Aggregates Manager

August 2014

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34 AGGREGATES MANAGER August 2014 Recent orders by ALJ explain criteria for flagrant violations. by Adam J. Schwendeman Adam J. Schwendeman practices in the Occupational Safety and Health Practice of Jackson Kelly PLLC's Charleston, W.Va., office. He can be reached at 304-340-1077 or via email at aschwendeman@ CLARIFICATION Crucial I n March 2013, the Federal Mine Safety and Health Review Commission (Commission) issued its decision in Wolf Run Mining Co., 35 FMSHRC 536. At issue was the application of the "repeated fl agrant" provision of the Mine Improvement and New Emergency Response Act of 2006 (the MINER Act). In Wolf Run, the Commission analyzed the type of violations needed to constitute a repeated vio- lation for the purposes of determining a fl agrant violation under §110(b)(2) of the MINER Act. It held that "repeated" refers to past violations of the same standard, not necessarily the violation at issue. In its decision, the Commission declined to off er guidance on several issues concerning what MSHA must prove to support its repeated fl agrant designation, including whether such prior violations must be unwarrantable, how many past violations must exist, and whether the prior viola- tions must involve the same standard. e Secretary of Labor (Secretary) has repeat- edly changed his position on the criteria necessary to establish a repeated fl agrant violation. As a result, confusion and uncertainty have prevailed in this area for some time. However, recent orders by an ALJ in a repeated fl agrant case may pro- vide some guidance and optimism for operators defending these alleged fl agrant violations because the ALJ has clarifi ed some of the criteria and has required the Secretary to fi nally take a position. In Oak Grove Resources, LLC, Docket No. SE 2013-301, et al., the Mine Safety and Health Ad- ministration (MSHA) alleged a repeat fl agrant vi- olation of 30 C.F.R . §75.400. ALJ Jerold Feldman sought to clarify certain criteria that the Secretary must prove to assess a higher civil penalty for a fl agrant violation. In March, ALJ Feldman issued an order requiring the Secretary to fi le a brief addressing, in detail, several questions. One of the questions the ALJ presented to the Secretary was whether the degree of gravity required to support a fl agrant designation is greater than the degree of gravity required for an S&S designation under §104(d)(1). In response to the ALJ's inquiry, the Secretary posited that there is no distinction be- tween the two other than the burden of proof. e Secretary argued that the only diff erence is that the gravity determination for a fl agrant violation involves the violation itself, whereas a normal S&S violation involves the likelihood of the hazard that is created by the violation. e Secretary also asserted that the expected injury need not be permanently disabling, changing his previous position on the issue. In sum, the Secretary argued that a fl agrant violation does not require a greater gravity than an S&S violation under §104(d). In a June 12 order, ALJ Feldman rejected this interpretation, concluding that it is unreasonable and, therefore, the Secretary is not entitled to deference. In reaching this conclusion, the ALJ

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