Federal Mine Safety and Health Review Commission  Administrative Law Judge Alan Paez has rejected MSHA’s  attempt to use prior citations and orders alleging  “significant and substantial” violations (S&S) and  unwarrantable failures to support a flagrant violation  against Kentucky mine operator, Blue Diamond Coal Co. Judge Paez also rejected three other flagrant violations  against Blue Diamond in a long-delayed proceeding that  featured one of the largest civil penalties, $723,500, MSHA  has ever imposed in a non-injury case.

Responding to a hazard complaint, MSHA charged Blue  Diamond with violations relating to its roof and ventilation  control plans over a seven-month period in 2007.   Inspectors wrote two unwarrantable failure orders during  the first inspection in April.  Another unwarrantable failure  order followed in May for an alleged roof control violation  and a citation for the same alleged infraction was issued  in November.   

MSHA defines a flagrant violation as a reckless or repeated  failure to make reasonable efforts to prevent a known  violation of a mandatory standard that substantially or  proximately caused, or reasonably could be expected to  cause, death or serious bodily injury. One of the toughest  tools in MSHA’s enforcement arsenal, each flagrant  violation could be assessed a maximum civil penalty of  $220,000.  (At $242,000, the maximum fine would be even  higher now.)

According to the agency, a “repeated” failure occurs when  the operator fails more than once to make reasonable  efforts to eliminate the violation alleged to be flagrant, or  fails to make reasonable efforts to eliminate at least one  previous violation before failing to make reasonable efforts  to eliminate the alleged flagrant violation.

MSHA argued the “repeated” criteria were satisfied for one  of the alleged roof control violations because Blue  Diamond’s prior S&S and unwarrantable failure violations  were sufficient evidence of its failure to attempt to take  reasonable steps a prudent operator would take to  eliminate them.  While Paez accepted the agency’s  “repeated” formulation, he could see no justification for  MSHA’s rationale because statutory language applicable to  S&S and unwarrantable failures differed from that for  flagrant violations.

“Thus, the Secretary’s attempt to use prior S&S and  unwarrantable orders as a stand-alone proxy for a failure  to make reasonable efforts is inapposite,” Paez wrote in a  51-page decision.

He also dismissed the flagrant determination of the  ventilation infraction after finding the violation was neither  S&S nor unwarrantable failure. “Indeed, it is difficult to  envision sustaining a reckless or repeated flagrant  allegation when the underlying violation is neither S&S nor  unwarrantable,” he said.

He vacated the flagrant designations in the remaining two  violations after finding MSHA could not support them.   However, he sustained all four violations and their S&S  designations while reducing the operator’s total liability  nearly tenfold, to $85,940.  A proposed fine of $3,000  against a foreman was dismissed.