Secretary of Labor v. The Monongalia County Coal Company, successor to Consolidation Coal Company

Plain-English summary

Three penalty cases involving alleged combustible-material accumulations had remained stayed while related litigation addressed the meaning of a repeated flagrant violation. Judge Jerold Feldman found that the pending Commission appeal in the related Monongalia case did not require further delay because the broad repeated-violation theory was not before the Commission. He concluded that the Secretary had not shown prejudice from lifting the stay and that moving the predicate cases forward could assist later proceedings if the broad theory became relevant. The Judge denied the Secretary's unopposed request to continue the stay and returned the cases to the hearing track. The cases were later settled.

Decision snapshot

• Cited standard and authority: 30 C.F.R. § 75.400; 30 U.S.C. § 820(b)(2)
• Outcome: The motion to continue the stay was denied, and the stay was lifted.
• Subsequent action: The three cases were later resolved by the settlement decision in weva-2015-0074-alj.
• Key point: A related appeal did not justify continued delay when the issue said to support the stay was not actually before the Commission.

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

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

THE MONONGALIA COUNTY COAL

COMPANY, successor to

CONSOLIDATION COAL COMPANY,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. WEVA 2015-0074

A.C. No. 46-01968-361667

Docket No. WEVA 2015-0425

A.C. No. 46-01968-371547

Docket No. WEVA 2015-0473

A.C. No. 46-01968-373553

Mine: Monongalia County Mine

ORDER DENYING
SECRETARY’S MOTION

TO CONTINUE STAY

AND

ORDER LIFTING
STAY

Before:            Judge Feldman

Before me is the Secretary’s Motion
to Continue the Stay in the captioned proceedings. The captioned matters
concern the term “repeated” as contemplated by the flagrant provisions of
section 110(b)(2) of Mine Safety and Health Act of 1977, as amended by the Mine
Improvement and New Emergency Response Act of 2006 (the “Mine Act”), 30 U.S.C
§820(b)(2). Section 110(b)(2) provides, in pertinent part:

[T]he term “flagrant” with respect to a
violation means a [1] reckless or repeated failure to make reasonable
efforts to eliminate a [2] known [3] violation of a mandatory health or safety
standard that [4] substantially and proximately caused, or reasonably could
have been expected to cause, [5] death or serious bodily injury.

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

The Commission has recognized
alternative interpretations of the term “repeated” in section 110(b)(2) for
accumulation violations of section 75.400, one “narrow” and one “broad.” [1]
Sec’y of Labor v. The American Coal Co ., 38 FMSHRC 2062,
2064-65 (Aug. 2016) (“ American Coal”) . Under the narrow interpretation
discussed in American Coal , an alleged flagrant violation can be
characterized as “repeated” if the duration of the accumulation violation,
without regard to a history of violations, is sufficient to satisfy the “repeated”
statutory criterion. Id . at 2065. Thus, the Commission’s narrow
interpretation of the term “repeated” concerns a discrete ongoing accumulation violation.
Id . In contrast, the Commission articulated that under its broad
approach an alleged flagrant violation of section 75.400 can be characterized
as “repeated” based on a recurrent-type violation analysis, i.e., analysis of a
history of several discrete yet similar violations. Id . at 2064.

The captioned proceedings are
related to an alleged “repeated” flagrant accumulation violation of section
75.400, cited in Order No. 8059209 in Docket No. WEVA 2015-0632, based on both
the narrow and broad approach. See Secretary of Labor v. Monongalia
County Coal Co ., 40 FMSHRC 1234 (July 2018) (ALJ) (“ Monongalia ”). The
captioned matters concern three alleged “predicate” accumulation violations
that the Secretary relies on to support the “repeated” characterization under
the broad approach for the alleged flagrant accumulation violation that is the
subject of Order No. 8059209 in Monongalia .

Monongalia and the three
captioned proceedings were consolidated and stayed on

May 12, 2016, pending a final decision in Secretary of
Labor v. Oak Grove Resources,

38 FMSHRC 957 (May 2016) (ALJ) (“ Oak Grove ”), which concerned
an alleged “repeated” flagrant accumulation violation. Unpublished
Consolidation Order and Stay Order (May 2016) (ALJ). The flagrant designation
was deleted by an interlocutory order on June 1, 2015, as Oak Grove stood
for the proposition that violative accumulations that cannot be reasonably
expected to proximately cause serious bodily injury or death cannot be elevated
to flagrant status simply because the violations are characterized as
“repeated” based on a history of violations. [2]
See Oak Grove , 38 FMSHRC 957, 960; Order Deleting Flagrant
Designation, 37 FMSHRC 1311 (ALJ). Oak Grove became final after neither
the interlocutory order nor the decision after hearing was appealed. Consequently,
the stay in Monongalia was lifted on June 14, 2016. Severance Order and
Prehearing Order, 38 FMSHRC 1573 (ALJ). However, the stay of the captioned
“predicate proceedings” remained in effect. Id .

A hearing in Monongalia was
conducted in March 2017. Despite the Secretary’s alternative reliance on a
broad approach, the scope of the hearing in Monongalia was limited to
whether the violation in Order No. 8059209 was properly characterized as
“repeated” under a narrow analysis, as it was reasonably likely that the
Secretary could demonstrate a prima facie case that the cited accumulations
existed for several shifts. [3] Order, 39
FMSHRC 423, 425

(Feb. 2017) (ALJ). Although the decision found that the
violation was “repeated” under the narrow approach, the flagrant designation in
Monongalia was deleted because the evidence failed to establish that the
cited accumulations could be reasonably expected to proximately cause serious
bodily injury or death, as required by the statute. 40 FMSHRC at 1257. The
Secretary’s appeal of Monongalia is currently before the Commission. Unpublished
Direction for Review (Sept. 6 2018). [4]

Following the July 2018, initial
decision on the merits in Monongalia , conference calls were conducted on
October 2, and December 4, 2018, to determine if the stay of the captioned
proceedings should be lifted as the “repeated” element had been demonstrated
under a narrow analysis. Despite my reservations, the parties expressed their
desire to continue the stay pending the resolution of the Monongalia
appeal. Consequently, the Secretary filed a motion in support of the
continuation of the stay on November 6, 2018 and a supplemental brief in
support of the stay on January 16, 2019. Given its unopposed nature, a ruling
on the parties’ request to continue the stay has been held in abeyance.

The Secretary’s motion to continue
the stay pending the Commission’s review of Monongalia is based on the
mistaken belief that the Secretary’s predicate theory was rejected in Monongalia
at the trial level. See Sec’y’s Mot. to Continue the Stay. at 2; see
also n. 4, infra . As noted, the evidentiary requirements for a broad
analysis are not before the Commission as Monongalia explicitly noted that
this question was moot as a consequence of a “repeated” finding under a narrow
analysis. 40 FMSHRC at 1258.

It is true that I considered the
Secretary’s predicate theory to be legally flawed based on a number of
concerns. Id . at 1258-60. However, the discussion was dicta in view of
the Commission’s prior expression of interest in considering the “Judge’s input
with respect to fashioning the criteria for a ‘broad’ analysis of the
‘repeated’ provision as it applies to accumulation violations.” Id .
(citing Secretary of Labor v. The American Coal Co ., 38 FMSHRC 2062,
2082 (Aug. 2016)).

While I am reticent to deny an
unopposed motion to stay, there is no basis for further delaying disposition of
the 104(d) orders that are the subjects of the captioned matters. The Secretary
has failed to demonstrate that he will be prejudiced by lifting the stay in
these civil penalty proceedings. Moreover, avoiding further delay of the disposition
of the captioned cases may expedite future proceedings in the unlikely event
that a broad “repeated” analysis becomes relevant.

With the benefit of hindsight, I
regret not having lifted the lengthy stay in the captioned proceedings. As
previously noted, it was clear that the Secretary could present a prima facie
case that the cited accumulations in Order No. 8059209 in Monongalia
satisfied the “repeated” element under a narrow approach. See n. 3, supra .
Thus, to facilitate the disposition of Monongalia , I saw no need to take
evidence with respect to the yet-to-be-decided criteria for establishing a
“repeated” accumulation violation of section 75.400 under a broad approach. However,
I did not foresee the Secretary’s insistence in continuing to advance his
predicate theory in furtherance of demonstrating the “repeated” element under a
broad analysis.

It has been more than 12 years
since the flagrant provisions have been added to the Mine Act. During this
period, the Secretary, the Commission, and Commission judges have failed to
fashion criteria for satisfaction of the “repeated” element under an
alternative broad approach for section 75.400 accumulation violations. With the
exception of violations caused by spillage, accumulation violations are
“repeated” by nature in that they develop and remain unabated for several
shifts. Consequently, continued efforts to identify the criteria necessary for
demonstrating the “repeated” element under a broad approach may be a search for
a solution to a non-existent problem. As evidenced by the lengthy stay in these
proceedings brought about by the unsuccessful efforts to identify the requisite
criteria for demonstrating “repeated” under a broad analysis, perhaps the time
has come to reconsider the propriety of continuing this longstanding uncertainty.

ORDER

In view of the above, the Secretary’s
request to continue the stay IS DENIED . Consequently, IT IS ORDERED
the stay in the captioned matters IS HEREBY LIFTED . A hearing date in
the captioned proceedings will be specified in a subsequent order.

/s/
Jerold Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

Bertha M. Astorga, Esq., Office
of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630 East,
170 S. Independence Mall West, Philadelphia, PA 19106 [email protected]

Jason W. Hardin, Esq., Fabian
VanCott, 215 South State Street, Suite 1200, Salt Lake City, UT 84111-2323
[email protected]

Artemis D. Vamianakis, Esq., Fabian VanCott, 215 South State
Street, Suite 1200, Salt Lake City, UT 84111-2323 [email protected]

/nm

[1] Section 75.400
provides:

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

30
C.F.R. § 75.400.

[2] The May 3, 2016,
decision in Oak Grove preceded the Commission’s August 30, 2016, American
Coal discussion of alternative broad and narrow analyses for demonstrating
the “repeated” element of a flagrant violation.

[3] Order No.
8059209 notes that the subject accumulations were extensive in nature and
contained footprints in areas traveled by belt examiners three times each day. Monongalia ,
40 FMSHRC at 1241.

[4] The Commission’s
unpublished September 6, 2018, Direction for Review denied Monongalia’s Petition
for Discretionary Review (“PDR”). Although the Commission granted the Secretary’s
Amended PDR concerning the deletion of the flagrant designation, the deletion
was not based on the Secretary’s failure to demonstrate the “repeated” element.
Consequently, satisfaction of the “repeated” element is not before the
Commission on review in Monongalia .