ALJ RULES MSHA’S “REPEATED” FLAGRANT CRITERIA INVALID

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 26
©2011 Jackson Kelly PLLC

 

         A Federal Mine Safety and Health Review Commission Administrative Law Judge (“ALJ”) recently found MSHA’s policy setting forth the criteria for determining “repeated” flagrant violations to be invalid, both because it constitutes a formal rule that was enacted without notice-and-comment rulemaking and because it is inconsistent with the language of the MINER Act. In an Order issued in Conshor Mining, LLC, Docket Nos. KENT 2008-562 and KENT 2008-782 (ALJ Feldman Nov. 28, 2011), Judge Jerold Feldman rejected MSHA’s reliance on its criteria for determining a “repeated” flagrant violation.  A flagrant violation is subject to a penalty of up to $220,000.

 

         MSHA’s authority to designate a violation as “flagrant” is included in the 2006 Mine Improvement and New Emergency Response Act (“MINER Act”), which amended the Federal Mine Safety and Health Act of 1977.  Following the enactment of the MINER Act, § 110(b)(2) of the Mine Act allows for increased maximum civil penalties for violations MSHA deems “flagrant” as follows: 

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.

30 U.S.C. § 820(b)(2).  The statutory provision, therefore, authorizes a flagrant designation to be based on either a “reckless failure” or a “repeated failure” to eliminate a known violation. 
    

          Following the enactment of the flagrant provision in 2006, MSHA issued two Procedure Instruction Letters (“PIL”) to set forth the criteria for determining both reckless failure and repeated failure flagrant violations.  Both PILs have expired, and MSHA reiterated the criteria in an April 19, 2011, news release. The validity of the criteria for a “reckless” flagrant was addressed in Stillhouse Mining, LLC, 33 FMSHRC 778 (ALJ Paez March 2011), which is currently pending on appeal before the Review Commission.

 

           Both the two PILs and the news release state the following criteria for finding a “repeated” flagrant:

• The citation or order is evaluated as significant and substantial (“S&S”).
• The injury or illness is evaluated as at least permanently disabling.
• The type of action is evaluated as an unwarrantable failure.
•  At least two prior “unwarrantable failure” violations of the same safety or health standard have been cited in the past 15 months.

          Conshor involves three § 104(d)(2) orders that allege violations of 30 C.F.R. § 75.220(a)(1), which requires compliance with a mine’s approved roof control plan.  MSHA designated each of the orders as a flagrant violation and assessed penalties of $94,400, $110,900 and $122,200.  The orders met the final prong of the “repeated” flagrant criteria because in the past 15 months the operator had paid penalties assessed for two § 104(d)(2) orders alleging violation of § 75.220(a)(1). 

 

           During a pre-hearing conference, the operator indicated that it disputed the validity of the criteria for determining a flagrant violation.  The ALJ then ordered the parties to submit briefs on the validity of those criteria.  Prior to the hearing, the ALJ held that MSHA’s criteria for determining a “repeated” flagrant are invalid and that the Secretary could not rely on those criteria in the litigation of this matter.

 

           Judge Feldman found the “repeated” flagrant criteria to be invalid for three reasons: (1) the criteria represent substantive rules that were not promulgated through notice-and-comment rulemaking and are therefore in violation of the Administrative Procedures Act, 5 U.S.C. § 553; (2) the Secretary’s position is not entitled to deference because specific criteria for establishing the validity of charges falls within the purview of the Commission, not MSHA; and (3) by incorporating past violations, the Secretary’s criteria are contrary to the plain meaning of the statutory language on flagrant violations.

 

           With respect to the first rationale, Judge Feldman noted that the MINER Act directed MSHA to promulgate final regulations through notice-and-comment rulemaking to implement the flagrant provisions. MSHA’s penalty regulations, however, do not contain the PIL criteria.  The PIL criteria were not codified in the final rule, yet MSHA continued to apply them.  In Conshor, the ALJ determined that the criteria required notice-and-comment rulemaking.  To that end, they constituted a substantive rule that imposed new liability, rather than an interpretive rule that merely explains an existing law or a statement of general policy that does not create a binding norm.  Because the criteria were not promulgated through notice-and-comment rulemaking, they are invalid.

 

            Second, the ALJ found that the Secretary is not entitled to deference with respect to the flagrant criteria because the Commission, and not the Secretary, has authority over the appropriate tests for evaluating specific charges.  The imposition of a penalty, particularly a specially assessed penalty for a flagrant violation, is such a charge.  The Secretary has the burden of proving such charges and, consequently, cannot define the requisite framework for doing so.  Therefore, the Secretary’s criteria for establishing a flagrant violation are not entitled to deference.

 

            Third, Judge Feldman rejected the Secretary’s criteria because they are contrary to the statutory provision on flagrant violations.  He observed that the statutory language focuses on an operator’s “reckless or repeated efforts to eliminate a known violation of a mandatory health or safety standard.”  In light of this language, the Secretary’s reliance on past violations for determining a “repeated” flagrant is inappropriate.  Specifically, the statutory language focuses on an operator’s response to a single known violation, rather than a series of recurring violations.  Therefore, reliance on previous violations to determine a flagrant is misplaced.

 

            This article was authored by Arthur Wolfson, Jackson Kelly PLLC.  For more information on the author, click here.

 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

 

Responsible Attorney
Karen L. Johnston
(303) 390-0003
kjohnston@jacksonkelly.com

 

For more information, contact:  

Laura E. Beverage (303) 390-0003	Karen L. Johnston (303) 390-0003
R. Henry Moore (412) 434-8801	Michael T. Cimino (304) 340-1000

 

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