Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/124173
Rock Review Commission issues a troubling decision on "repeated flagrant" violations. by Arthur Wolfson A FLAGRANT Foul T Arthur Wolfson is an associate in Jackson Kelly PLLC's Pittsburgh office, where he works with the firm's Occupational Safety and Health Practice Group. He can be reached at 412-434-8055 or via email at awolfson@ jacksonkelly.com. 34 he Federal Mine Safety Review Commission recently issued a decision addressing application of the "repeated flagrant" provision of the Mine Improvement and New Emergency Response Act of 2006 (the MINER Act). The Commission's decision [Wolf Run Mining Co., Docket No. WEVA 2008-1265 (March 20, 2013)] provides scant resolution as to the meaning of the term, but does open the door for the Mine Safety and Health Administration (MSHA) to allege a violation as a repeated flagrant based on a mine operator's history of violations. The flagrant provision of the Mine Act was added by Section 8(a) the MINER Act. It states as follows: Violations under this section that are deemed to be flagrant may be assessed a civil penalty of not more than $242,000. For purposes of the preceding sentence, the term "flagrant" with respect to a violation means a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. 30 U.S.C. § 820(b)(2). Thus, the provision allows for two varieties of flagrant violations: reckless flagrant and repeated flagrant. Wolf Run involves a Section 104(d)(2) order for violation of 30 C.F.R. § 75.400. It was designated as a "repeated flagrant" and assessed a penalty of $142,900. Section 75.400 prohibits the accumulation of combustible materials in an underground coal mine. Before the administrative law judge (ALJ), the parties stipulated that a violation occurred as alleged, but disagreed over the propriety of the flagrant designation. The order contested in Wolf Run was issued on Nov. 14, 2007. At the time, MSHA had in place a Procedure Instruction Letter (PIL), No. 108-111-02, which set forth non-binding criteria for evaluating a violation as a repeated flagrant. The PIL, which has since expired, set forth the following criteria for a violation to be a repeated flagrant: (1) The citation or order is evaluated S&S, (2) Injury or illness is evaluated as at least permanently disabling, (3) Type of action is evaluated as unwarrantable failure, (4) At least two prior "unwarrantable failure" violations of the same…safety standard have been cited within the past 15 months. In Wolf Run litigation, the issuing inspector testified that he recommended the violation be designated as a "repeated flagrant" because it met the criteria set forth in the PIL. During the course of the litigation, MSHA changed it theory, disclaimed that the PIL set forth the criteria for a repeated flagrant violation, and argued instead that any past violations of the same standard could support a repeated flagrant designation. AGGREGATES MANAGER May 2013 RockLaw_AGRM0513.indd 34 4/18/13 2:42 PM