A Flagrant Foul


May 1, 2013

Review Commission issues a troubling decision on “repeated flagrant” violations.


By Arthur Wolfson


The Federal Mine Safety Review Commission recently issued a decision addressing application of the “repeated flagrant” provision of the Mine Improvement and New Emergency Response Act of 2006 (the MINER Act). The Commission’s decision [Wolf Run Mining Co., Docket No. WEVA 2008-1265 (March 20, 2013)] provides scant resolution as to the meaning of the term, but does open the door for the Mine Safety and Health Administration (MSHA) to allege a violation as a repeated flagrant based on a mine operator’s history of violations.

The flagrant provision of the Mine Act was added by Section 8(a) the MINER Act. It states as follows:

Violations under this section that are deemed to be flagrant may be assessed a civil penalty of not more than $242,000. 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.

30 U.S.C. § 820(b)(2).

Thus, the provision allows for two varieties of flagrant violations: reckless flagrant and repeated flagrant.

Wolf Run involves a Section 104(d)(2) order for violation of 30 C.F.R. § 75.400. It was designated as a “repeated flagrant” and assessed a penalty of $142,900. Section 75.400 prohibits the accumulation of combustible materials in an underground coal mine. Before the administrative law judge (ALJ), the parties stipulated that a violation occurred as alleged, but disagreed over the propriety of the flagrant designation.

The order contested in Wolf Run was issued on Nov. 14, 2007. At the time, MSHA had in place a Procedure Instruction Letter (PIL), No. 108-111-02, which set forth non-binding criteria for evaluating a violation as a repeated flagrant. The PIL, which has since expired, set forth the following criteria for a violation to be a repeated flagrant:

(1) The citation or order is evaluated S&S,

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

(3) Type of action is evaluated as unwarrantable failure,

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

In Wolf Run litigation, the issuing inspector testified that he recommended the violation be designated as a “repeated flagrant” because it met the criteria set forth in the PIL. During the course of the litigation, MSHA changed it theory, disclaimed that the PIL set forth the criteria for a repeated flagrant violation, and argued instead that any past violations of the same standard could support a repeated flagrant designation.

The parties submitted cross-motions for summary decision on the issue of the repeated flagrant designation. The ALJ denied both motions. In doing so, he rejected MSHA’s reliance on history of past violations of the same standard to support a repeated flagrant designation. The ALJ cited with approval, Conshor Mining LLC, 34 FMSHRC 333 (ALJ Feldman Jan. 2012), which held that “the phrase ‘repeated failure’ when read in context refers to current or 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.” Thus, the ALJ held that a repeated flagrant designation must be based on evidence that the operator repeatedly failed to eliminate the condition that was cited in the order at issue. The ALJ denied both motions for summary decision because the record was silent on this question. He then certified his ruling to the Review Commission for interlocutory review, to review his interpretation of “repeated flagrant.”

The Commission rejected the ALJ’s interpretation that a repeated flagrant designation must be based on the repeated failure to eliminate the cited condition, rather than on past violations. Instead, the Commission held that a repeated flagrant designation may be based on past violative conduct. Curiously, the Commission found the statutory language that a flagrant violation is “a reckless or repeated failure to make reasonable efforts to eliminate a known violation” to refer to past violations of the same standard, not necessarily the violation at issue. The Commission expressly declined to offer any guidance as to the necessary number of past violations, or similarity to the one at issue, to support the repeated flagrant designation. The Commission then remanded the case back to the ALJ for consideration consistent with its interpretation of the ‘repeated flagrant” provision.

The Commission’s decision is troubling for several reasons. First, it purports to be based on the plain meaning of the statutory language of the flagrant provision. However, that very language appears to clearly refer to an operator’s efforts to eliminate “a known violation,” i.e., a single particular violation, not an operator’s history of past violations. Second, the Commission’s interpretation authorizes the use of the flagrant provision as a consequence for repeated violations of the same standard. However, MSHA penalty regulations already do this by assigning additional penalty points for repeat violations. The Commission’s ruling, therefore, allows the flagrant provision to operate as a duplicative measure, and a potentially expensive one at that. Finally, by not indicating the number of past violations or necessary similarity to the one at issue to support a repeated flagrant designation, the Commission has failed to provide both the agency and regulated community with the necessary guidance to apply the “repeated flagrant” provision going forward.

Because Wolf Run is not a final decision, it cannot be appealed further at this point. Therefore, it is likely that MSHA will view this decision as a license to designate violations as repeated flagrants based solely on an operator’s history of violations of the same standard. However, because the Commission offered no further guidance, the propriety of such designations will be determined on a case-by-case basis, based on the number of past violations, similarity of those violations to the one at issue, and the inclination of the particular ALJ.

Arthur Wolfson is an associate in Jackson Kelly PLLC’s Pittsburgh office, where he works with the firm’s Occupational Safety and Health Practice Group. He can be reached at 412-434-8055 or via email at awolfson@jacksonkelly.com.

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