Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/548151
AGGREGATES MANAGER August 2015 38 AGGREGATES MANAGER August 2015 38 Rock Rejection highlights the difference between S&S and flagrant violations. ALJ DISMISSES by Adam J. Schwendeman Adam J. Schwendeman is an associate in Jackson Kelly PLLC's Charleston office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 304-340-1077 or aschwendeman@ jacksonkelly.com. Flagrant Designation A n Administrative Law Judge (ALJ) recently deleted a flagrant desig- nation brought by the Mine Safety and Health Administration (MSHA) against Oak Grove Resources, LLC. MSHA is- sued the violation for an alleged § 75.400 violation for impermissible coal accumulations along a 2,100-foot expanse of conveyor belt at the underground Oak Grove Mine in Jefferson County, Ala., in 2012. Oak Grove was assessed a penalty of $146,400. Since its creation in the 2006 MINER Act, the flagrant provision has been a tool MSHA has increasingly used against mine operators. Congress defined a flagrant violation as "a reckless or repeated failure to make reason- able efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or rea- sonably could have been expected to cause, death or serious bodily injury." This created two possible theories MSHA can pursue: reck- less or repeated flagrant violations. Congress gave MSHA the authority to assess a maximum penalty of $220,000 for such violations. After adjustment for inflation, the maximum penalty is now $242,000. MSHA designated the alleged violation as a repeated flagrant because of the 91 imper- missible accumulation violations issued to the operator in the prior two years. MSHA also claimed that the alleged violation was flagrant because the alleged accumulations reasonably could have been expected to cause death or serious bodily injury. In his June 1, 2015, decision, ALJ Jerold Feldman rejected MSHA's contention that the alleged violation was a flagrant violation. In presenting his case, the Secretary argued that a violation is flagrant if: (1) it was the proxi- mate (direct) cause of a death or serious bodily injury that has already occurred; or (2) it can be reasonably expected to be the contribut- ing cause of death or serious bodily injury in instances where accidents have not occurred. Thus, the Secretary essentially argued that the proximate cause requirement only applies to accidents that have already occurred and, in instances where no accident has occurred, the standard is equivalent with the proof neces- sary for an S&S violation. ALJ Feldman rejected the Secretary's inter- pretation as unreasonable. The ALJ highlighted the fact that the Secretary was conflating the requirements for an ordinary S&S designation with the requirements necessary to pursue a flagrant violation. Specifically, the ALJ noted that language present in the flagrant provision ("proximate cause," "reasonably expected to cause," and "serious bodily injury") differs from the terms "contributing cause," "reasonable likelihood," and "injury of a reasonably serious nature" contained in § 104(d)(1). Disagreeing with the Secretary, the ALJ concluded that the Secretary must prove proximate or direct cause in both instances where an accident has oc-