FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

January 20, 2012

ORDER DENYING CROSS MOTIONS FOR PARTIAL SUMMARY DECISION

AND

NOTICE OF HEARING

            In this civil penalty case arising under sections 105 and 110 (30 U.S.C. §§ 815, 820) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”or “Act”) the Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration (”MSHA”) petitions for the assessment of a civil penalty of $142,900 for an alleged violation of mandatory safety standard 30 C.F.R. § 75.400. The Secretary charges that the violation occurred on November 14, 2007, at the Sentinel Mine of Wolf Run Mining Co. (“Wolf Run”), an underground bituminous coal mine located in Barbour County, West Virginia. MSHA’s inspector found that the violation was a significant and substantial contribution to a mine safety hazard (“S&S” violation) and was the result of the company’s unwarrantable failure to comply with the standard. The inspector therefore cited the alleged violation in an order (Order No. 6605922) issued pursuant to section 104(d)(2) of the Mine Act. 30 U.S.C. § 104(d)(2).

            When proposing a penalty for the alleged violation, the Secretary waived the regular assessment procedures and determined that a special assessment was warranted. See Petition, Exhibit A, Narrative Findings for a Special Assessment. The Secretary stated, “The violation was considered to be flagrant; that is, a reckless and repeated failure to make reasonable efforts to eliminate a known violation of a mandatory . . . safety standard that substantially and proximately caused, or reasonably could have been expected to cause death or a serious bodily injury.” Id. Upon receipt of the Secretary’s petition Wolf Run answered, admitting the Commission’s jurisdiction but denying the alleged violation. Answer 1. The company also challenged the inspector’s S&S and unwarrantable findings.

            The case was assigned to the court, which ordered the parties to confer regarding the possibility of a settlement. When a settlement proved impossible, the Secretary moved to consolidate the subject case, Docket No. WEVA 2008-1265, with Docket No. WEVA 2009-420, another case involving Wolf Run. In addition, the Secretary asked that the cases, once consolidated, be stayed pending the decision of Commission Judge Jerold Feldman in Wolf Run Mining Co., WEVA 2008-1816. The Secretary noted that one of the alleged violations in Docket No. WEVA 2008-1816 was Order No. 7101469, which charged an S&S and unwarrantable violation of section 75.400. The Secretary stated that, “When classifying Order No. 6605922 in WEVA 2008-1265 as a repeated failure flagrant violation, the Secretary based that determination, in part on the issuance of Order No. 7101469, which was issued under the same standard [section 75.400] for the same conditions in the same section of the mine several months prior.” Mot. for Consol. and Stay 3. The Secretary noted that according to MSHA’s procedures for evaluating repeated flagrant violations, the violations must meet the following criteria:

                        1. Citation or order is evaluated as [S&S],

                        2. Injury or illness is evaluated as at least permanently

                             disabling,

                        3. Type of action is evaluated as unwarrantable

                             failure,

                        4. At least two prior “unwarrantable failure”

                             violations of the same . . . safety standard have

                             been cited within the past 15 months.

            Mot. For Consol. and Stay 4 (citing MSHA Procedure Instruction

            Letter No. 108-III-02 (“PIL”), “Procedures for Evaluating Flagrant

            Violations” 2).            

            Asserting that it would be “necessary . . . to establish that Order No. 7101469 was properly issued and assessed as an unwarrantable failure violation under [section] 75.400 in order for the Secretary to satisfy the fourth criterion for a repeated failure flagrant classification of Order No. 6605922,” the Secretary requested the consolidated cases be held in abeyance until Judge Feldman ruled on the validity of Order No. 7101469. Mot. For Consol. and Stay 4.

            On April 26, 2010, and over the objection of Wolf Run, the court granted the Secretary’s motion but allowed discovery to continue. The court stated, “It makes no sense to hear evidence on the issue of whether the alleged violation of section 75.400 in Order No. 6605922 is ‘flagrant’ before knowing whether the question is actually at issue.” Consolidation of Proceedings 1. Subsequently, the Secretary and Wolf Run reached a settlement in which they in part agreed that Order No. 7101469 was S&S and unwarrantable. As a result, the stay was lifted and the captioned cases were noticed for hearing.

            On March 11, 2011, the parties advised the court that the sole issue between them was whether Order No. 6605922 (Docket No. 2008-1265) was properly assessed as “flagrant” within the meaning of section 110(b)(2) of the Mine Act as amended by the MINER Act. Counsels proposed that the issue be resolved through motions for partial summary decision, and the parties filed the motions.

THE MOTIONS

WOLF RUN

            Wolf Run asserts that it was improper for the Secretary to assess the proposed penalty for the violation of section 75.400 alleged in Order No. 6605922 under the “flagrant violation” provision of the Mine Act. The company points to the fact that the Mine Act defines a “flagrant violation” as 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)(1). The company notes that Order No. 6605922 does not allege that the violation of section 75.400 was the result of Wolf Run’s “reckless disregard.” Therefore, in determining that the violation was “flagrant” the Secretary relied on fact that the violation is the alleged result of Wolf Run’s “repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard” and her interpretation that a repeated violation includes a situation in which there have been, inter alia, “[a]t least two prior ‘unwarrantable failure’ violations of the same safety or health standard . . . cited within the past 15 months.” PIL No. 106-III-04 and PIL NO. 108-III-02. Therefore, relying on the PILs, the Secretary is asserting that the violation alleged in Order No. 6605922 is “flagrant” based on the fact that there were two prior unwarrantable violations of section 75.400 in the past 15 months. Wolf Run Mot. For Part. Sum. Dec. 5. The problem with this, according to the company, is that the two alleged unwarrantable violations “were not based upon the same conditions as alleged in Order No. 6605922.” Id. Thus, they were not “repeated” violations within the meaning of section 110(b)(2). Id.

            The company also challenges the Secretary’s reliance on the criteria for establishing “flagrant” violations as set forth in its PILs. It asserts that the PILs were not promulgated properly pursuant to Section 101 of the Act and “cannot be the basis of a proposed assessment or otherwise utilized by the Secretary to support a “flagrant” designation.” Mot. For Part. Sum. Dec. 5.

THE SECRETARY

            The Secretary counters that there are no genuine issues of material fact between the parties and that the facts establish that the violation of section 75.400 cited in Order No. 6605922 (along with other violations of the standard) establish Wolf Run’s “repeated . . . failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health standard that . . . reasonably could have been expected to cause, death or serious bodily injury.” Sec.’s Cross Mot. For Part. Sum Dec., citing 30 U.S.C. § Section 110(b)(2). The Secretary notes that on November 14, 2007, the inspector issued Order No. 6605922 to Wolf Run and the order cited the operator for “extensive accumulations of combustible loose coal, coal fines and float coal dust throughout the crosscuts and entries of the No. 1 . . . [s]ection of the Sentinel Mine.” Sec’s Mem. in Support of Her Cross Mot. 2. The Secretary states that the parties agree that the combustible material described in the order violated section 75.400. Id. 2, citing Sec.’s Stat’t of Mat. Facts (“SMF”) 4, 14. She also states that Wolf Run agrees that the violation resulted from the company’s high negligence and unwarrantable failure and that it was reasonably likely to cause permanently disabling injuries to 10 persons. Id., citing SMF 15-19. Finally, the Secretary asserts that Wolf Run agrees that the accumulations cited in Order No. 6605922 resulted from several shifts of neglect and that Wolf Run was on notice through previous conversations with MSHA that greater efforts were necessary for compliance. Id., citing SMF 9, 10. Therefore, “The only remaining issue is whether [the] violation [of section 75.400] meets the criteria to be assessed as a ‘flagrant violation’ pursuant to [s]ection 110(b(2) of the Mine Act.” Id. 3. In the Secretary’s view the “uncontested facts fully support a decision that the statutory criteria for a flagrant violation are satisfied.” Id. Therefore, Order No. 6605922 should be affirmed. Id.

            At the core of the Secretary’s “flagrant” assertion is her allegation that the violation of section 75.400 cited in Order No. 6605922 meets the “repeated failure” component of section 110(b)(2). The Secretary details her disagreement with the operator’s interpretation of section 110(b)(2). It does not, she maintains, require that a violation can only be deemed “flagrant” if the violation is predicated on a failure to correct a previously issued citation. Sec.’s Mem. in Support of Her Cross Mot. 4-5. In this regard, she notes Commission Judge Alan Paez’s statement in Stillhouse Mining, LLC, 33 FMSHRC 778 (March 2011), that “Given . . . Congress expressly omitted the requirement that section 110(b) involve a cited violation, the known violation at issue in a flagrant case need not have been previously cited by MSHA at the time the operator recklessly failed to eliminate it.” Sec’s Mem. In Support of her Cross Mot. 6, quoting 33 FMSHRC at 897. The Secretary also asserts that Wolf Run “ had repeatedly encountered dangerous accumulations in the sections, crosscuts and entries of the . . .[coal] seam [that it was mining], and had repeatedly failed to remove them.” Id. Therefore, the violation cited in Order No. 6605922 may be assess as flagrant under Section 110(b)(2). Id.

            The Secretary further argues that her interpretation of section 110(b)(2) is entitled to deference under either a Chevron I or Chevron II analysis. Sec’s Mem. in Support of Her Cross Mot. 7-8. Moreover, she argues that she did not engage in improper rule-making via the PILs. Id.

ANALYSIS

            Despite the numerous arguments, the issues are relatively simple. The matter is before the court because the Secretary has filed a petition seeking a civil penalty for an alleged violation of section 75.400. In general, under the statutory scheme, it is the Secretary who proposes the penalty, and if the Secretary establishes that a violation occurred, the judge is required to assess a penalty taking account of the civil penalty criteria of section 110(i) of the Act as well as any other applicable statutory penalty requirements or limitations. The judge’s assessment must be de novo and based on the facts established at trial or as otherwise agreed upon by the parties. Once findings on the statutory criteria have been made, a judge’s penalty assessment is an exercise of discretion. Sellersburg Stone Co., 5 FMSHRC 287, 292- 294 (May 1983); Canera Green, 22 FMSHRC 616, 620 (May 2000). Should the judge’s assessment substantially diverge from the penalty initially proposed by the Secretary, the Commission requires the judge to provide a sufficient explanation of the bases underlying his or her assessment. Sellersburg, 5 FMSHRC at 293.

            In this case the Secretary has proposed the assessment of a civil penalty of $142,900 for a violation of section 75.400, a violation that according to the Secretary is “considered serious,” that “resulted from [Wolf Run’s] high degree of negligence” and that is “considered to be flagrant.” Narrative Findings for Special Assessment. The Secretary explains in her narrative findings that she considers the violation to be flagrant because she believes it was the result of “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory . . . safety standard that . . . reasonably could have been expected to cause, death or serious bodily injury.” Id.

            Given that the parties have filed cross motions for partial summary decision, the court must look at the agreed upon facts and conclude whether they establish the existence of the violation. If so, a penalty is required and the court must determine its proper amount. In determining the penalty amount, the court must make and apply findings regarding the statutory civil penalty criteria. Further, in view of the Secretary’s “flagrant” allegation, the court must determine whether the violation was in fact flagrant, as that word is defined in section 110(b)(2), that is whether as the Secretary asserts the violation was the result of “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially or proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.” 30 U.S.C. 820(b)(2). Put another way, the primary issue before the court is whether the agreed upon facts are adequate to allow the court to find that the alleged violation occurred and if so, whether the facts allow the court to assess the civil penalty sought by the Secretary.

            Determining the existence of a violation and making findings regarding the relevant civil penalty criteria are exercises in which the court has engaged innumerable times. On the other hand, finding whether the violation was in fact flagrant as charged by the Secretary is an exercise new to the court and one that has been undertaken previously by few of the Commission’s judges. Although there is a paucity of precedent, the court has meaningful guidance. It is aware of both the decision of Commission Judge Alan Paez in Stillhouse Mining, LLC, 33 FMSHRC 778 (March 2011), and the order of Commission Judge Jerold Feldman in Conshor Mining, LLC, 34 FMSHRC __, Kent 2008-562, etc. (Nov. 28, 2011) (Order). In their rulings Judges Paez and Feldman parsed with care the language of the statutory definition of “flagrant,” examined the meaning of the definition’s words and tested the meaning within the context of the purpose of section 110(b)(2). Given their efforts the court sees no reason to reinvent the wheel, and the court will resolve the issues before it with an eye to the judges’ holdings.

            As the court has already noted, it views the primary issue before it as whether or not, given facts as they presently stand, it can find that the violation occurred, and if so, whether it can assess a civil penalty based on the statutory penalty criteria and the Secretary’s flagrant designation. Therefore, when ruling on the cross motions for partial summary decision, the court will first make a finding regarding the existence of the violation. Assuming it concludes that the facts establish the violation, the court will turn to the civil penalty criteria and to the Secretary’s S&S and unwarrantable allegations. Finally, the court will address whether the facts establish a flagrant violation. If the necessary predicate findings can be made, the court will then assess the penalty that it deems appropriate in view of the civil penalty criteria, the flagrant designation, and the deterrent purposes of the Act.

THE VIOLATION

            The parties have stipulated to “the facts set forth in Section 8 of . . . Order 6605922.” Letter of Joanne Jarquin to The Court (March 16, 2011), Stip. 1. The court accepts the stipulation. Section 8 of the order states in part:

                                    Combustible material in the form of fine coal,  loose coal, and float coal dust was deposited and

                        allowed to accumulate on the mine floor of the [No.] 1,  001-0 MMU section at the following locations[:] 1.)

                        The [No.] 1 thru [No.] 8 connecting crosscuts and  extending from the feeder to the working faces. These

                        dry[,] black accumulations ranged from 6" to 19" deep,  3-4 feet wide in the center of the entry and 1-2 feet along

                        the rib lines. 2.) The [No.] 2 and [No.] 3 entries and connecting cross-cuts of the Left Intake from spad [No.] 724

                        in [No.] 2 entry and inby spad [No.] 812 in [No.] 3 entry  extending inby to the section feeder. These powder-dry

                        reddish accumulations were from 3-4 feet wide in the  center of the entry and were suspended into the air when

                        traveling though this area and carried to the working  face. 3.) [No.] 6 entry from spad [No.] 910 inby to 11

                        block. These dry black accumulations measured up  to 15 inches deep, extending 1-2 feet from each rib

                        for the entire length of the entry. This section has  entries and cross-cuts on 76' centers. The combined

                        accumulations including connecting cross-cuts covers

                        over 4,268 feet.

            Order No.6605922; 605922-01.

            As the parties agree, the conditions described in the order clearly violate section 75.400 which requires in part that “[c]oal dust, including float coal dust . . . [and] loose coal . . . shall be cleaned up and not be permitted to accumulate[.]” The violation existed as charged.

THE CIVIL PENALTY CRITERIA

            Having found the violation, the court looks to the statutory civil penalty criteria. With regard to negligence, the parties have stipulated that the violation was due to Wolf Run’s “high” negligence. Letter of Joanne Jarquin to the Court (March 16, 2011), Stip 1. The court accepts the stipulation and finds that Wolf Run’s negligence was indeed high.

            With regard to gravity, they have stipulated that the violation was reasonably likely to result in permanently disabling injuries to 10 persons. Letter of Joanne Jarquin to the Court (March 16, 2011), Stip 1. The court accepts the stipulation and finds that the violation was indeed serious.

            The parties also have stipulated that the order in which the violation is alleged was “properly issued as a [s]ection 104(d)(2) S&S Order.” Letter of Joanne Jarquin to the Court (March 16, 2011), Stip.1. The court interprets this as an agreement that the inspector’s S&S and unwarrantable failure findings are valid, and the court so finds.

             The parties have not stipulated to four of the civil penalty criteria. Rather, they have informed the court that they have “reached stipulations regarding the penalty amount that should be assessed . . . depending on the outcome of the motions for partial summary decision.” Letter Joanne Jarquin to the Court (March 16, 2011), Stip 3. While the parties are free to suggest a penalty they deem appropriate in light of the civil penalty criteria and the court’s resolution of the “flagrant” issue, it is the court that must ultimately determine the amount of the penalty. It cannot do so based on the parties’ motion for partial summary decision without the parties agreeing on the other civil penalty criteria. Therefore, the parties shall provide the court with stipulations regarding Wolf Run’s applicable history of previous violations, the size of Wolf Run, the effect of any penalty assessed on Wolf Run’s ability to continue in business, and the good faith of Wolf Run in attempting to rapidly abate the violation of section 75.400. 30 U.S.C. §820(I). When they do so they also may advise the court of the penalty they deem appropriate for the violation.

THE FLAGRANT NATURE OF THE VIOLATION

            The remaining issue before the court is whether Wolf Run’s violation of section 75.400 was “flagrant.” As Judge Paez noted in Stillwater, based on the language of the statute, there are four elements that comprise a flagrant violation:

                        (1) Reckless or repeated failure to make reasonable efforts to eliminate

                        (2) A known violation of a mandatory health or safety standard

                        (3) (a) That substantially or proximately caused or

                             (b) Reasonably could have been expected to cause

                        (4) Death or serious bodily injury.

            Stillhouse, 33 FMSHRC at 802.

WOLF RUN’S REPEATED FAILURE

            The Secretary is not charging that the violation of section 75.400 was caused by Wolf Run’s recklessness. Rather, it is the company’s “repeated failure to make reasonable efforts to eliminate” violations of section 75.400 that is the basis for the Secretary’s “flagrant” designation. Sec’s Cross Mot. For Part. Sum. Dec. 13. The court concludes, however, that based on the record as it now stands the court is unable to determine the propriety of the Secretary’s designation. The problem is that the Secretary’s interpretation of “repeated failure” does not comport with the Act. As Judge Feldman pointed out, “A repeated flagrant violation requires both knowledge of the violation and a repeated failure to eliminate it.” Conshor Mining, LLC, at 11. Giving the words of the statute a straightforward (and the court believes a proper) reading, Judge Feldman found that “the phrase ‘repeated failure’ when read in context refers to current repeated conduct evidenced by a failure to eliminate the hazard posed by the discrete violation alleged to be flagrant, rather than [by] a past history of violations.” Id. 12. The court agrees with Judge Feldman that “[r]elying on a violation history as a required element of a repeated flagrant violation . . . superimpose[s] an additional test that is not articulated in the statute.” Id. Judge Feldman reasoned that in enacting section 110(b)(2) of the Act, Congress focused on the consequences of a repeated failure to eliminate an extremely hazardous violation, rather than on a history of past violations as the basis for a flagrant designation. See e.g., Conshor at 13. Judge Feldman’s reasoning is sound and the court, whose duty it is to interpret section 110(b) (2) as written not as how the Secretary wishes it had been written, sees no reason to depart from it.

            It is therefore the view of the court that to prove her “flagrant” allegation, the Secretary must not only establish that the violation of section 75.400 at issue could reasonably have been expected to cause death or seriously bodily harm (something which Wolf Run appears prepared to concede) but also that Wolf Run “repeated[ly] failed to make reasonable efforts to eliminate” [section 110(b)(2)] the “combustible material in the form of fine coal, loose coal, and float coal dust” cited in Order No. 6605922 that accumulated underground in the mine’s active workings. In other words, the Secretary must show that Wolf Run repeatedly failed to make reasonable efforts to eliminate the violation of section 75.400 charged in the order.

            Assuming the Secretary can establish that Wolf Run repeatedly failed to eliminate the violation of section 75.400 charged in the order, Wolf Run can rebut the “flagrant” allegation by established that although its efforts proved unsuccessful, they were reasonable.

THE STIPULATIONS AND THE NECESSARY PROOF

            Having reviewed the cross motions, the stipulations and the parties other submissions, the court finds that the question of whether or not Wolf Run repeatedly failed to eliminate the particular violation of section 75.400 cited in the subject order cannot yet be answered. The issue is fact-intensive and testimony concerning the cited conditions and the commissions or omissions of Wolf Run will determine the result.

            For these reason, the cross motions for partial summary decision are DENIED. The parties are advised that the matter will be called for hearing on Tuesday, April 17, 2012, at 8:30 a.m., in Charleston, West Virginia. Since the parties agree on the existence of the violation, its gravity, the negligence of Wolf Run in allowing the violation to exist, the violation’s S&S nature and Wolf Run’s unwarrantable failure, the parties will be expected to present evidence or an agreed upon stipulation regarding each of the civil penalty criteria for which no stipulation has yet been offered (applicable history of prior violations, size of business of Wolf Run, the effect of any penalty on Wolf Run’s ability to continue in business, the good faith of Wolf Run in attempting to achieve rapid compliance after the violation was cited). Further, to prove her allegation that the agreed upon violation of section 75.400 was “flagrant”, the Secretary should be prepared to present evidence regarding Wolf Run’s “repeated failure to make reasonable efforts to eliminate” the specific violation of section 75.400 cited in Order No. 605922. As Judge Paez stated, the court will then look at “all of the facts and circumstances surrounding the [cited] violation” and determine whether or not Wolf Run failed to “take the steps a reasonable prudent operator would have taken to eliminate the known violation of” section 75.400. Stillhouse Mining, 33 FMSHRC at 805.

            The Secretary will also need to show that Wolf Run knew of the violation, and I agree with Judge Feldman that she can do so either thorough evidence showing Wolf Run’s actual knowledge or through evidence showing there were facts available to Wolf Run that would have provided a reasonable person with knowledge of the violation and its continued existence. Conshor Mining at 11. Finally, as Judge Feldman stated, Secretary must show that the cited violation of section 75.400 was “egregious,” that is was “outrageously bad.” Id. 12 (quoting The American Heritage Dictionary 667 (4^th ed. 2009). For it’s part, Wolf Run will be at liberty to dispute such evidence and to offer its own evidence regarding its knowledge of the cited condition, its efforts to eliminate the condition and the violation’s allegedly egregious nature.

                                                            /s/ David Barbour

David Barbour

Administrative Law Judge

(202) 434-9953

Distribution: (1^st Class U.S. Mail)

Linda Henry, Esq.; Joanne Jarquin, Esq., Department of Labor, Office of the Regional Solicitor, The Curtis Center, Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 1910

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA 152222