Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/124173
The parties submitted cross-motions for summary decision on the issue of the repeated flagrant designation. The ALJ denied both motions. In doing so, he rejected MSHA's reliance on history of past violations of the same standard to support a repeated flagrant designation. The ALJ cited with approval, Conshor Mining LLC, 34 FMSHRC 333 (ALJ Feldman Jan. 2012), which held that "the phrase 'repeated failure' when read in context refers to current or repeated conduct evidenced by a failure to eliminate the hazard posed by the discrete violation alleged to be flagrant, rather than [by] a past history of violations." Thus, the ALJ held that a repeated flagrant designation must be based on evidence that the operator repeatedly failed to eliminate the condition that was cited in the order at issue. The ALJ denied both motions for summary decision because the record was silent on this question. He then certified his ruling to the Review Commission for interlocutory review, to review his interpretation of "repeated flagrant." The Commission rejected the ALJ's interpretation that a repeated flagrant designation must be based on the repeated failure to eliminate the cited condition, rather than on past violations. Instead, the Commission held that a repeated flagrant designation may be based on past violative conduct. Curiously, the Commission found the statutory language that a flagrant violation is "a reckless or repeated failure to make reasonable efforts to eliminate a known violation" to refer to past violations of the same standard, not necessarily the violation at issue. The Commission expressly declined to offer any guidance as to the necessary number of past violations, or similarity to the one at issue, to support the repeated flagrant designation. The Commission then remanded the case back to the ALJ for consideration consistent with its interpretation of the 'repeated flagrant" provision. The Commission's decision is troubling for several reasons. First, it purports to be based on the plain meaning of the statutory language of the flagrant provision. However, that very language appears to clearly refer to an operator's efforts to eliminate "a known violation," i.e., a single particular violation, not an operator's history of past violations. Second, the Commission's interpretation authorizes the use of the flagrant provision as a consequence for repeated violations of the same standard. However, MSHA penalty regulations already do this by assigning additional penalty points for repeat violations. The Commission's ruling, therefore, allows the flagrant provision to operate as a duplicative measure, and a potentially expensive one at that. Finally, by not indicating the number of past violations or necessary similarity to the one at issue to support a repeated flagrant designation, the Commission has failed to provide both the agency and regulated community with the necessary guidance to apply the "repeated flagrant" provision going forward. Because Wolf Run is not a final decision, it cannot be appealed further at this point. Therefore, it is likely that MSHA will view this decision as a license to designate violations as repeated flagrants based solely on an operator's history of violations of the same standard. However, because the Commission offered no further guidance, the propriety of such designations will be determined on a case-by-case basis, based on the number of past violations, similarity of those violations to the one at issue, and the inclination of the particular ALJ. AM C M Y CM MY CY CMY K Untitled-22 1 RockLaw_AGRM0513.indd 35 Text INFO to 205-289-3782 or visit www.aggman.com/info AGGREGATES MANAGER May 2013 35 4/12/13 8:46 AM 4/18/13 2:41 PM