When MSHA announced its enforcement policy for how it would define “flagrant violation,” it seemed apparent that this would eventually be challenged in the courts. Several cases are now underway challenging that policy. Most recently, Judge Jerold Feldman of the Federal Mine Safety and Health Review Commission has concluded that MSHA’s policy interpreting what constitutes a “flagrant violation” is invalid.
In an order issued on November 11, 2011 in Secretary of Labor v. Conshor Mining, Judge Feldman rejected, on multiple grounds, MSHA’s interpretation of what constitutes a “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 grounds on which the judge relied are essentially: 1) lack of notice and comment rulemaking, 2) Commission precedent declining Chevron deference to specific tests for MSHA charges, 3) inapplicability of Chevron deference because the statutory language is unambiguous, and, “alternatively because Secretary’s interpretation is arbitrary and unreasonable.”
Judge Feldman rejected MSHA’s entire approach to implementing the statutory description of “flagrant violation.” MSHA’s policy would require that the violation be designated “significant and substantial” and “unwarrantable” and at least “permanently disabling” and that there be a history of at least “two prior ‘unwarrantable failure’ violations of the same safety or health standard…within the past 15 months.”
In particular, Judge Feldman took exception to MSHA’s use of history as a way of establishing that a company failed to correct a “known violation.” In other words, the judge disagreed that prior violations of the same “standard,” referred to by MSHA, equate to repeated failure to correct a known violation, as referred to in the law.
Judge Feldman’s analysis of MSHA’s characterization of “repeated failure” in connection with determining what is a “flagrant violation” complements an earlier analysis by Judge Alan Paez related to the meaning of “reckless failure,” which is another type of flagrant violation under MSHA’s policy. In Stillhouse Mining (Mar. 2011), presently pending discretionary review by the Commission, Judge Paez held that a “reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard” occurs when:
…in light of all the facts and circumstances surrounding the violation, the operator does not take the steps a reasonably prudent operator would have taken to eliminate the known violation of a mandatory health or safety standard and consciously or deliberately disregards an unjustifiable, reasonably likely risk of death or serious bodily injury.
Judge Feldman asserts that it is the Commission’s place to ascertain the proper test for what constitutes a “flagrant” violation, not MSHA’s to determine by policy. This is consistent with the Commission’s articulation of the test for a “significant and substantial” violation and for violations due to “unwarrantable failure.” Thus, Judge Feldman rejected the notion that the Commission should defer to the Secretary’s criteria for determining what constitutes a flagrant violation.
