Crucial Clarification of “Repeated Flagrant” Provision


August 1, 2014

Recent orders by ALJ explain criteria for flagrant violations.

schwendmenUntitled-1by Adam J. Schwendeman

In March 2013, the Federal Mine Safety and Health Review Commission (Commission) issued its decision in Wolf Run Mining Co., 35 FMSHRC 536. At issue was the application of the “repeated flagrant” provision of the Mine Improvement and New Emergency Response Act of 2006 (the MINER Act).

In Wolf Run, the Commission analyzed the type of violations needed to constitute a repeated violation for the purposes of determining a flagrant violation under §110(b)(2) of the MINER Act. It held that “repeated” refers to past violations of the same standard, not necessarily the violation at issue. In its decision, the Commission declined to offer guidance on several issues concerning what MSHA must prove to support its repeated flagrant designation, including whether such prior violations must be unwarrantable, how many past violations must exist, and whether the prior violations must involve the same standard.

The Secretary of Labor (Secretary) has repeatedly changed his position on the criteria necessary to establish a repeated flagrant violation. As a result, confusion and uncertainty have prevailed in this area for some time. However, recent orders by an ALJ in a repeated flagrant case may provide some guidance and optimism for operators defending these alleged flagrant violations because the ALJ has clarified some of the criteria and has required the Secretary to finally take a position.

In Oak Grove Resources, LLC, Docket No. SE 2013-301, et al., the Mine Safety and Health Administration (MSHA) alleged a repeat flagrant violation of 30 C.F.R. §75.400. ALJ Jerold Feldman sought to clarify certain criteria that the Secretary must prove to assess a higher civil penalty for a flagrant violation. In March, ALJ Feldman issued an order requiring the Secretary to file a brief addressing, in detail, several questions. One of the questions the ALJ presented to the Secretary was whether the degree of gravity required to support a flagrant designation is greater than the degree of gravity required for an S&S designation under §104(d)(1). In response to the ALJ’s inquiry, the Secretary posited that there is no distinction between the two other than the burden of proof. The Secretary argued that the only difference is that the gravity determination for a flagrant violation involves the violation itself, whereas a normal S&S violation involves the likelihood of the hazard that is created by the violation. The Secretary also asserted that the expected injury need not be permanently disabling, changing his previous position on the issue. In sum, the Secretary argued that a flagrant violation does not require a greater gravity than an S&S violation under §104(d).

In a June 12 order, ALJ Feldman rejected this interpretation, concluding that it is unreasonable and, therefore, the Secretary is not entitled to deference. In reaching this conclusion, the ALJ reasoned that the language present in § 110(b)(2) (e.g., ‘proximate cause,’ ‘reasonably expected to cause,’ and ‘serious bodily injury’) differs from the terms ‘contributing cause,’ ‘reasonable likelihood,’ and ‘injury of a reasonably serious nature’ contained in § 104(d)(1).

First, ALJ Feldman compared the terms ‘proximate cause’ and ‘contributing cause’ and found them to be significantly different. ‘Proximate cause’ directly produces an event and the result, and it is synonymous with terms such as ‘direct cause’ and ‘primary cause.’ On the other hand, a ‘contributing cause’ is merely a factor in producing a certain result and not necessarily a primary cause of that result.

Second, the ALJ compared the terms ‘reasonably expected’ and ‘reasonable likelihood,’ noting an important difference between these two terms as well. While the term ‘expected’ is synonymous with words like ‘certain,’ ‘impending,’ or ‘about to happen,’ the term ‘likelihood’ is synonymous with ‘chance,’ ‘possibility,’ and ‘prospect.’

Third, the ALJ compared ‘serious bodily injury’ with ‘injury of reasonably serious nature.’ To begin, ALJ Feldman reasoned that the language contained in §110(b)(2) showed Congress’ intent that the injuries contemplated by §110(b)(2) be limited to grave injuries or the reasonable expectation of grave injuries. The ALJ also noted that, although there are material differences between §107(a) imminent danger orders and flagrant violations, they both require the same degree of injury — one that can be reasonably expected to cause death or serious bodily injury. On the other hand, §104(d)(1) clearly provides that, although the conditions created by a violation do not cause an imminent danger, they can still be designated as significant and substantial. For the ALJ, this distinction was another fact to highlight Congress’ intent that a flagrant violation must pose the same risk of death or serious bodily injury as a §107(a) imminent danger order, rather than an S&S violation under §104(d)(1).

Ultimately, the ALJ concluded that Congress intended §110(b)(2) flagrant violations to be reserved for the most blatant and egregious violations, and the gravity requirement for such violations is greater than that required for S&S violations under §104(d)(1). Based upon this conclusion, the ALJ ordered that the Secretary must demonstrate the following criteria to prove a repeated flagrant violation:

(1) A repeated flagrant violation is a violation that is demonstrated by either

(a) a repeated failure to eliminate the violation properly designated as flagrant, or

(b) a relevant history of violations that also meet the requirements for a flagrant violation with respect to knowledge, causation and gravity, as enumerated below.

(2) A flagrant violation must be a known violation that is conspicuously dangerous, in that it cannot reasonably escape notice.

(3) A flagrant violation must be the substantial and proximate cause of death or serious bodily injury that has occurred or can reasonably be expected to occur.

(a) A substantial and proximate cause is a dominant cause without which death or serious bodily injury would not occur.

(b) A serious bodily injury is a grave injury that results in significant debilitating and/or permanent impairment.

(c) Such injury is reasonably expected to occur if there is a significant probability of its occurrence.

The ALJ instructed the Secretary to show that the §104(d) order at issue and any predicate citations relied upon to establish a repeated flagrant violation met these criteria. This is a positive development for the industry. Since the MINER Act was enacted in 2006, the Secretary has failed to establish clear criteria for flagrant violations and has constantly changed litigation positions. The ALJ’s order in Oak Grove may help clarify the criteria for flagrant violations and requires the Secretary to take a stance on the issue. Because this is an interlocutory order, it will be difficult for the Secretary to appeal this decision before a hearing on the merits.

Adam J. Schwendeman practices in the Occupational Safety and Health Practice of Jackson Kelly PLLC’s Charleston, W.Va., office. He can be reached at 304-340-1077 or via email at


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