FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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DENVER, CO 80202-2500

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January 19, 2012

CERTIFICATION OF INTERLOCUTORY RULING

Before: Judge Feldman

            These matters present novel issues concerning the appropriate standard for imposing enhanced civil penalties under the flagrant violation 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 (“Act,” “Mine Act,” or “New Miner Act”),

30 U.S.C. § 820(b)(2). Section 110(b)(2) became effective on August 17, 2006, following the Sago Mine disaster. 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 failureto 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).

            The issue of the applicable evidentiary requirements to support a flagrant violation based upon a “reckless failure” to eliminate a known violation is currently before the

Commission. Stillhouse Mining, LLC, 33 FMSHRC 778 (Mar. 2011) (ALJ), PDR granted May 6, 2011. These proceedings concern the novel question regarding the necessary

evidentiary requirements to support a flagrant violation based on a “repeated failure” to eliminate a known violation.

            The controlling issue addressed in the Order dated November 28, 2011, which is being certified for interlocutory review, is whether a violation not attributable to reckless conduct can be deemed flagrant under 30 U.S.C. § 820(b)(2) based on a history of similar violations. Conshor Order, 33 FMSHRC ___ (Nov. 2011) (ALJ), slip op. at 15. The Secretary seeks to impose an enhanced penalty for each of three alleged unwarrantable violations of section 75.220(a)(1), which governs roof control plans. The subject violative conditions are cited in 104(d)(2) Order Nos. 7502867 and 7502879 issued in May 2007 contained in Docket No. KENT 2008-562, and in Order No. 7503222 issued in June 2007 contained in Docket No. KENT 2008-782. In the 104(d) Orders, the alleged violations were attributable to a high degree of negligence, rather than reckless conduct. To elevate the gravity of the cited conditions beyond unwarrantable failure, the Secretary has advanced the proposition that the cited violations are flagrant based on Conshor Mining, LLC’s (“Conshor’s”) history of similar unwarrantable violations.

            The November 28, 2011, Order held that the Secretary’s proffered interpretation of section 110(b)(2) with respect to a prior history of violations as a basis for a “repeated flagrant violation” could not be given effect because: (1) the Procedure Instruction Letter and News Release criteria for supporting a repeated flagrant violation are substantive rules that

were not promulgated in accordance with the notice-and-comment provisions of section 553 of the Administrative Procedure Act, 5 U.S.C. § 553; (2) in Berwind, 21 FMSHRC 1284, 1317 (Dec. 1999), the Commission declined to extend Chevron deference to specific tests for charges brought by the Secretary; and, (3) notwithstanding Berwind, the Secretary’s interpretation of section 110(b)(2) is not entitled to Chevron deference because the language of the section is unambiguous, and, alternatively because the Secretary’s interpretation is arbitrary and unreasonable. Id., slip op. at 3.

            Rather the November 28, 2011, Order determined that a violation is flagrant if, based on the facts surrounding the violation, the violative condition is “conspicuously bad, offensive, or reprehensible,” regardless of a mine operator’s record of prior violations. See The American Heritage Dictionary 667 (4^th ed. 2009). Id. at 12, 15. Namely, a violation is deemed to be flagrant if it is caused by egregious conduct underlying the cited condition as evidenced by a reckless or repeated failure to eliminate a known violation that could substantially and proximately cause death or serious injury. Id. at 15 (emphasis added).

            The November 28, 2011, Order noted that although the terms “reckless” and “repeated” both describe underlying conduct that supports a flagrant violation charge, a repeated flagrant violation may evidence greater culpability warranting a higher enhanced civil penalty. Id. at 4. Examples of repeated flagrant conduct are conspicuous dangerous violative conditions that are either indifferently overlooked during a series of pre-shift and on-shift examinations, or, are reported and ignored. Id.

            Consequently, the November 28, 2011, Order directed the Secretary to submit a prehearing statement addressing whether the particular facts surrounding the subject cited violations evidence, at a minimum, the requisite reckless conduct necessary to support flagrant designations, and if so, the basis for such allegations. The Secretary’s December 20, 2011, prehearing statement averred that: (1) in Order No. 7502867 the preshift examiner knew or should have known that the last row of permanent roof support exceeded the maximum allowable distance of four feet from the face; (2) in Order No. 7502879 the operator was once again cited for a similar roof control condition, which had been cited six days earlier in another area of the mine, for the last row of permanent roof support exceeding the maximum allowable distance of four feet from the face; and, (3) in Order No. 7503222 the subject roof control condition concerned sloughage that allegedly was “obvious, extensive and developed over time.” Sec’y Resp. at 1-4. Significantly, however, the Secretary’s prehearing statement did not allege that the cited conditions were attributable to reckless conduct.

            Conshor responded to the Secretary’s prehearing order on January 9, 2012. Conshor argues that a “knew or should have known” standard with respect to a cited violation does not provide an adequate basis for a flagrant designation. Conshor Resp. at 2. Since the Secretary has not contended that the subject alleged violations were attributable to recklessness, Conshor asserts that, consistent with the November 28, 2011, Order, “the Secretary may not seek penalties for flagrant violations for Order Nos. 7502867, 7502879, and 7503222.” Id. at 4. I construe Conshor’s response as a Motion to Dismiss the flagrant violation designations.

            Commission Rule 76(a)(1)(i) provides that a Judge may certify, upon his own motion, that his interlocutory ruling involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(1)(i). As noted, the question addressed in the November 28, 2011, Order, is whether a violation

that is not attributable to reckless conduct can be deemed flagrant under 30 U.S.C. § 820(b)(2) based on prior similar violations. This issue presents a novel and controlling question of law that requires interlocutory resolution.

            Resolution of this question will materially advance the final disposition of these proceedings. Rule 55 empowers a Judge to rule on offers of proof, receive relevant evidence,

and hold conferences for the purposes of effectuating settlement or simplifying the issues. 29 C.F.R. § 2700.55. While the predicate violations in this case have become final, continued uncertainty regarding whether the relevant evidence should be limited to the facts surrounding the violation, or, include a history of violations, interferes with the Judge’s ability to conduct and regulate the course of the hearing, or effectuate settlement.

            Finally, the grant of interlocutory review would provide an expeditious method of resolving fundamental questions that impact other flagrant cases currently before

the Commission.

ORDER

            In view of the above, the November 28, 2011, Order addressing the standard for adjudicating violations deemed flagrant by the Secretary based on a history of similar violations is certified for interlocutory review pursuant to Commission Rule 76(a)(1)(i).

                                                                             /s/ Jerold Feldman

                                                                             Jerold Feldman

                                                                            Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Christian P. Barber, Esq., U.S. Department of Labor, Office of the Solicitor,

618 Church Street, Suite 230, Nashville, TN 37219

Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, P.O. Box 1588,

Charleston, WV 25326-1588

/jel