Guest Blog: FMSHRC redefines “flagrant violation”

By Adele L. Abrams, Esq., CMSP

| Published on May 6, 2013

Adele Abrams, Esp., CMSP

Adele Abrams, Esp., CMSP

In a precedential decision, the Federal Mine Safety & Health Review Commission (FMSHRC) has reversed an Administrative Law Judge’s ruling and, in doing so, expands the scope of what can be deemed a “flagrant violation”–a category which now carries a maximum penalty of $242,000 per violation, versus a $70,000 maximum for normal violations.

The ruling comes in Secretary of Labor v. Wolf Run Mining Company (Commission, March 20, 2013), following a certification of interlocutory review by ALJ Barbour on the issue of his interpretation of the “repeated failure” language in Section 110(b)(2) of the Mine Act. This section was added in 2006, after Congress amended the Act in the wake of the Sago mine disaster.

The 2006 “MINER Act” also set a mandatory minimum penalty of $2,000 for Section 104(d)(1) violations and $4,000 for Section 104(d)(2) violations, and raised the maximum to $220,000 for flagrant citations/orders. The amount rose again to $242,000 on January 28, 2013, because the penalty was indexed for inflation.

The MINER Act directed the Secretary of Labor to promulgate rules to implement the “flagrant” provisions and MSHA did so in 2007, as part of a general overhaul of the civil penalty standards in 30 CFR Part 100. However, the provisions relating to “flagrant” violations simply reiterated the language of the MINER Act. Subsequently, MSHA issued a Procedure Instruction Letter (No. I06-III-04) which established agency procedures for evaluating flagrant violations.

With respect to the “repeated failure” category of flagrant actions (the language at issue in Wolf Run), MSHA set forth the following criteria:

  1. 1) Citation or order is evaluated as significant and substantial;

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

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

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

MSHA also equipped inspectors’ laptop computers with an application that notified them that certain violations would be reviewed for special assessment as flagrant violations, using the criteria list above. The Procedure Instruction Letter (PIL) did not go through rulemaking and is therefore not a binding rule.

In the case at issue, Wolf Run operates an underground coal mine that was the subject of a Section 104(d)(2) order alleging an S&S violation, classified as an unwarrantable failure. The inspector designated it as flagrant under the “repeated failure” provision of the Act, using the PIL criteria. This designation was based on having issued the mine two prior unwarrantable failure S&S violations under the same standard four months earlier. The proposed penalty for the new “flagrant” violation was $142,900.

In contesting the order and penalty, both parties filed motions for partial summary decision on the “flagrant” issue, and Judge Barbour then affirmed the order as S&S and an unwarrantable failure. However, he found that the term “repeated failure” referred 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.”

The ALJ concluded that the Secretary must establish that the cited violation must be reasonably expected to cause death or serious bodily harm, and that the operator repeatedly failed to make reasonable efforts to eliminate the cited hazard. Because the judge could not answer whether Wolf Run had repeatedly failed to eliminate the cited violation, based on the record in the motions, he set the matter for hearing. Before moving forward, he certified his ruling for FMSHRC review.

The Commission heard oral argument on the issue and received briefs from the parties. In analyzing the issue, the FMSHRC looked at the relevant language of the Mine Act–that the term “flagrant” … “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.”

Applying the statutory construction analysis in Chevron USA, it concluded that Congress had directly spoken to the issue of what constitutes a “repeated” flagrant violation, and that the plain language of the Act did not support the judge’s ruling.

The decision notes that “[o]ne 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 Section 110(b)(2), but an interpretation that precludes consideration of any prior violations was contrary to the natural meaning of the language.

It found that the ALJ’s position was also contrary to the graduated enforcement scheme under the Act, because even an unwarrantable failure violation anticipates that the Secretary will consider the operator’s past violative conduct. See IO Coal Co., 31 FMSHRC 1346 (FMSHRC 2009) (setting forth the criteria against which to benchmark an unwarrantable failure). It also found that the judge’s interpretation would make flagrant violations indistinguishable from “failure to abate” violations under Section 104(b) of the Act, which carry a maximum penalty of $7,500 per day with no upper limit.

So in light of this ruling, it will be much easier for MSHA to sustain “flagrant” classification of citations/orders that involve conditions or actions that were previously cited as unwarrantable failures, but there is no time limit given in the decision for when such prior violations would no longer be considered, nor is there guidance on whether “issued” Section 104(d) citations/orders will be a basis for new flagrant violations even if they are still under contest and have not been finally adjudicated against an operator.

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com for more information.

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