August 21, 2017
Ten months ago, the Federal Mine Safety and Health Review Commission (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 regarding 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 sustained the Secretary’s original high negligence and flagrant designations, assessing a civil penalty of $112,380 for the violation. 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 designation. 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) reasonably 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 Commission 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 application of the Commission’s interpretation of § 110(b)(2), as presented in its Wolf Run decision, raises “insurmountable procedural 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 interpretation, the ALJ “decline[d] to address the broad interpretation.” Instead, he relied upon “the narrow interpretation” involving only “a single, ongoing violation” to uphold the flagrant and high negligence designations and the penalty.
In his analysis, the ALJ addressed whether the respondent 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 reviewed 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 multiple 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 accumulations, and therefore had a duty to inspect and determine whether accumulations had occurred; or, alternatively, 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 accumulations (latter facts).
Using the same analysis concerning 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 supported 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 allocation 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, including 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 eventually provide the industry with a more precise definition of what constitutes “flagrant” under the Mine Act.
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 email@example.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 firstname.lastname@example.org.