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 resp