Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/853705
28 AGGREGATES MANAGER / August 2017 ALJ upholds flagrant designation under 'narrow interpretation.' Patrick W. Dennison is an attorney in Jackson Kelly PLLC's Pittsburgh office, where he practices in the Occupational Safety and Health and Coal and Oil and Gas Industry Practice Groups. He can be reached at 412- 434-8815 or pwdennison@ jacksonkelly.com. Adam J. Schwendeman is an associate in Jackson Kelly PLLC's Charleston office, where he practices in the Occupational Safety and Health and Litigation Practice Groups. He can be reached at 304- 340-1077 or aschwendeman@ jacksonkelly.com. 'Flagrant' Case Law Developing T en months ago, the Federal Mine Safety and Health Review Commis- sion (Commission) issued its decision in The American Coal Co., et al., 38 FMSHRC 2062 (Review Commission August 2016), in which it reviewed Administrative Law Judge (ALJ) Thomas P. McCarthy's decision regar- ding flagrant designations for two orders alleging violations of 30 C.F.R. § 75.400. The Commission upheld the ALJ's decision with respect to one of the orders and remanded the case to the ALJ to determine whether the other order was flagrant under the "narrow approach" in light of certain findings made by the Commission and, if not, whether it was flagrant under the "broad approach," which considers the operator's history of past violations. On June 15, 2017, ALJ McCarthy issued his decision on remand and ultimately sus- tained the Secretary's original high negli- gence and flagrant designations, assessing a civil penalty of $112,380 for the viola- tion. The cited standard, § 75.400, governs accumulations of combustible material in underground coal mines. With its decision, the Commission further elaborated on the basis for a flagrant de- signation. The Commission identified five elements that the Secretary must establish to support a flagrant designation: (1) there was a condition that constituted a violation of a mandatory health or safety standard; (2) the violation was "known" by the operator; (3) the violation either (a) substantially caused death or serious bodily injury, or (b) reas- onably could have been expected to cause death or serious bodily injury; (4) there was a failure on the part of the operator to make reasonable efforts to eliminate the violation; and (5) that failure was either "reckless" or "repeated." ALJ McCarthy noted that the Commis- sion majority did not address in its decision the approach to the "broad" interpretation of repeat flagrant designations that he had detailed in his initial decision and order. Rather, the Commission majority directed the ALJ to fashion his "own broad interpretation 'which permits the Secretary to establish a violation as flagrant by taking the operator's history of previous accumulations violations into account.'" The ALJ found Commissioner Althen's reasoning in his concurring and dissenting opinion to be "clear, sensible, and highly persuasive." The ALJ noted that Commissioner Althen made essentially two arguments: (1) the plain language of § 110(b)(2) refers to a single, specific violation, and (2) the practical app- lication of the Commission's interpretation of § 110(b)(2), as presented in its Wolf Run decision, raises "insurmountable procedu- ral concerns relating to fair notice and due process." The ALJ found that Commissioner Althen recognized that using an operator's history of violations for this purpose presents concerns. Nonetheless, and after detailing the Commission's arguments and "separate comments" concerning the broad interpre- tation, the ALJ "decline[d] to address the broad interpretation." Instead, he relied upon "the narrow interpretation" involving only "a by Patrick W. Dennison and Adam J. Schwendeman ROCKLAW