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.