The judge disagreed. He viewed the congressional language as referring to a singular known violation rather than a series of recurring violations: current repeated conduct evidenced by failure to eliminate the hazard posed by the discrete violation rather than a past history of violations. One example of a true repeated flagrant violation the ALJ offered would be where conspicuous dangerous violative conditions exist that are either indifferently overlooked during a series of pre-shift and on-shift examinations, or are reported and ignored.

He said relying on the operator’s past history imposed an additional element that was not included in the statute. The statutory language was intended to deter flagrant violations (known violations that could proximately cause death) rather than to promote mine safety in general. He noted that, if Congress’ intent was to create a safer mining environment by deterring repeated unwarrantable failure violations, it would have amended section 110(a)(1) and raised the general statutory penalty ceiling of $70,000.

Moreover, if the intent was to create a “super 104(d) chain” by elevating penalties for repeated unwarrantable violations within a specific time frame, it would have amended section 104(d) of the Act instead.  He also found that a disproportionate reliance on a previous history of violations was inconsistent with precedential Commission tests for resolving such charges.

For unwarrantable failures, the FMSHRC looks at a variety of factors, including the extent of the violative condition, the length of time it has existed, whether the violation is obvious, whether the violation poses a high degree of danger, whether the operator was on notice that greater efforts were necessary for compliance, and the operator’s compliance efforts made prior to the issuance of the citation or order. Although repeated similar violations are relevant, because they impact the operator’s “notice” that greater efforts were necessary, they are not dispositive of unwarrantable findings. Therefore, such reliance for flagrant purposes was inconsistent with the Commission’s tests for both S&S and unwarrantable failure findings.

ALJ Feldman ordered the agency to provide written statements specifying whether, in light of his ruling, flagrant allegations remain, what specific facts evidence the requisite reckless conduct, and the basis for the allegations. Whether the Secretary of Labor will seek interlocutory review of this ruling from the full Commission remains to be seen. However, any operators who are currently facing flagrant penalties under the “repeated” criteria articulated by the agency in this case would be wise to offer the same arguments that were accepted in Conshor to void the assessment strategy.

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, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.