Frustrated by “vague and inconsistent criteria” MSHA has  offered to support a repeated flagrant violation, a Federal  Mine Safety and Health Review Commission administrative  law judge has taken upon himself to fill the “void” so he  can adjudicate an order the agency issued against an  Alabama coal operator.

MSHA was handed a flagrant violation enforcement  weapon for the first time when Congress passed the  MINER Act in 2006.   Lawmakers defined “flagrant” in the  statute 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  proximately caused, or reasonably could have been  expected to cause, death or serious bodily injury.  The  maximum fine was set at $220,000 per violation, since  increased to $242,000 to account for inflation.

MSHA’s job is to take such language and turn it into  objective criteria for enforcement and legal purposes.   However, the agency’s effort to do so remains a work in  progress.  For instance, MSHA now holds that a violation  may be flagrant if it leads to a lost-time injury, whereas  previously the injury had to be at least permanently  disabling, according to Administrative Law Judge Jerold  Feldman.  The agency also has departed from its initial  guidelines requiring at least two prior violations of the  same mandatory standard cited as aggravated conduct  within the previous 15 months, the judge noted.

Feldman has taken the lead because in a case before him  MSHA charged Oak Grove Resources, LLC with a flagrant  violation for excessive coal dust accumulations at its Oak  Grove Mine in 2012.  The agency proposed a $146,400  fine.  The enforcement action was written as flagrant, in  part because MSHA said the operator had been cited 91  times during the previous two years under MSHA’s  accumulations standard. 

Feldman issued an order in March directing MSHA to  respond to questions on substantive issues he believed  MSHA needed to explain to support a repeated, flagrant  violation.  He followed up the March order with another on  June 11 after MSHA’s submitted its responses in April. In his latest order, Feldman held that Congress had made  clear the flagrant violation provision could be reserved  only for the most blatant and egregious violations.  In  addition, he concluded that MSHA’s characterization of  gravity as the agency applied it to flagrant violations was  neither reasonable nor persuasive and thus was not  entitled to deference.

Since the agency had failed to provide what Feldman  called “evidentiary criteria” to enable him to adjudicate the  Oak Grove case, he spelled out the criteria himself and  ordered the agency to respond to it with supporting  evidence within 21 days.