Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/853705
AGGREGATES MANAGER / August 2017 29 single, ongoing violation" to uphold the flagrant and high negligence designations and the penalty. In his analysis, the ALJ addressed whether the respon- dent knew or should have known that the violation existed for at least two shifts, given that the inspector issued no inadequate examination violation and the cited condition was not detailed in the examination books. The ALJ re- viewed the handwritten and printed production and delay reports and found that "mine management was well-aware" that the belt at issue was having "significant electrical and operational issues" during five shifts preceding issuance of the order and that such issues led to multiple instances of recurrent stopping and starting that could cause spillage and float coal dust accumulations around the belt." The ALJ concluded that the operator had multiple opportunities to discover, document, and correct the violative conditions, but nonetheless failed to take action. He found that the accumulations existed for more than two shifts and multi- ple belt examinations were conducted during those shifts. In addition, mine foremen traveled past the accumulations with their section crews as they traveled to and from the working face. Having found in the initial decision that the operator had constructive knowledge of the cited conditions, on remand the ALJ also found that the operator had "actual implied knowledge" of the cited conditions because: [t]he mine foremen knew that the pony belt delay could cause accu- mulations, and therefore had a duty to inspect and determine whether accumulations had occurred; or, al- ternatively, the mine foremen knew that the pony belt was experiencing delays, knew that such delays might cause accumulations (former facts), and therefore a reasonable foreman would have learned of the accu- mulations (latter facts). Using the same analysis concer- ning the mine foreman's actual implied knowledge cited conditions, the ALJ increased the negligence back to "high" after initially reducing it to "moderate." In his prior findings, the ALJ found the fact that the cited conditions were not reported to mine management by examiners was a mitigating factor and suppor- ted reducing the negligence to moderate. Further, he found that the operator was also on notice that greater efforts were necessary in order to comply with the cited standard, given an extensive history of meetings, training sessions, prior citations and orders for similar violations, safety talks and manager meetings, and changes in work force alloca- tion to increase belt examinations. Finally, the ALJ, in assessing a penalty of $112,380, relied on the operator's "repeated and extensive violation history under section 75.400," finding that it "cannot be gainsaid that non-flagrant civil penalty assessments under the progressive enforcement scheme of the Mine Act, inclu- ding 77 penalties for S&S violations and 11 penalties for unwarrantable failures, have not deterred respondent from continuing to violate the cited standard." The case law on "flagrant" designations continues to develop. With each decision from the Commission and its ALJs, the industry learns what factors may be relied upon by the Secretary to issue and sustain flagrant designations. As we see further challenges to this type of designation, we hope that the legal reasoning will evolve and eventual- ly provide the industry with a more precise definition of what constitutes "flagrant" under the Mine Act. AM Be a cool operator Be a cool operator 1-800-267-2665 • sales@hammondac.com • www.hammondac.com When you work hard in small spaces, you need AC big time! With over 1200 different kits engineered and developed, count on Arctic Wolf™ for factory-style integrated air conditioning systems in ready-to-fit kits. Loaders. Dozers. Excavators. Graders. Tractors. If your equipment has an engine and a cab on it, we can put cool air into it. Call today. 1-800-2 MR COOL or go online at www.hammondac.com and order your system and parts today. 081-178 Equip World 4.5x4.5.indd 1 2016-06-01 2:18 PM Hammond_AGRM0817_PG.indd 1 7/11/17 4:22 PM