Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/548151
39 AGGREGATES MANAGER August 2015 curred and instances where an accident has not occurred. The ALJ compared the imminent danger provision in the Mine Act with the flagrant provision as an illustration to highlight his conclusion that Congress intended only the most serious violations — that can be reasonably expected to proximately (directly) cause death or serious bodily in- jury — to be designated as flagrant. The ALJ noted that the language contained in the definition of imminent danger in the Mine Act is almost identical. Although there are mate- rial differences between §107(a) imminent danger orders and flagrant violations, they both require the same degree of injury — one that can be reasonably expected to cause death or serious bodily injury. ALJ Feldman contrasted these almost identical definitions with that contained in § 104(d)(1) which clearly provides that, although the conditions created by a violation do not cause an imminent danger, they can still be designated as significant and substantial. In doing so, he noted that the Federal Mine Safety and Health Re- view Commission "has articulated the importance of distinguishing serious violations that pose an extremely high degree of danger, such as imminent danger conditions, from routine S&S violations that could contribute to an injury based upon future continued mining operations." After analyzing the alleged flagrant violation against Oak Grove in the context of whether the violation could have been reasonably expected to proximately (directly) cause death or serious bodily injury, ALJ Feldman concluded that the Secretary did not carry his burden of establishing that the alleged accumulations reasonably could have been expected to proxi- mately cause death or serious injury. The ALJ highlighted the fact that the Secretary could not establish that an actual ignition source was present at the time of the violation that would be reasonably expected to directly cause death or serious injury. The Secretary argued that there was a potential for ignition sources to arise over time in the course of normal mining operations. ALJ Feldman rejected this argument, noting that such an analy- sis goes beyond the scope of a flagrant analysis. Instead, the ALJ concluded that the proper analysis is "whether the facts surrounding a violation support a flagrant designation is de- termined by the facts as they existed at the time the citation was issued." (emphasis added). This decision is a positive development for mine operators and may help to prevent MSHA from designating ordinary S&S violations as flagrant violations in the future. Although the decision does not hold precedential weight, Commission case law concerning § 110(b)(2) flagrant violations and the Secretary's corresponding burden is sparse. Thus, until the Commission has the opportunity to issue a decision which addresses the significant issues surrounding flagrant viola- tions, operators will have to continue to look to decisions such as the June 1, 2015, decision from ALJ Feldman for guidance when defending against flagrant violations. AM ROCKLAW AT HOME ON ANY RANGE Wherever the job takes you, our variety of surface crawlers will fit right in. 800-732-6762 www.atlascopco.us