FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 28, 2011

ORDER

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), which became effective on August 17, 2006, following the Sago Mine disaster, 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 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).

            I. Background

            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 necessary evidentiary requirements to support a flagrant violation based on a “repeated failure” to eliminate a known violation. The Secretary seeks to impose an enhanced penalty for each of three violations deemed flagrant based, in substantial part, on Conshor Mining, LLC’s (“Conshor’s”) history of violations. The “flagrant” designations rely on tests articulated in two Mine Safety and Health Administration (“MSHA”) Procedure Instruction Letters (“PILs”) that have expired, and an MSHA April 19, 2011, News Release. As a general matter, this test deems a violation as flagrant if the cited violation is attributable to an unwarrantable failure of a mandatory standard and there have been two prior unwarrantable violations of the same mandatory standard within the prior 15 months.

            Specifically, with respect to these proceedings, the Secretary contends that three alleged unwarrantable violations of section 75.220(a)(1), which governs roof control plans, are “repeated” flagrant violations based on Conshor’s payment of civil penalties for two unwarrantable section 75.220(a)(1) violations that occurred within 15 months of the three subject violations. 30 C.F.R. § 75.220(a)(1). The alleged violations, as well as the previous final predicate violations relied on by the Secretary, all concern different provisions of Conshor’s roof control plan.

            Whether a “repeated” flagrant violation can be based on a history of previous violations is a matter of first impression. Judge Manning rejected an operator’s assertion that the failure to abate a violation within the time limits set forth in the citation was a prerequisite to a repeated flagrant violation. Bowie Resources LLC, 33 FMSHRC (July 2011) (ALJ), slip op. at 12. Having determined that the subject violation was neither S&S nor attributable to an unwarrantable failure, Judge Manning vacated the flagrant allegation brought by the Secretary. Id. at 18. However, Judge Manning noted that he was not addressing whether a history of violations could be a basis for enhanced penalties under section 110(b)(2).Id. at 16-17.

            During the course of several telephone conferences, Conshor raised issues concerning the validity of the Secretary’s PIL criteria for a flagrant violation based on a repeated failure to eliminate a hazard. By Order dated July 8, 2011, the parties were requested to address several issues in writing, including the validity of the PIL criteria, and, whether Chevron deference applied. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The Secretary responded on August 9, 2011, stating that the PIL criteria only “establishes uniform procedures and guidelines for enforcement personnel to follow in evaluating potential flagrant violations and . . . it [does] not purport to bind the Administrators or the Office of Special Assessments.” Sec’y Resp. at 3. In addition, the Secretary asserted that the operative statutory language contemplates a prior history of similar violations because the term “repeated” means “done, or happening again.” Id. at 7 (dictionary citation omitted).

            Conshor responded to the Order Seeking Comment on August 10, 2011. As an initial matter, Conshor asserts the PIL criteria have no legal effect because it was not promulgated pursuant to the notice-and-comment provisions of the Administrative Procedure Act (“APA”). Conshor Resp. at 19-22. With respect to Chevron, Conshor argues that the Secretary’s test for a repeated flagrant violation is not entitled to deference because it is contrary to the plain meaning of the statute. Id. at 31-33. Alternatively, even if the provisions of section 110(b)(2) are ambiguous, Conshor contends that the Secretary’s interpretation is not entitled to deference because it is based on an informal policy letter that was not the subject of a rulemaking. See United States v. Mead Corp., 533 U.S. 218, 229, 231 (2001) (noting that agency policy statements far removed from the notice-and-comment process lack the force of law and may be denied Chevron deference). Id. at 13.

            As discussed below, the Secretary’s proffered statutory interpretation of the provisions of section 110(b)(2) with respect to a “repeated failure” cannot be given effect because: (1) the PIL and News Release criteria for repeated flagrant violations are substantive rules that were not promulgated in accordance with the notice-and-comment provisions of section 553 of the APA, 5 U.S.C. § 553; (2) in Berwind Natural Resources Corp., 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.

            It is axiomatic that examination of the statutory or regulatory language “is the starting point for its interpretation.” See Nally & Hamilton, 33 FMSHRC __ (Aug. 2011), slip op. at 4, (citations omitted). The term “flagrant” is defined as “conspicuously bad, offensive, or reprehensible.” The American Heritage Dictionary 667 (4^th ed. 2009). The plain language in section 110(b)(2) reflects that a flagrant violation is based on either a reckless or repeated failure to eliminate a known violative condition that can proximately cause serious injury or death.

Although the terms “reckless” and “repeated” both describe underlying conduct that supports a flagrant violation charge, they are distinguishable. A flagrant violation based on repeated conduct is, at a minimum, also reckless. However, a repeated failure to eliminate the condition deemed flagrant may constitute even greater culpability that evidences a conscious disregard warranting the maximum civil penalty under section 110(b)(2). 

            II. PIL Validity

            At issue are PIL Nos. I06-III-04 effective October 26, 2006, and I08-III-02 effective May 29, 2008, that set forth MSHA’s criteria for evaluating flagrant violations. PIL No. I06-III-04 expired on March 31, 2008, and PIL No. I08-III-02 expired on March 31, 2010. The Secretary does not contend, and MSHA’s retrieval system does not reflect, that any subsequent relevant PILs have been issued addressing the issue of flagrant violations. See http://www.msha .gov/regs/complian/pils/pil.htm.

            The PILs specifically outlined the requirements for a violation to be deemed flagrant based on a mine operator’s “repeated failure to make reasonable efforts to eliminate a known violation.” PIL Nos. I06-III-04 and I08-III-02 (emphasis in original). The requirements are:

1. Citation or order is evaluated as significant and substantial,

2. Injury or illness is evaluated as at least permanently disabling,            

3. Type of action is evaluated as an unwarrantable failure, and

4. At least two prior “unwarrantable failure” violations of the same safety or health standard have been cited within the past 15 months.

Id.

              The PILs were followed by a News Release issued on April 19, 2011. Although the PILs have expired, the Secretary continues to advance MSHA’s PIL criteria for a flagrant violation in the News Release. Consequently, the issue of the validity of the PIL criteria is relevant in these proceedings. With one exception, the News Release essentially repeated the PIL criteria. The News Release stated:

Flagrant violations cited by MSHA inspectors must meet specific evaluation criteria for reckless or repeated failure violations, including:

• A citation or order is evaluated as significant and substantial.

• An injury or illness is evaluated as at least permanently disabling.

• A citation or order is evaluated as an unwarrantable failure.

• Negligence is evaluated as reckless disregard.

• At least two prior “unwarrantable failure” violations of the same safety or health standard have been cited within the past 15 months.

(Emphasis added). Unlike the PIL repeated flagrant criteria that do not specify reckless conduct as an essential element, the News Release criteria apparently require evidence of a reckless disregard to support a charge that the cited condition constitutes a repeated flagrant violation.

            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 requires the Secretary to provide “[an adequate] description of the subjects and issues involved” to support a flagrant violation. 30 U.S.C. § 553(b)(3). However, contrary to section 553(b)(3) of the APA, the proposed provisions of section 100.5(e) essentially repeated section 110(b)(2) of the New Miner Act.

            On March 22, 2007, MSHA issued a final rule regarding the criteria and procedures for its proposed assessment of civil penalties in 30 C.F.R. Part 100. 72 Fed. Reg. 13592. Consistent with the prior notices seeking public comment, the final provisions of section 100.5(e), in essence, repeated the statutory language in section 110(b)(2) of the New Miner Act without any reference to the PIL criteria as the basis for a flagrant violation. Id. at 13622. 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).

            The Commission has determined it has subject matter jurisdiction to consider the validity of MSHA Program Policy Letters. See Drummond Company, 14 FMSHRC 661 (May 1992). Drummond dealt with policy letters that established criteria for implementing the Secretary’s program for higher civil penalty assessments at mines with an excessive history of violations. Id. at 667. The Secretary sought to create standards for imposing higher penalties for an excessive history under the general provisions of Part 100 of the regulations that allows MSHA to waive regular assessments if a violation warrants a special assessment. Id. at 680. 30 C.F.R. Part 100. The excessive history guidelines were not published in the Federal Register or otherwise adopted in accordance with the notice-and-comment requirements of section 553 of the APA. Id. at 668. 

            APA section 553 provides, in pertinent part:

§ 553. Rule Making

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does

not apply—

(A) to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice;

5 U.S.C. § 553(b). (Emphasis in original).

            In Drummond, the Commission noted that “the notice-and-comment process does not apply to ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.’” 14 FMSHRC at 683 quoting 5 U.S.C. § 553(b)(3)(A). Interpretive rules are non-binding and merely seek to clarify or explain existing law rather than create new law. Id. at 685. However, substantive or legislative rules require advance notice and public comment. Id. at 684. Both substantive and legislative rules impose obligations or otherwise affect private interests, the latter implementing congressional intent to effectuate a statutory purpose. Id. 684-85. Drummond invalidated the excessive history policy letters because they were deemed to be substantive in nature and there was no opportunity for public comment. Id. at 692.

            As in Drummond, the subject PILs and subsequent News Release were not published in the Federal Register. The criteria they seek to implement clearly are not exempt from notice-and-comment requirements. They are not interpretive because they do not purport to explain or remind operators of their exposure to flagrant violation penalties under section 110(b)(2) of the New Mine Act. Rather, the PILs are both substantive and legislative in design in that they seek to implement the new elevated operator liability contained in Section 110(b)(2) of the New Miner Act. In this regard, the PILs subject mine operators to enhanced penalties that are as much as three times greater than the maximum $70,000 civil penalty that is currently in effect for a non-flagrant violation. 30 U.S.C. §§ 820(a)(1) & (b)(2).

            Having concluded the PILs and News Release are substantive rather than interpretive, the focus shifts to whether they are exempt from APA requirements based on the second exception in section 553(b)(3)(A) as statements of general policy. The Secretary relies on National Mining Ass’n v. Sec’y of Labor, 589 F.3d 1368 (11^th Cir.), for the general proposition that agency policy procedures articulated in PILs are not subject to the APA because they do not establish a binding norm. Sec’y Resp. at 3-4. The Secretary’s reliance is misplaced. The PIL in National Mining related to extended cut plans, which by their very nature, are exceptions to the mandatory requirement in section 75.330(b)(2) that requires ventilation devices within ten feet of working faces. 589 F.3d at 1372. The PIL provided general procedures District Managers should consider when evaluating, on a case-by-case basis, whether to waive the provisions of section 75.330(b)(2). Id. The Court noted the PIL encouraged District Managers “to consider the individual facts” when evaluating each specific mine. Id. at 1372-73.

            Unlike the instant case where adjudicative authority is delegated to the Commission, the PIL in National Mining implemented the authority to approve ventilation and dust control plans delegated to the Secretary under section 303(a) and (b) of the Mine Act. 30 U.S.C. § 863(a) and (b). Additionally, unlike the instant case where the subject PILs “establish[ed] uniform procedures for . . . personnel to properly evaluate flagrant violations,” the PIL in National Mining encouraged individual case-by-case discretion. PIL Nos. I06-III-04, I08-III-02. Consequently, the Secretary’s assertion that the PIL criteria in National Mining and the PIL flagrant criteria are analogous is unavailing.  Moreover, in characterizing the PIL flagrant penalty criteria as expressions of policy that do “not mandate that any particular violation be assessed a flagrant penalty,” the Secretary, in effect, argues that the criteria do not affect operator rights given the de novo assessment authority of the Commission. Sec’y Resp. at 3. However, the Commission has recognized that the application of penalty criteria articulated in non-binding policy letters affects operator rights because the vast majority of cases are settled rather than contested. Drummond, 14 FMSHRC at 687. The exposure of operators to enhanced penalties under section 110(b)(2) in uncontested cases clearly affects private pecuniary interests. See Conshor Resp. at 22, citing, Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 806-07 (D.C. Cir. 2006) (noting that agency guidelines alleged to be “general statements of policy,” are not exempt from the APA’s notice-and-comment requirements if they “determine rights or obligations [or] occasion legal consequences”).

            Pronouncements affecting fundamental rights and liabilities are not relieved of their substantive effect simply because the actions are committed to agency discretion. In the final analysis, the Secretary may not escape notice-and-comment requirements by, in effect, labeling a major substantive addition to section 100.5(e) of her regulations governing special assessments as a mere interpretation. See Rag Shoshone Coal Corp., 26 FMSHRC 75, 83 (Feb. 2004).

            Accordingly, the subject PILs and News Release are substantive in nature and not otherwise exempt from the notice-and-comment requirements of the APA. Although the special assessment provisions of section 100.5(e) of the Secretary’s regulations were the subject of a rulemaking, the Secretary admits the PIL criteria were not open to public comment as that special assessment rulemaking did not explicitly identify MSHA’s test for flagrant violations. In this regard, the Secretary states:

We are unaware of any legislative history expressly addressing the Secretary’s authority to promulgate criteria for implementing the MINER Act’s flagrant penalty provisions. The Secretary does not claim that the PIL was promulgated pursuant to any statutory authority; rather, it merely provided guidelines for MSHA personnel to determine whether to recommend assessment of a violation as flagrant.

 Sec’y Resp. at 5-6.

            In view of the above, the Secretary’s assertion that the PIL criteria are non-binding guidelines that are exempt from APA rulemaking proceedings must be rejected. Consequently, as an invalid substantive rule, the PIL criteria cannot be given any legal effect in these matters. See Drummond, 14 FMSHRC at 690. Having determined that the PIL criteria are not binding, the analysis shifts to whether the Commission must defer to the Secretary’s flagrant violation test.

            III. The Commission’s Delegated Statutory Authority

The Commission discussed its delegated authority to adjudicate disputes arising under the Mine Act in Drummond. The Commission stated:

The Mine Act expressly empowers the Commission to grant review of  “question[s] of law, policy or discretion,” and to direct review sua sponte  of matters that are “contrary to … Commission policy” or that present a “novel question of policy.” Sections 113(d)(2)(A)(ii)(IV) & (B), 30 U.S.C. § § 823(d)(2)(A)(ii)(IV) & (B). Since Congress authorized the Commission to direct  such matters for review, we infer that Congress intended the Commission to possess the necessary adjudicative power to resolve them. . . . The reason the Commission was created by Congress and equipped with broad remedial powers and policy jurisdiction was to assure due process protection under the statute and, hence, to enhance public confidence in the mine safety and health program. See S. Rep. at 47, reprinted in Legis. Hist. at 635. Addressing claims of arbitrary         enforcement by the Secretary is at the heart of that adjudicative role.

14 FMSHRC at 674-75 (footnote omitted).

            Drummond was followed by the Supreme Court’s recognition of the Commission as an independent review body created by Congress to “develop a uniform and comprehensive interpretation” of the Mine Act. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994). The Court in Thunder Basin held that “exclusive review before the Commission [of novel issues concerning matters of statutory interpretation] is appropriate” given the Commission’s “particular expertise” in construing the Mine Act. Id. at 215.

            Under the Act, the Secretary proposes, and the Commission assesses, all civil penalties for contested violations of the Act and the Secretary’s regulations. See 30 U.S.C. §§ 815(a) & (d), 820(a) & (i). Under Part 100 of the Secretary’s proposed assessment procedures, regular assessments are calculated in accordance with the statutory penalty criteria in section 110(i) of the Act. 30 C.F.R. § 100.3(a)(1); 30 U.S.C. § 820(i). However, the Secretary may propose a special assessment if she determines that conditions warrant greater penalties. 30 C.F.R. §§ 100.3, 100.5(a).   In exercising its delegated authority, the commission must evaluate the Secretary’s proposed higher special assessments in contested cases. Increased penalties are warranted based on the gravity of the violation and the degree of negligence attributable to the operator. Likewise, the terms “significant and substantial,” “unwarrantable failure,” and “flagrant” are designations by the Secretary that elevate the degree of gravity, thus subjecting operators to increasing liability. The Secretary has the burden of proving every element of a violation. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). Consequently, the outcome of a civil penalty proceeding before the Commission is dependent on whether the Secretary can satisfy her burden of proving that a cited violation has been properly designated as S&S, unwarrantable and/or flagrant.

            Despite the Supreme Court’s recognition in Thunder Basin of the Commission’s role in resolving mine industry disputes, the Commission frequently defers to the Secretary’s interpretations of regulatory and statutory provisions under the two step formula in Chevron, 467 U.S. at 842-44 (1984). However, the Commission has elected to retain the authority, rather than defer to the Secretary, in matters concerning the appropriate tests for evaluating specific charges brought under the Act. The Commission in Berwind stated:

[W]e are not bound to defer to any specific test proposed by the Secretary . . . .

It is hardly open to question that this Commission has the authority to interpret the Mine Act and adopt a specific test or standards for adjudicating charges arising thereunder. See, e.g., Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (adopting four-part test for determining whether a violation is “significant and substantial” under section 104(d) of the Mine Act); Kenny Richardson, 3 FMSHRC 8, 16  (Jan. 1981) (adopting standard for determining liability under section 110(c)), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928         (1983).

Berwind, 21 FMSHRC at 1317; see also Emery Mining, 9 FMSHRC at 2001. So too, the Commission must retain the authority to establish the parameters for demonstrating a repeated flagrant violation under section 110(b)(2).

            It is significant that the Supreme Court’s 1984 Chevron analysis predates its 1994 holding in Thunder Basin. Thus, when read in the context of Thunder Basin, Chevron’s core holding that deference should be given to reasonable agency interpretations of ambiguous statutory provisions they administer can apply to interpretations of either the Secretary or the Commission.

            In the final analysis, neither the Commission nor its judges are “authorized representatives of the Secretary and [they] do not have the legal authority to charge an operator with violations of . . . the Mine Act [by modifying a citation].” Consolidation Coal, 20 FMSHRC 1293, 1298 (Dec. 1998) quoting Mettiki Coal Corp., 13 FMSHRC 760, 764 (May 1991). Given the distinct enforcement and adjudicatory authority delegated to the Secretary and the Commission, respectively, declining to defer to the Secretary for specific tests or standards for adjudicating charges brought under the Mine Act does not contravene Chevron deference commonly accorded to the Secretary. Significantly, the legislative history reflects “that an independent Commission is essential to provide administrative adjudication which preserves due process and instills much more confidence in the program.” Human Resources Committee, S. Rep. No. 95-181, Mine Safety and Health Act of 1977, at 47 (May 16, 1977). In light of the bifurcated statutory authority delegated to the Secretary and the Commission, authorizing the Secretary to define the requisite evidentiary parameters necessary to satisfy her burden of proof is anathema to the Mine Act’s goal of ensuring due process.

            IV. Statutory Interpretation

                        a. Plain Meaning

            As discussed below, the plain meaning of “flagrant violation” is a reckless or repeated failure to eliminate a known violative condition that can proximately cause serious injury or death. Whether a violation is properly designated as flagrant is based on the material facts concerning the degree of an operator’s negligence and the degree of gravity with regard to the hazard posed by the violation. See Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988) (noting that S&S designations are evaluated based on the particular facts of the violation). Although the Secretary’s proffered flagrant test is not controlling, a traditional Chevron analysis is helpful in arriving at the meaning of the language in section 110(b)(2). See Berwind, 21 FMSHRC at 1317.

            As an initial matter, the threshold issue in any case involving statutory construction is “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842 (1984); Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008); Thunder Basin, 18 FMSHRC 582, 584 (Apr. 1996). In determining whether legislative provisions are clear, the Commission has recognized that “[w]hen the meaning of the language of a statute . . . is plain, the statute . . . must be interpreted according to its terms, the ordinary meaning of its words prevails, and it cannot be expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 1989); Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a fundamental principle of statutory and regulatory interpretation that words that are not technical in nature “are to be given their usual, natural, plain, ordinary, and commonly understood meaning.” Western Fuels, 11 FMSHRC at 283 (citation omitted).

            In analyzing whether Congress expressed a specific intent on a particular issue, “courts utilize traditional tools of construction, including an examination of the ‘particular statutory language at issue, as well as the language and design of the statute as a whole.”’ Twentymile Coal Co., 30 FMSHRC at 750 (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). The statute’s legislative history and purpose, as well as related judicial precedent are also relevant to this analysis. Twentymile, 30 FMSHRC at 750-52; Emery, 9 FMSHRC 1997, 2001-04 (Dec. 1987). The examination of whether the statute expresses such a clear congressional intent is commonly referred to as a “Chevron Step One” analysis. Coal Emp’t Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989); Thunder Basin, 18 FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).

            Focusing on the statutory language of section 110(b)(2), as found by Judge Paez, a “reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard” occurs when:

. . . in light of all the facts and circumstances surrounding the violation, the operator does not take the steps a reasonably prudent operator would have taken to eliminate the known violation of a mandatory health or safety standard and consciously or deliberately disregards an unjustifiable, reasonably likely risk of death or serious bodily injury.

Stillhouse Mining, 33 FMSHRC at 805 (emphasis added).

            The operative statutory language contains two essential elements: (1) a repeated failure to eliminate a known violation; and, (2) the hazard posed by the violation reasonably could be expected to cause death or serious injury. Words must not be read in isolation. The first element of a repeated flagrant violation requires both knowledge of the violation and a repeated failure to eliminate it. With regard to scienter, an operator has knowledge of a violation if the violation remains unabated despite facts available to the operator that would provide a reasonable person with knowledge that the violation continues to exist. See Roy Glen, 6 FMSHRC 1583, 1586 (July 1984).

            The Secretary asserts that a history of similar violations constitutes “a repeated failure” under the provisions of 110(b)(2). However, the plain statutory language in section 110(b)(2) with respect to “repeated conduct” refers to a singular known violation, rather than a series of recurring violations. Thus, 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 a past history of violations. Relying on a violation history as a required element of a repeated flagrant violation, as the Secretary suggests, would superimpose an additional test that is not articulated in the statute. Simply put, the analysis must be guided by what Congress said in enacting section 110(b)(2), rather than by what the Secretary believes Congress meant to say. 2A Sutherland Statutory Construction § 46:3 at 165-69 (7^th ed.).

            Turning to the second element of the subject provision, it is apparent that “flagrant” violations are egregious violations that expose miners to serious bodily injury or death. Flagrant conduct is defined as conduct that is “[c]onspicuosly bad, offensive, or reprehensible.” The American Heritage Dictionary 667 (4^th 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).

            It is a general canon of statutory construction that “a word may be defined by an accompanying word, and ordinarily the coupling of words denotes an intention that they should be understood in the same general sense.” 2A Sutherland Statutory Construction § 47:16 at 352-53 (7^th ed.) (footnotes omitted). The terms “reckless” and “repeated” are coupled to describe conduct that is flagrant. Although these terms are similar, they are different in degree. A flagrant violation based on repeated conduct is, at a minimum, also reckless. However, the repeated conduct may also evidence a conscious disregard warranting the maximum civil penalty of $220,000 provided in section 110(b)(2).

            Ultimately a flagrant violation is one that is conspicuous and egregious. Whether the mine operator has committed previous unwarrantable violations of the same mandatory standard may affect the appropriate civil penalty. However, it is not material in determining whether the surrounding facts underlying the subject violation are “offensive” or “outrageously bad.” Rather, the specific facts related to the cited violation must be evaluated to determine if the mine operator recklessly or consciously disregarded an extremely hazardous condition. Thus, the Secretary’s emphasis on an operator’s past rather than current conduct to support a repeated flagrant violation is misplaced.

                        b. Legislative History and Statutory Scheme

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. Thus, it is not proper to confine interpretation to the one section to be construed.

2A Sutherland Statutory Construction § 46:5 at 189-201 (7^th ed.).

            Although enhancement of safety is a fundamental concern, it is clear that the New Miner Act, which was enacted in the aftermath of the Sago and Darby Mine disasters, is directed at preventing violations that will 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).

            Obviously, the general goal of the Mine Act is to enhance safety and deter unsafe conduct. However the purpose of section 110(b)(2) enhanced civil penalties is to provide an additional means to deter flagrant violations, i.e., known violations that could proximately cause death, rather than to promote mine safety in general. If the intent of Congress was to create a safer mining environment by deterring repeated unwarrantable violations, it would have amended section 110(a)(1) to raise the general statutory penalty ceiling of $70,000 currently in effect for each violation. It is clear that Congress was focused on the potential tragic consequences of extremely hazardous violations, rather than a history of unwarrantable conduct that is already addressed in section 104(d) of the Act, as the basis for a flagrant designation based on repeated conduct. Finally, the Secretary’s suggested inclusion of a 15 month schedule with respect to prior unwarrantable violations as predicates for a flagrant violation is inconsistent with the structure of the Mine Act. Section 104(d) of the statute already provides deterrence for repeated unwarrantable violations. Under section 104(d), after an inspector issues a citation for a violation that is S&S and is attributable to an unwarrantable failure, any subsequent citations issued for an unwarrantable failure during the same inspection, or within 90 days of the issuance of the initial predicate unwarrantable citation, result in a withdrawal order. Any unwarrantable citations thereafter also subject the mine operator to withdrawal orders until an inspection of the entire mine reveals no further unwarrantable conduct. This probationary period, during which operators are subject to withdrawal orders, is “among the Secretary’s most powerful instruments for enforcing safety.” Greenwich Collieries, 12 FMSHRC 940, 945 (citing UMWA v. FMSHRC, 768 F.2d at 1479). If Congress intended to create a “super 104(d) chain” by elevating the penalties for repeated unwarrantable violations within a designated probationary period it would have amended section 104(d).

                        c. Commission’s Existing Adjudicative Tests or Standards

            Furthermore, a disproportionate reliance on a previous history of violations is inconsistent with Commission tests for resolving charges under the Act such as S&S and unwarrantable failure. For example, in determining S&S the Commission’s focus is on the particular facts surrounding a violation to determine whether there is a “confluence of factors” that make serious injury or death more likely. Texasgulf, 10 FMSHRC at 501.

            With respect to unwarrantable failure, the Commission considers a variety of factors. Namely, the extent of a violative condition, the length of time that it has existed, whether the violation is obvious, whether the violation poses a high degree of danger, whether the operator has been placed on notice that greater efforts are necessary for compliance, and the operator’s compliance efforts made prior to the issuance of the citation or order. Enlow Fork Mining Co., 19 FMSHRC 5, 11-12, 17 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). While repeated similar violations may be relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard, the history of violations is not determinative. Peabody, 14 FMSHRC at 1263-64. Thus, relying on a history of violations to support a flagrant designation is inconsistent with the Commission’s tests for S&S and an unwarrantable failure.

                        d. Chevron Step Two Analysis

            As a final matter, assuming the operative statutory language is ambiguous, attention shifts under a “Chevron Step Two” analysis to whether the Secretary’s test for a flagrant violation is entitled to deference because it is a reasonable interpretation of the statutory provisions. Chevron, 467 U.S. at 843-44. Fundamentally, the Secretary’s proffered prerequisite for a repeated flagrant violation based on the selection of two prior violations within the previous 15 month period is arbitrary. Moreover, as discussed above, it is unreasonable because applying the term “repeated” to prior violations cannot be reconciled with the statutory language that a flagrant violation is manifest by a “repeated failure to make reasonable efforts to eliminate a known violation,” rather than a recurring failure to eliminate a series of violations.

            The Secretary’s proffered interpretation is further undermined by the facts in this case where the purported predicate violations of section 75.220(a)(1), as well as the subject violations, all concern different provisions of the approved roof control plan. Section 75.220(a)(1) is a general standard that applies to all provisions of an approved roof control plan. Section 75.220(a)(1) provides:

Each mine operator shall develop and follow a roof control plan, approved by the [MSHA] District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.

            It is true that provisions of approved roof control plans are enforced like mandatory standards. Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 408-09 (D.C. Cir. 1976). However, it is unreasonable to consider a history of failing to adhere to different sections of an approved roof control plan as violations of the same standard, given the plan’s numerous and varying provisions.

            Relying on a history of violations rather than focusing on the facts surrounding a violation to support a flagrant designation is inconsistent with the plain language of the statute, the legislative history, and the Commission’s tests for S&S and an unwarrantable failure. Rather, a “reckless or repeated” failure to eliminate a flagrant violation means what it says. Namely, a violation is deemed to be flagrant if it is caused by egregious conduct evidenced by a reckless or repeated failure to eliminate a known violation that could substantially and proximately cause death or serious injury. 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. In sum, 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).

            In light of the above, the PIL test as summarized in the April 19, 2011, News Release, can be given no legal weight or effect in these proceedings because it is an invalidly issued substantive rule that is contrary to the plain language of the statute. Consequently, the evidence in these proceedings regarding whether the cited conditions constitute flagrant violations under section 110(b)(2) will be limited to the facts surrounding the violations as they relate to the degree of Conshor’s culpability.

            Accordingly, the Secretary IS DIRECTED, consistent with this Order, to provide in writing, within 21 days, a prehearing statement specifying whether the flagrant allegations remain. Specifically, the prehearing statement should address 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 prehearing statement may facilitate a settlement in these matters, and it will narrow the issues, avoid the unnecessary introduction of non-relevant evidence, and establish parameters for rulings on questions of admissibility. See 29 C.F.R. §§ 2700.53(a)(2), (a)(6) and (b).

/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