Aggregates Manager

August 2014

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ROCKLAW AGGREGATES MANAGER August 2014 35 reasoned that the language present in § 110(b)(2) (e.g., 'proximate cause,' 'reasonably expected to cause,' and 'serious bodily injury') diff ers from the terms 'contributing cause,' 'reasonable likelihood,' and 'injury of a reasonably serious nature' contained in § 104(d)(1). First, ALJ Feldman compared the terms 'proximate cause' and 'contributing cause' and found them to be sig- nifi cantly diff erent. 'Proximate cause' directly produces an event and the result, and it is synonymous with terms such as 'direct cause' and 'primary cause.' On the other hand, a 'contributing cause' is merely a factor in producing a certain result and not necessarily a primary cause of that result. Second, the ALJ compared the terms 'reasonably expected' and 'reasonable likelihood,' noting an important diff erence between these two terms as well. While the term 'expected' is synonymous with words like 'certain,' 'impending,' or 'about to happen,' the term 'likelihood' is synonymous with 'chance,' 'possibility,' and 'prospect.' ird, the ALJ compared 'serious bodily injury' with 'injury of reasonably serious nature.' To begin, ALJ Feld- man reasoned that the language contained in §110(b)(2) showed Congress' intent that the injuries contemplated by §110(b)(2) be limited to grave injuries or the reasonable expectation of grave injuries. e ALJ also noted that, although there are material diff erences between §107(a) imminent danger orders and fl agrant violations, they both require the same degree of injury — one that can be reasonably expected to cause death or serious bodily injury. On the other hand, §104(d)(1) clearly provides that, although the conditions created by a violation do not cause an imminent danger, they can still be designated as signifi cant and substantial. For the ALJ, this distinction was another fact to highlight Congress' intent that a fl agrant violation must pose the same risk of death or serious bodily injury as a §107(a) imminent danger order, rather than an S&S violation under §104(d)(1). Ultimately, the ALJ concluded that Congress intended §110(b)(2) fl agrant violations to be reserved for the most blatant and egregious violations, and the gravity require- ment for such violations is greater than that required for S&S violations under §104(d)(1). Based upon this con- clusion, the ALJ ordered that the Secretary must demon- strate the following criteria to prove a repeated fl agrant violation: (1) A repeated fl agrant violation is a violation that is demonstrated by either (a) a repeated failure to eliminate the violation properly designated as fl agrant, or (b) a relevant history of violations that also meet the requirements for a fl agrant violation with respect to knowledge, causation and gravity, as enumerated below. (2) A fl agrant violation must be a known violation that is conspicuously dangerous, in that it cannot reasonably escape notice. (3) A fl agrant violation must be the substantial and proximate cause of death or serious bodily injury that has occurred or can reasonably be expected to occur. (a) A substantial and proximate cause is a dom- inant cause without which death or serious bodily injury would not occur. (b) A serious bodily injury is a grave injury that results in signifi cant debilitating and/or perma- nent impairment. (c) Such injury is reasonably expected to occur if there is a signifi cant probability of its occur- rence. e ALJ instructed the Secretary to show that the §104(d) order at issue and any predicate citations relied upon to establish a repeated fl agrant violation met these criteria. is is a positive development for the industry. Since the MINER Act was enacted in 2006, the Secretary has failed to establish clear criteria for fl agrant violations and has constantly changed litigation positions. e ALJ's order in Oak Grove may help clarify the criteria for fl agrant violations and requires the Secretary to take a stance on the issue. Because this is an interlocutory order, it will be diffi cult for the Secretary to appeal this decision before a hearing on the merits. AM

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