articulate
in his opening brief, or during oral argument, the relevant parameters
concerning prior conduct. The Secretary avers that any parameters for
predicates that he considers for a repeated flagrant violation are merely
guidelines for enforcement personnel. Sec’y Resp. at 9. As such, the
guidelines are not based on the Secretary’s statutory interpretation and are
beyond the scope of this proceeding. [4] 

The Commission also has never addressed the
requisite degree of gravity necessary for a flagrant designation. The degree of
gravity is determined by the seriousness of the violation. Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citations omitted). In this
regard, the Secretary acknowledges that “gravity is essentially a function of
(1) the potential for injury and (2) the likely nature of such injury.” Sec’y
Resp. at 3.

Even if the Secretary ultimately prevails in
this matter with respect to the issues of the fact of the violation and the
significant and substantial (“S&S”) and unwarrantable designations in Order
No. 8520664, a hearing cannot proceed without determining the proper
evidentiary requirements for demonstrating a repeated flagrant violation under
the statutory provisions of section 110(b)(2). Consequently, on March 19, 2014,
an Order Scheduling Briefing (“Order”) was issued requesting the Secretary to
address a number of substantive issues concerning the

criteria necessary to support a repeated flagrant violation.
36 FMSHRC 815 (Mar. 19, 2014) (ALJ).[5]
The Secretary’s response was filed on April 22, 2014. Oak Grove’s reply to the
Secretary’s response was filed on May 8, 2014.[6]

In response to the March 19, 2014,
Order, the Secretary agreed 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.” Sec’y
Resp. at 6.  In other words, the Secretary acknowledges that a violation which
does not otherwise satisfy

the gravity requirements in section 110(b)(2) cannot be
elevated to a flagrant violation solely based on prior predicate violations. With
respect to the requisite degree of gravity, the Secretary has departed from his
prior position that a flagrant violation requires a likelihood of injury of at
least a permanently disabling nature,[7]
now arguing that most lost workday injuries are sufficient to support a
flagrant violation. Sec’y Resp. at 3.

With respect to distinguishing the terms
“flagrant” and “S&S,” obviously, all flagrant violations are S&S, however,
not all S&S violations are flagrant.[8]
The Secretary fails to adequately distinguish violations that are only S&S
from S&S violations that are properly designated as flagrant. In so doing,
the Secretary seeks to greatly expand the scope of the flagrant provisions of
section 110(b)(2) beyond that contemplated by Congress. Consequently, as
discussed below, the Secretary’s interpretation of the section 110(b)(2)
criteria for a flagrant violation is unreasonable.  

II.               
Chevron Framework

A definitive articulation of the elements
necessary for a repeated flagrant violation that is consistent with the
statutory language and the legislative intent is essential for implementing the
flagrant provisions of section 110(b)(2). The Commission has traditionally
established the parameters for the Secretary’s burden of proof with respect to
charges brought under the Act. Berwind Natural Resources Corp., 21
FMSHRC 1284, 1317 (Dec. 1999) (noting longstanding caselaw reflecting
the Commission’s authority to interpret the Mine Act and adopt specific tests
or standards for adjudication, such as the evidentiary requirements for S&S
designations and for personal liability) (citations omitted). The vague and
inconsistent criteria proffered by the Secretary for demonstrating a repeated
flagrant violation has created a void that must be filled by the Commission. As
the factors considered by the Secretary with respect to timeframe, number of
previous violations, and whether such previous violations must cite the same
mandatory standard, are merely guidelines, the focus shifts to whether the Secretary’s
interpretation of the statutory gravity criteria for a flagrant violation is
both reasonable and consistent with the relevant legislative history.

The first inquiry in statutory
construction is “whether Congress has directly spoken to the precise question
at issue.” Chevron U.S.A., 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. Deference to an agency's
interpretation of the statute may not be applied “to alter the clearly
expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988) (citations omitted). Traditional tools of construction,
including examination of a statute's text and legislative history, may be
employed to determine whether “Congress had an intention on the precise
question at issue,” which must be given effect. Coal Employment Project v.
Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989) (citations omitted). The
examination to determine whether there is a clear Congressional intent is
commonly referred to as a “Chevron I” analysis. Id.; see Thunder
Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996); Keystone Coal Mining
Corp., 16 FMSHRC 6, 13 (Jan. 1994).

If, however, the statute is
ambiguous or silent on a point in question, a second inquiry, commonly referred
to as a “Chevron II” analysis, is required to determine whether an
agency's interpretation of a statute is a reasonable one. See Chevron,
467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2; Keystone,
16 FMSHRC at 13. 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). The agency's interpretation of the statute is entitled to
affirmance as long as that interpretation is one of the permissible
interpretations the agency could have selected. See Joy Technologies, Inc.
v. Sec'y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied,
520 U.S. 1209 (1997); Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275,
1277 (10th Cir. 1995).

Chevron I - Congress has directly
addressed that flagrant violations can only be reserved for the most
blatant and egregious violations

The operative statutory definition of “flagrant”
provided by Congress is:

[T]he 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).

Placing the statutory definition in
the context of the legislative history, although enhancement of safety is a
fundamental concern, it is clear that the intent of the New Miner Act, which
was enacted in the aftermath of the Sago and Darby Mine disasters, was to
address, and hopefully prevent, violations that could proximately cause future
tragedies. The Senate Report that accompanied the New Miner Act stated:

The year 2006 began with the tragic
loss of 12 miners at the Sago Mine in West Virginia, followed closely by the
deaths of two miners at the Alma Mine, also in West Virginia; and some 4 months
later by the deaths of 5 miners at the Darby Mine in Harlan County, Kentucky. The
death toll in the first 5 months of the year was nearly 50 percent higher than
the entire previous year. Additionally, the rise in coal production in the last
few years raises the committee's concerns that there is the potential for a
return to higher numbers of accidents and fatalities. Improvements in safety
come about because of a continued re-examination and revision of safety and
regulatory practices in light of experience. These tragedies serve as a somber
reminder that even that which has been done well can always be done better.

Committee on Health, Education, Labor, and Pensions, S. Rep.
No. 109-365, Mine Improvement and New Emergency Response Act of 2006, at
2 (Dec. 6, 2006).

In construing statutory language,
it is fundamental that:

A statute is passed as a whole and not
in parts or sections and is animated by one general purpose and intent.
Consequently, each part or section should be construed in connection with every
other part or section to produce a harmonious whole.

2A Sutherland Statutory Construction § 46:5 (7th
ed.). In this regard, the “Act’s overall enforcement scheme . . . provides for
the use of increasingly severe sanctions for increasingly serious violations or
operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828
(Apr. 1981). Thus, the Act provides increasingly severe sanctions: for S&S
violations cited under section 104(a); for violations attributable to unwarrantable
failures 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 $220,00.00.

The fact that Congress intended
that it is only the most blatant and egregious violations that can be cited
under section 110(b)(2) is clear from the language of the statute that
characterizes the subject violation as “flagrant.” A flagrant act is defined as
conduct that is “[c]onspicuously bad, offensive, or reprehensible.” The American
Heritage Dictionary 667

(4th ed. 2009). The American Heritage Dictionary
includes the following discussion of relevant synonyms:

flagrant, glaring, gross,
egregious, rank: [t]hese adjectives refer to what is conspicuously bad or
offensive. Flagrant applies to what is so offensive that it cannot
escape notice: flagrant disregard for the law. What is glaring is
blatantly and painfully manifest: a glaring error; glaring contradictions.
Gross suggests a magnitude of offense or failing that cannot be condoned
or forgiven: gross ineptitude; gross injustice. What is egregious
is outrageously bad: an egregious lie. Rank implies that the term
it qualifies is as indicated to an extreme, violent, or gross degree: rank
stupidity; rank treachery.

Id. (emphasis in original). As discussed below, it is
the conspicuously bad, offensive, or reprehensible nature of the cited
violation with respect to its significant risk of causing death

or serious bodily injury that warrants designating the
violation as flagrant. However, although the plain language of section
110(b)(2) requires that the violation be egregious, the specific threshold
criteria to warrant a designation of a flagrant violation requires
interpretation of the statutory provisions.

B.     Chevron
II - The Secretary’s interpretation of the gravity requirements in
section 110(b)(2) with respect to the causation, likelihood, and severity of
injury, is unreasonable

In Wolf Run, the Secretary alluded to any
“fail[ure] to make reasonable efforts to eliminate at least one previous
violation prior to failing to make reasonable efforts to eliminate the
violation alleged to be flagrant” as an adequate predicate for a repeated
flagrant designation. 35 FMSHRC at 539 n. 5 (citing S. Opening Br. at 17). In
his response to the March 19, 2014, Order, the Secretary now asserts that in
order to demonstrate a repeated flagrant violation, it must be demonstrated
that the operator:

(1) Knew of one or more [ . . . ]
predicate violations, (2) failed to make reasonable efforts to eliminate the
prior violation(s) known to the operator, and (3) that one or more of these [prior]
violations reasonably could have been expected to cause death or serious bodily
injury.

Sec’y Resp. at 10. Thus, the Secretary now asserts that any
predicate violation relied upon to support a repeated flagrant violation must be
a known violation that satisfies the “threshold gravity and negligence required
by section 110(b)(2).” Id. at 11. As the Commission has determined that
the previous violation history is a relevant consideration, and the Secretary
has acknowledged that the requisite degree of gravity for reckless and repeated
flagrant violations is the same, the only remaining issue for resolution is the
degree of gravity required to satisfy a repeated flagrant violation. See
pages 3-4, supra.

1.      The
March 19, 2014 Order

As a general matter, the Order
required the Secretary to compare the degree of gravity required for a flagrant
designation under section 110(b)(2) with the degree of gravity required

for the statutory term “significant and substantial”
contained in section 104(d)(1) of the Act, the criteria for which has been
articulated in Mathies and its progeny.[9]
36 FMSHRC at 817-18, citing Mathies Coal Co., 6 FMSHRC 1, 3-4
(Jan. 1984). In this regard, the Order directed the Secretary to consider the
distinction, if any, between the Commission’s determination that an S&S
finding “requires that the hazard contributed to [by the violation] will
result in an event in which there is an injury,” with the language of section
110(b)(2) that the violation itself must be the actual or expected
proximate cause of death or serious bodily injury. Id. at 818, citing
U.S. Steel Mining, 6 FMSHRC 1834, 1836 (Aug. 1984) (citing 3 FMSHRC at 3-4)
(emphasis added); see also Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (holding that the third element of Mathies only requires the
Secretary to prove a reasonable likelihood that the hazard contributed to by
the violation will cause injury, not that the violation itself will cause
injury).

In briefing this matter, the Secretary was also directed to
be mindful of the fact that an S&S analysis is based on a variety of
changing conditions normally encountered during continued mining operations in
the presence of an unabated hazard. 36 FMSHRC at 818, citing U.S. Steel
Mining, 7 FMSHRC 1125, 1130 (Aug. 1985) (citing 6 FMSHRC 1573, 1574 (July
1984)).

2.      The
Secretary’s Proffered Interpretation in Response

As previously noted, the Secretary
has acknowledged that gravity is a function of the likelihood and seriousness
of an injury. Sec’y Resp. at 3. With respect to the potential likelihood of
injury, the Secretary argues there is essentially no distinction between
routine S&S and flagrant gravity requirements. In this regard, the
Secretary states “there is no material distinction between the ‘reasonably
likely to result’ inquiry [under the third element of Mathies] and the
‘reasonably could have been expected to cause’ inquiry under section
110(b)(2).” Id.

With respect to causation as it
relates to the likelihood of injury, the Secretary acknowledges that a
prerequisite for a flagrant violation is that “the violation itself”
must be reasonably expected to cause death or serious injury. Sec’y Resp. at 4
(emphasis in original). The Secretary distinguishes this from an S&S
violation, which only requires that “the hazard contributed to by the
violation” must be reasonably likely to contribute to an event that causes
injury of a reasonably serious nature. Id. (emphasis in original). However,
the Secretary maintains that this distinction is not substantive, and only
shifts the burden of proof. Id. Rather, the Secretary argues that,
“[n]evertheless, this distinction does not support a conclusion that [flagrant]
violations require greater gravity than [S&S] violations.”  Id.

With respect to the severity of the
potential injury, the Secretary argues that “most injuries that result in lost work
days/restricted duty” can be properly designated as flagrant violations. Sec’y
Resp. at 3. Obviously, all injuries involving serious bodily injury are
injuries of a reasonably serious nature. However, as discussed below, the
question is whether lost workday injuries that do not result in any residual
debilitating and/or permanent impairment constitute serious bodily injuries as
contemplated by section 110(b)(2).

The
Secretary argues that his litigating position in administering the Mine Act
before the Commission is entitled to full Chevron deference. Sec’y Resp.
at 14. However, the Secretary’s litigating position is only entitled to Chevron
deference if his trial strategy is based on a reasonable interpretation and
application of the subject statutory provisions.[10]
In this matter,

an analysis is required to determine whether deference is
owed to the Secretary’s proffered interpretation with respect to his comparison
of the degree of gravity required for a violation

that is only S&S in nature and a violation that is
properly designated as both S&S and flagrant. In determining whether the
Secretary’s statutory interpretation is reasonable, it is essential to distinguish
the terms ‘proximate cause,’ ‘reasonably be expected to cause,’ and ‘serious
bodily injury’ as they relate to flagrant violations, from the terms ‘contributing
cause,’ ‘reasonable likelihood,’ and ‘injury of a reasonably serious nature,’
that are hallmarks of an S&S designation.

3.      Disposition

a.       Proximate
Cause vs. Contributing Cause

In addressing the meaning of
proximate cause in section 110(b)(2), it is necessary to differentiate a
proximate cause from a contributing cause. A flagrant designation requires

the subject violation to be the substantial and proximate
cause of a death or serious bodily injury that has occurred, or could be
reasonably expected to occur. 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 include “direct
cause,” “primary cause” and “legal cause.” Id. The magnitude of the
seriousness of a flagrant violation, given its close causal connection to death
or serious bodily harm, or the reasonable expectation thereof, differentiates

a flagrant violation from an S&S violation.

A contributing cause is “a factor
that – though not the primary cause – plays a part in producing a result.” Id.
at 212. An S&S finding “requires that the hazard contributed to [by

the violation] will result in an event in which there is an
injury.” U.S. Steel Mining, 6 FMSHRC at 1836. Thus, unlike a flagrant
violation which is a primary cause of the potential injury itself, an S&S
violation is a contributing cause to the existence of a hazard that may
ultimately result in injury. This is a significant substantive distinction,
rather than only a manifestation of the required burden of proof as asserted by
the Secretary. Sec’y Resp. at 4. This substantive distinction, which the
Secretary denies, renders the Secretary’s interpretation of the gravity
requirements in section 110(b)(2) unreasonable.

b.      Reasonably
Expected vs. Reasonable Likelihood

The term “reasonably,” as in
“reasonably expected” for a flagrant designation, or “reasonably likely” for an
S&S designation, in context, means “rationally,” “adequately,” or
“sufficiently.” Roget’s 21st Century Thesaurus (3rd
ed. 2009), available at http://thesaurus.com. The comparison between the
terms “expected” and “likely” is a matter of degree. Synonyms

for “expected” include “certain,” “about to happen,” and
“impending.” Id. Synonyms for
“likelihood” include “chance,” “possibility,” “prospect,” “tendency,” and
“trend.” Id. In other words, an expected event is much more
certain to occur than a likely event. It is clear that the probability of injury is far greater when miners
are exposed to flagrant violations as compared

to violations
that are only S&S, particularly in view of the proximate causal role played
by such egregious violations. Thus, the Secretary’s contention that there is no
material difference between the “reasonably likely to result” standard under Mathies
and the “reasonably could have been expected to cause” standard under
section 110(b)(2) is unpersuasive. See, Sec’y Resp. at 3.

c.       Bodily
Injury vs. Injury of a Reasonably Serious Nature

Although the Secretary now argues
that a potential injury associated with a flagrant violation need only result
in lost workdays, it is significant that the Secretary initially believed that
the potential injury must be evaluated as at least permanently disabling. See
Sec’y Resp. at 3; see also n. 7, supra. Moreover, the degree
of severity of injury contemplated by the statute must be viewed in the context
of well-accepted principles of statutory construction. The meaning of doubtful
words in an ambiguous statute may be determined by “the coupling of words
denot[ing] that they should be understood in the same general sense.” 2A Sutherland
Statutory Construction § 47.16 (7th ed.). Associating the expectation of a
“serious bodily injury” with the expectation of death evidences a Congressional
intent that only grave injuries, or the reasonable expectation of such injuries,
are contemplated by section 110(b)(2). When read in context, the statute
clearly contemplates a grave injury resulting in either a significantly
debilitating and/or a permanently disabling injury, as evidenced by a life
altering or life threatening condition. Such injuries must be distinguished
from acute and transitory injuries which resolve within a reasonable period of
time.

Moreover, although there are material
differences, it is significant that both a section 107(a) imminent danger order
and a section 110(b)(2) flagrant violation require the same degree of injury,
i.e., one that can be reasonably expected to cause death or serious bodily
injury. Wyoming Fuel Company, 14 FMSHRC 1282, 1291 (Aug. 1992) (holding
that an imminent danger order requires an expectation of “death or serious
physical harm” before the hazardous condition can be eliminated). It is
noteworthy that section 104(d)(1) provides that if an inspector finds that
“conditions created by [a] violation do not cause imminent danger, the
violation [could still be of] such nature as could significantly and
substantially contribute to the cause or effect

of a coal or other mine safety or health hazard.” In
promulgating section 110(b)(2), Congress required that a flagrant violation
must pose the same risk of death or serious bodily injury as required for an
imminent danger, rather than an injury of a reasonably serious nature as
required for an S&S violation. Thus, Congress, in effect, recognized that
flagrant violations are significantly more serious than most S&S
violations. Consequently, the Secretary’s interpretation that most actual or
potential lost workday injuries satisfy the requisite severity of injury
required by section 110(b)(2) is unreasonable.

It is noteworthy that 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. In fact, the plain language of section 107(a) states that
imminent danger orders can be issued in conjunction with citations seeking a
penalty under the provisions of Section 110.[11]

As a final note, limiting the
flagrant provisions of section 110(b)(2) to only the most serious of violations,
as intended by Congress, will not materially 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). 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

In view of the above, IT IS
ORDERED that, in order for the Secretary to establish that the cited
condition in Order No. 8520664 constitutes a repeated flagrant violation under
section 110(b)(2), the Secretary must bear the burden of demonstrating the
following criteria:

(1)   A repeated flagrant
violation is a flagrant violation[12]
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.[13]

(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.

The Commission’s rules authorize
the Judge to require parties to submit pre-hearing statements that will avoid
unnecessary proof, advance rulings on the admissibility of evidence, and aid in
the expedition of the hearing or the disposition of the case. See 29
C.F.R. §§ 2700.53(a)(2), (a)(6) and (b). Accordingly, IT IS ORDERED that
the Secretary provide, in writing, within 21 days of the date of this Order,
a statement regarding whether or not the conditions cited in Order No. 8520664,
as well as the conditions in any predicate citations the Secretary relies on to
establish the subject repeated flagrant violation, satisfy each of the above
enumerated evidentiary criteria.[14]

With regard to elevating the cited condition
to flagrant, the Secretary should state why the subject condition and its
predicate conditions are so conspicuously bad and hazardous that they cannot
reasonably escape notice. In this regard, the Secretary’s position that the
subject conditions could be reasonably expected to substantially and
proximately cause death or serious bodily injury should be supported by
identification of sources of ignition,[15]
if any, that are located in proximity to the cited accumulations. The Secretary
should also identify any other aggravating factors deemed relevant.

In specifically describing the
aggravating factors relied upon, the Secretary should be mindful of MSHA’s
Program Policy Manual concerning enforcement of section 75.400, which states,
in pertinent part:

Accumulations of coal dust, loose
coal, or the combination of the two offer serious fire and explosion hazards
and must be removed from the mine if, in the judgment of the inspector, they
would lead to an intensification or spreading of a fire or an explosion. In
evaluating whether the coal dust and loose coal would lead to an intensification
or spreading of a fire or an explosion, the inspector should consider all
the facts concerning the deposit. For example, float coal dust, loose coal
and/or coal dust deposited near working faces and in active haulage entries,
where sources of ignition are likely to be, are more hazardous than similar
deposits in back entries. . . .

In citing a violation, the inspector
should describe fully the conditions and practices, such as the location,
dimensions, etc. Imminent danger conditions normally can be considered to exist
when accumulations of coal dust, float coal dust, loose coal, and other
combustible materials are exposed to probable explosion and fire ignition
sources, and the conditions observed could reasonably be expected to cause
death or serious physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous conditions are
eliminated. There may be times when the inspector’s interpretation of what
is an accumulation of float coal dust, loose coal and coal dust and/or other
combustible materials will differ with the opinion of others. However, the
inspector should base his decision upon the facts surrounding each occurrence,
and document such facts as the dimensions, type, specific location, and all
other related factors. The inspector’s decision as to what is an accumulation
must be an objective one based on the facts or circumstances surrounding each occurrence.

V MSHA Program Policy Manual, Sec. 75.400, at 46-47 (Feb. 2003)
(updated Feb. 2014) (emphasis added).

/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

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

/tmw   

[1]
Docket Nos. SE 2013-301, SE 2013-352 and SE
2013-399 have been consolidated with

Docket
No. SE 2013-368 for judicial efficiency and because included therein is a
citation that

the
Secretary relies on as a predicate for the alleged flagrant violation in Order
No. 8520664.

[2]
Section 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.

30
C.F.R. § 75.400.

[3]
Section 100.5(e), as promulgated, provides:

Violations that are deemed to be
flagrant under section 110(b)(2) of the Mine Act may be assessed a civil
penalty of not more than $220,000. For purposes of this section, a flagrant
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 C.F.R. §100.5(e).

[4]
Guidelines, such as those contained in Procedure
Instruction Letters (“PILs”), that provide guidance to enforcement personnel
are not mandatory standards. Such PILs do not establish a binding norm and therefore
are not subject to the APA. Consequently, given the advisory nature of
the Secretary’s parameters for charging that a flagrant violation is repeated
in nature,

a
rulemaking proceeding is not required. 5 U.S.C. § 553(b)(3)(A); see also,
Nat’l Mining Ass’n, 589 F.3d 1368, 1371 (11th Cir. 2009).

[5]
Included among the issues the Secretary was directed
to address was whether a notice-

and-comment
rulemaking was necessary if the Secretary was proposing a binding norm with
respect to the parameters for predicates for repeated flagrant violations. 38
FMSHRC at 820. The Secretary has not proposed a binding norm with respect to
whether predicate violations

must
have violated the same standard as that alleged to be flagrant, and whether
there is a specific time period for, or frequency of, such prior violations.  In
the absence of a binding norm, a rulemaking is not required. Accordingly, this
Order deals solely with a Chevron analysis of whether the Secretary’s
interpretation of section 110(b)(2) is reasonable. See page 5-6, infra.

[6]
Oak Grove’s reply has been considered, although
not specifically referenced in this Order.

The
focus of this Order is the reasonableness of the Secretary’s interpretation and
application

of
the evidentiary burden that must be met to support a repeated flagrant
designation under

the
provisions of section 110(b)(2).

[7]
The Secretary’s initial guidelines for repeated
flagrant violations required that the cited condition pose a potential injury
or illness of at least a permanently disabling nature.

Conshor, 33 FMSHRC
2917, 2920 (Nov. 28, 2011) (ALJ) (citing PIL Nos. I06-III-04,
I08-III-02). The Secretary has also departed
from his initial guidelines requiring at least two prior unwarrantable failure
violations of the same mandatory standard that were cited within

the
fifteen month period preceding the issuance of the alleged flagrant violation. Id.

[8]
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 (March 28, 2011) (ALJ).

[9]
In order to establish that a violation is
properly designated as S&S, the Secretary must prove:

(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a measure
of danger to safety -- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to [by the violation] will result in an
injury; and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987) (approving Mathies criteria).

[10]
The Secretary’s reliance on Excel and Simola
for the proposition that the Secretary’s litigation position is entitled to
Chevron deference is misplaced. Secretary of Labor v. Excel Mining,
LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); Bill Simola, employed by United
Taconite, LLC, 34 FMSHRC 539, 543 (Mar. 2012). In both Excel and Simola,
the Secretary’s legislative stance was adopted on appeal because it was based
on his reasonable interpretation of statutory provisions that was consistent
with the legislative history and goals of the Mine Act. In Excel, the
Court found that the Secretary’s interpretation of the appropriate methodology
for calculating average dust concentrations was reasonable in view of the text
of the relevant provision, the role of the provision in the overall enforcement
of the Act, and the “longstanding duration” of the interpretation. 334 F.3d at
7-11. Similarly, in Simola, the Commission concluded that the
Secretary’s proffered interpretation with respect to the applicability of the personal
liability provisions of Section 110(c) of the Act to agents of limited
liability corporations was “consistent with the text of section 110(c)” and
“fully consistent with the legislative history.” 34 FMSHRC at 550.

[11]
Section 107(a) provides:

If, upon any inspection or investigation
of a coal or other mine

. . . the Secretary finds that an imminent
danger exists, such representative shall determine the extent of the area of
such mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
104(c), to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that such
imminent danger and the conditions or practices which caused such imminent
danger no longer exist. The issuance of an order under this subsection shall
not preclude the issuance of a citation under section 104 or the proposing of a
penalty under section 110.

30 U.S.C. 817(a) (emphasis added).

[12]
A condition designated as a repeated flagrant
violation may also be attributable to reckless conduct. Such violations may
warrant higher civil penalties under section 110(b)(2).

[13]
This criterion adopts the Secretary’s belief
that a previous violation relied upon as a predicate must “demonstrate the
threshold gravity and negligence required by section 110(b)(2).” See page 8, supra,
citing Sec’y Resp. at 11.

[14]
The failure to timely provide the requested
detailed pre-hearing statement may result in deletion of the repeated flagrant
designation.

[15]
The terms “sources of ignition” and “potential
sources of ignition” are not synonymous. It is not uncommon for coal dust to
accumulate on the mine floor along conveyors and in proximity to belt rollers. I
assume that the Secretary is not arguing that violations of section 75.400
based on accumulations in proximity to, or that are touching, properly
functioning rollers constitute

per se flagrant violations.