FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

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

March 22, 2013

ORDER ON REMAND

            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 Country, West Virginia. The MSHA 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 Act. 30 U.S.C. §814(d)(2).

            When proposing a penalty for the alleged violation, the Secretary waived the regular assessment procedures and determined a special assessment was warranted. See Petition, Exhibit A, Narrative Findings for a Special Assessment. The Secretary stated, “The violation [is] considered to be flagrant; that is a reckless or 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 serious bodily injury.” In answering the petition the company admitted the Commission’s jurisdiction but denied the violation and challenged the inspector’s S&S and unwarrantable findings.

            After the case was assigned to the Court several procedural issues caused it to be stayed. However, on January 31, 2011 the stay was effectively dissolved and the matter was scheduled

for hearing. That hearing was canceled when the parties advised the Court that they agreed and could stipulate to all relevant matters except the Secretary’s designation of the violation as “flagrant.” Because the parties believed the “flagrant” issue was amenable to a decision based on cross motions for summary decision and briefs, the case was submitted to the Court on the basis of the parties motions and written arguments.

            In ruling on the motions (34 FMSHRC 337 (Jan. 2012) (Ord. Denying Cross Mots. For Par’l Sum. Dec.)) the Court accepted the parties’ stipulations that the alleged violation of section 75.400 occurred, that the violation was the result of Wolf Run’s high negligence, and that the violation was reasonably likely to result in permanently disabling injuries to 10 miners. 34 FMSHRC at 344. The Court found that the violation was in fact S&S and caused by the company’s unwarrantable failure to comply. Id. However, the Court observed that all aspects of the civil penalty case were not resolved by the stipulations, that the parties needed to stipulate to or submit evidence on four remaining civil penalty criteria – Wolf Run’s applicable history of previous violations, the size of the company’s business, 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. Id.

            With regard to the “flagrant” issue, the Court noted that the wording of section 110(b)(2) sets forth four elements that comprise a flagrant violation:

                        (1) A 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.

            34 FMSHRC at 345 (Citing Stillhouse Mining, LLC, 33 FMSHRC 778 (March 2011)).

            The Court then noted that there was no contention on the Secretary’s part that the violation was due to Wolf Run’s reckless conduct. Rather, the Secretary was charging that the violation was “flagrant” because Wolf Run exhibited “‘repeated failure[s] to eliminate’ known violations of section 75.400.” 34 FMSHRC at 345. Because the Secretary considered violations of section 75.400 cited prior to the violation cited in Order No. 6605922 when it determined the violation was flagrant, the Court concluded the Secretary’s interpretation of the term “repeated failure” as used in section 110(b)(2) (30 U.S.C. §820(b)(2)) did not comport with the Act. 34 FMSHRC at 345. To prove the violation the Court concluded the Secretary had to show that Wolf Run repeatedly failed to eliminate the violation of section 75.400 charged in the order and that Wolf Run could rebut the “flagrant” allegation by establishing that although its efforts proved unsuccessful, they were reasonable. 34 FMSHRC at 346. The Court further held that the Secretary had to show that the violation was “known” to Wolf Run and that it reasonably could have been expected to cause death or serious injury to one or more of Wolf Run’s miners. 34 FMSHRC at 347. The Court scheduled a hearing in Charleston, West Virginia to consider these issues. 34 FMSHRC at 346.

            After the order was issued, the parties requested the Court certify its ruling to the Commission for review, which the Court did. Cert. of Ord. (March 6, 2012). The Commission, after entertaining the parties’ briefs and hearing oral argument, reversed the Court. In its decision, the Commission concluded that “the plain language of section 110(b)(2) does not support the [Court’s] ruling that past violative conduct may not be considered in determining whether the cited condition represents a ‘repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard.’ ” 35 FMSHRC ___, slip op. 6. The Commission concluded that, “It would be inconsistent with the Act’s graduated enforcement scheme to allow consideration of an operator’s past violative conduct for an unwarrantable failure determination but to prohibit consideration of an operator’s past violative conduct in the assessment of a potentially higher flagrant ‘repeated failure’ penalty” Id. at 7. Therefore, the Commission held that the Secretary “may permissibly consider an operator’s past violation history in determining that a violation should be assessed as a ‘repeated failure’ flagrant violation within the meaning of section 110(b)(2) of the Act.” 35 FMSHRC ___, slip op. 8. It added, “We do not resolve which prior violations are relevant to the assessment of a ‘repeated failure’ violation at this . . . stage in these proceedings.” Id. The Commission remanded the case and directed the court to “set the matter for hearing and . . . determine whether the violation alleged in Order No. 6605922 was properly assessed as flagrant.”Id.

DIRECTIVE TO THE PARTIES

            The Court concludes that before it can comply with the Commission’s order to schedule the matter for hearing so as to determine whether the violation of section 75.400 was properly assessed as flagrant, the Court requires additional information from the Secretary. As the Commission notes, the Secretary’s position “has changed several times during the course of [the] litigation.” 35 FMSHRC ___, slip op. 4 n. 5. At this point it is not clear to the Court, and the Court assumes to the company, the basis upon which the Secretary is asserting the violation cited in Order No. 6605922 is “flagrant” within the meaning of the Act.

            Therefore, within 20 days of the date of this order, the Secretary is DIRECTED to submit a statement to the Court that succinctly states and specifically explains:

(1)  Her interpretation of the phrase, “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);

(2) Whether her interpretation requires notice and comment rulemaking and if not why; 

(3) Why the violation of section 75.400 cited in Order No. 6605922 meets her interpretation of “flagrant.”

            Once the Secretary statement has been filed, the company will have 15 days within which to respond after which the Court will consult with the parties regarding the date for a hearing, assuming one is necessary.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

Distribution: (1^st Class Mail)

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

W. Christian Schumann, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

Melanie Garris, U.S. Department of Labor, Office of Civil Penalty Compliance/ MSHA, 1100 Wilson Blvd., 25th Floor, Arlington, VA 22209-3939