FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 20, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

            In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Administrative Law Judge David Barbour concluded that the Secretary of Labor may not permissibly consider an operator’s past violation history in determining whether a violation resulted from a “repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard,” so as to warrant the designation of a flagrant violation within the meaning of section 110(b)(2) of the Act, 30 U.S.C. § 820(b)(2). 34 FMSHRC 337, 345-46 (Jan. 2012) (ALJ). By subsequent order, the Judge certified his ruling for interlocutory review. We granted interlocutory review on the issue of whether the Judge correctly construed the “repeated failure” language of section 110(b)(2) of the Mine Act. For the reasons that follow, we conclude that the Judge erred.

I.

Factual and Procedural Background

            A.        The Mine Safety and Health Administration’s Implementation of the “Flagrant” Penalty Assessment Provision

            The “flagrant” penalty assessment provision of section 110(b)(2) of the Mine Act (see supra note 1) was added by section 8(a) of the Mine Improvement and New Emergency Response Act of 2006 (the “MINER Act”). Section 8(b) of the MINER Act required the Secretary to promulgate rules to implement the provision. Pub. L. No. 109-236, § 8, 120 Stat. 493 (2006).

            On March 22, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) published a final rule revising its penalty regulations and “implement[ing] the civil penalty provisions of the [MINER Act].” 72 Fed. Reg. 13592. The regulation relating to flagrant violations, 30 C.F.R. § 100.5(e), simply reiterated the language of section 110(b)(2) of the Mine Act.

            In addition, MSHA issued Procedure Instruction Letter (“PIL”) No. I06-III-04, which set forth “Procedures for Evaluating Flagrant Violations.” With respect to “repeated failure” flagrant violations, the PIL provided the following criteria:

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.

            On April 19, 2011, MSHA issued a press release entitled, “MSHA inspectors armed with new online tool to detect flagrant violations.” Release No. 11-568-NAT; 34 FMSHRC at 340 n.3. In the press release, MSHA announced that its Inspectors’ Portable Application for Laptops was equipped with “an online tool to alert federal inspectors that certain violations will be reviewed for special assessment as flagrant violations.” Release No. 11-568-NAT. The press release sets forth the same criteria that had been included in the prior Procedure Instruction Letters. See id. 

            B.        Factual Background

            Wolf Run operates the Sentinel Mine, an underground coal mine in Barbour County, West Virginia. 34 FMSHRC at 337. On November 14, 2007, MSHA Inspector Jeffrey Maxwell issued Order No. 6605922, pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), alleging a violation of 30 C.F.R. § 75.400. Id.; S. Opening Br. at 1-2. The order further alleged that the violation was significant and substantial (“S&S”) and resulted from Wolf Run’s unwarrantable failure to comply with the standard. Additionally, the violation was designated as a flagrant violation under the “repeated failure” provision of section 110(b)(2) of the Act.

            In recommending that Order No. 6605922 be assessed as flagrant, MSHA Inspector Maxwell stated that he followed the criteria in the PIL. Ex. B (Maxwell Dep.) at pp. 72-73 to WR Mot. for Partial Summ. Dec. The “flagrant” designation was based on Wolf Run’s history of previous violations during the preceding 11 months, in particular, the 29 citations and orders for violations of section 75.400. S. Opening Br. at 2. Two of those orders (Order Nos. 7101469 and 7101438, issued on July 19 and 25, 2007, respectively) were S&S and unwarrantable. Id. at 2-3. The Secretary proposed a penalty of $142,900 for the November 14, 2007, violation. Id. at 2.

            Wolf Run contested the proposed penalty, and the case was assigned to Judge Barbour. On March 11, 2011, the parties advised the Judge that the sole issue between them was whether Order No. 6605922 was properly assessed as “flagrant” within the meaning of section 110(b)(2) of the Mine Act. 34 FMSHRC at 339. The parties filed cross-motions for partial summary decision with the Judge.

            C.        Judge’s Orders

            On January 20, 2012, Judge Barbour denied the parties’ cross motions for partial summary decision. Id. at 346. Preliminarily, the Judge affirmed the allegations of violation, S&S, and unwarrantable failure, based upon the parties’ stipulations. Id. at 343-44. However, he rejected both parties’ interpretation of the statutory language. Id. at 345. The Judge found that the term “repeated failure” in section 110(b)(2) 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. at 345, quoting Conshor Mining, LLC, 33 FMSHRC 2917, 2928 (Nov. 2011) (ALJ) (emphasis added). The Judge concluded that in order to support a designation of flagrant, the Secretary must establish that: (1) the cited violation of section 75.400 could reasonably have been expected to cause death or serious bodily harm; and that (2) Wolf Run repeatedly failed to make reasonable efforts to eliminate the accumulated combustible material cited in Order No. 6605922. Id. at 345-46. Although the operator conceded the first element, the Judge found that the record could not presently answer whether Wolf Run repeatedly failed to eliminate the cited violation. Id. at 346. Accordingly, the Judge set the matter for hearing and directed the parties to provide evidence or stipulations regarding four of the civil penalty criteria (history of previous violations, size, effect of penalty for operator to continue in business, and good faith abatement). Id. at 346.

            By subsequent order dated March 6, 2012, the Judge certified his ruling for interlocutory review. The Commission granted interlocutory review and stated that the issue on review is “whether the judge correctly construed the ‘repeated failure’ language of section 110(b)(2) of the Mine Act.” Unpublished Order dated Mar. 27, 2012, at 2. The Commission suspended the hearing set by the Judge, received briefs from the parties, and heard oral argument.

II.

Disposition

            We begin our analysis with the language of section 110(b)(2) of the Mine Act, 30 U.S.C. § 820(b)(2) (emphasis added), which, as stated previously, 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 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.

            The first inquiry in statutory construction is “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). Deference to an agency’s interpretation of the statute may not be applied “to alter the clearly expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). In ascertaining the plain meaning of the statutory language and Congress’ intention regarding a specific question at issue, we employ the “traditional tools of statutory construction,” including an examination of the statute’s text, legislative history, and structure, as well as its purpose. Id.; Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Emp’t Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989); Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997).

            We conclude that the plain language of section 110(b)(2) does not support the Judge’s ruling that past violative conduct may not be considered in determining whether a cited condition represents a “repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard. . . .” 30 U.S.C. § 820(b)(2). Turning first to the statutory language itself, it is difficult to conceive how one determines whether certain conduct represents “repeated” behavior of any sort without considering whether there have been prior instances of similar behavior. One might reasonably argue about the number of prior violations that should be necessary, or how similar those prior violations should be before conduct is appropriately considered a “repeated failure” under 110(b)(2), but an interpretation that precludes consideration of any prior violations runs counter to the natural meaning of the language.

            Not only is the Judge’s conclusion contrary to the plain meaning of the term “repeated failure,” it runs counter to the rest of the Act’s graduated enforcement scheme. In determining whether a violation was caused by an “unwarrantable failure to comply” within the meaning of section 104(d) of the Act, the Secretary routinely considers an operator’s past violative conduct. The Commission has agreed that this is an appropriate factor to take into account when determining whether an operator should be subjected to the more stringent enforcement that can result from the unwarrantable failure designation. See, e.g., IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009). 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.

            Another factor that undermines the Judge’s and (Wolf Run’s) crabbed construction of section 110(b)(2) is that, in many situations, it would render the provision mere surplusage. Under their view, a flagrant designation based on “repeated failure” would be confined to those instances in which an operator repeatedly failed to eliminate the cited condition at issue. However, if this interpretation were adopted, section 110(b)(2) would be effectively indistinguishable from the failure to abate provisions of section 104(b) of the Mine Act. It would also be duplicative of (and under some circumstances, inconsistent with) section 110(b)(1), which sets forth the penalty to be assessed when an operator fails to correct a violation for which it has been cited. In that case, MSHA is permitted to assess a penalty of not more than $7,500 for each day the violation is not corrected, with no upper limit. It is difficult to believe that Congress, having apparently determined that additional enforcement tools were needed in the wake of the Sago disaster, provided a sanction that applied, for the most part, to a situation addressed by an existing provision.

            Furthermore, if, consistent with the Judge’s interpretation, the “repeated failure” language of section 110(b)(2) were confined to the “repeated failure to eliminate” the cited condition, this might result in the elimination of any meaningful distinction between a “reckless” and a “repeated” flagrant violation, as a repeated failure to make reasonable efforts to eliminate a single known and dangerous violation will often be considered reckless. We do not believe that Congress intended the repeated failure flagrant provisions in section 110(b)(2) to be mere surplusage. Cf. Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 826 (Apr. 1981).

            For these reasons, we conclude 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, and that the Judge’s contrary interpretation is erroneous. We do not resolve which prior violations are relevant to the assessment of a “repeated failure” violation at this interlocutory stage in these proceedings.

III.

Conclusion

            For the foregoing reasons, we conclude that the Judge erred in his interpretation of section 110(b)(2) and remand these proceedings to the Judge. On remand, the Judge shall set the matter for hearing and, consistent with this decision, determine whether the violation alleged in Order No. 6605922 was properly assessed as flagrant. The Judge shall require the parties to submit other pleadings and evidence as he deems appropriate.  

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge David F. Barbour

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004