An alleged violation by an Alabama coal producer was not flagrant because the Mine Safety and Health Administration could not demonstrate the hazard posed could have led directly to death or serious bodily injury, a judge has ruled.

MSHA charged Oak Grove Resources, LLC, with a flagrant violation of the standard on accumulation of combustible material (30 CFR § 75.400) after finding accumulations of combustible coal materials along a 2,100-foot stretch of conveyor belt at the operator’s Oak Grove underground mine in Jefferson County in October 2012. The agency levied a $146,400 fine.

A flagrant violation is defined as a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximally caused, or reasonably could have been expected to cause, death or serious bodily injury. The flagrant provision was added to the Mine Act  by Congress following a series of coal mine tragedies in 2006 to give MSHA a tough, new enforcement tool against the most notorious operators. Lawmakers gave MSHA authority to assess a maximum penalty of $220,000, now swelled to $242,000, adjusted for inflation.

The alleged infraction at the mine qualified as a repeated failure because Oak Grove had been cited 91 times under the standard over the past two years. However, the agency also contended the violation met the flagrant definition because the associated hazard could reasonably have  been expected to cause death or serious injury. In other words, according to MSHA, the hazard could have been a contributing cause of death or serious injury.

In a decision released June 1, Administrative Law Judge Jerold Feldman said MSHA’s interpretation that violations producing hazards that might contribute to a seriously harmful outcome was “unreasonable” in this case. He cited the legal definition of “proximate cause” as that which directly produces an event and without which the event would not have occurred. Then, noting that Congress intended the statute to apply only to the most egregious violations, he stated that to be classified as flagrant, all such violations must reflect hazards that could directly  lead to death or serious harm.

“In short, to properly designate a violation as flagrant, the Secretary must always demonstrate that the cited condition could proximally cause death or serious bodily injury,” Feldman said (emphasis in original). His decision can be found at: http://www.fmshrc.gov/decisions/alj/ALJo_6012015- SE%202013-301352368399.orderdeletingflagrant.pdf.

Feldman added that he found it “significant” that Congress used identical language when defining an imminent danger (i.e., a condition that “could reasonably be expected to cause death or serious [injury]”) to distinguish extremely dangerous conditions from all others. Feldman also stated that flagrant violations are not intended to be considered in the context of continued mining operations, as MSHA had contended.

Applying these interpretations, Feldman threw out the flagrant designation because, by the agency’s own admission, the accumulations were not near an ignition source, such as a misaligned belt or defective roller. He gave MSHA 45 days to file an amended petition for a monetary assessment based on the agency’s order.