For clients and friends of Jackson Kelly PLLC
Volume 12, Number 18
©2016 Jackson Kelly PLLC
Newtown Energy, Inc., __ FMSHRC ___ (Rev. Comm. Aug. 2016) (Docket No. WEVA 2011-283).
On August 29, 2016, the Federal Mine Safety and Health Review Commission (“Commission”) reversed an Administration Law Judge’s (“ALJ’s”) finding of Non-Significant and Substantial (“Non-S&S”); vacated and remanded the unwarrantable failure determination; vacated and remanded the civil penalty consistent with negligence and gravity findings made by the Commission. Newtown Energy, Inc., __ FMSHRC ___ (Rev. Comm. Aug. 2016) (Docket No. WEVA 2011-283). The importance of the Commission’s decision in Newtown pertains to an interpretation of prong two of the Commission’s test for analyzing whether an alleged violation is properly designated as significant and substantial.
Since Mathies Coal Co., 6 FMSHRC 1, 3-4 (Rev. Comm. Jan. 1984), the Commission has used a four-part testing for analyzing the propriety of an S&S designation, which provides that the Secretary must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
In Newtown, Commissioners Young, Althen, and Nakamura joined together in finding that prong two should focus on “whether the hazard was reasonable likely to occur given the particular facts surrounding this violation” (emphasis added). Newtown at *9. According to the majority, when analyzing prong two, the ALJ is to first determine/define the specific hazard the standard is aimed to prevent and then determine whether based upon particular facts surrounding this violation, there exists a reasonable likelihood of the occurrence of the hazard against which the mandatory standard is directed. Newtown at *9.
The majority’s opinion was a response to the Knox Creek Coal Co., 36 FMSHRC 1128 (Rev. Comm. May 2014), aff’d, 811 F.3d 148, 163 (4th Cir. 2016), decision where the United States Court of Appeals for the Fourth Circuit stated, in dicta, that prong two of the Mathies test was satisfied where the Secretary established that the violation is “at least somewhat likely to result in harm.” The majority in Newtown rejected any notion that the Fourth Circuit promulgated a new test for prong two given that prong two was at issue in Knox Creek. Newtown at *7. The majority found that the Fourth Circuit’s use of the phrase “at least somewhat likely” was not intended to change the Commission’s “long-existing reasonable likelihood standard where the issue was not before it.” Newtown at *8.
The American Coal Co., __ FMSHRC ___ (Rev. Comm. Aug. 2016) (Docket No. LAKE 2009-35).
On August 30, 2016, the Commission affirmed an ALJ’s “flagrant” finding for one order while vacating and remanding the ALJ’s “flagrant” finding for a second order. The American Coal Co., __ FMSHRC ___ (Rev. Comm. Aug. 2016) (Docket No. WEVA 2009-35).
All five Commissioners agreed with the ALJ that Order No 7490584 was properly designated as flagrant; however, Commissioner Althen disagreed with the Commission’s holding and wrote separately. According to the Commission, for a flagrant violation it must be established that: (1) there was a condition that constituted a violation of a mandatory health or safety standard; (2) the violation was “known” by the operator; (3) the violation either (a) substantially caused death or serious bodily injury, or (b) reasonably could have been expected to cause death or serious bodily injury; (4) there was a failure on the part of the operator to make reasonable efforts to eliminate the violation; and (5) the failure was either “reckless” or “repeated.”
The Commission held that a violation is “known” if the operator had actual or constructive knowledge of the violative condition. American Coal at *6. Whether the violation either (a) substantially caused death or serious bodily injury, or (b) reasonably could have been expected to cause death or serious bodily injury, the Commission rejected American Coal’s position that the gravity must be something more than “lost work days” or “permanently disabling.” The Commission found that the flagrant language was close to prong four of the Mathies test for S&S, but ultimately declined to decide “whether the slight difference between the pertinent language of the flagrant provision and the fourth element of Mathies mandates that flagrant violations cover only ‘a narrower, more severe subset of hazards’ than violations of S&S.” The Commission also found that the term “repeated” was ambiguous, and that the focus should be on the “operator’s dereliction where immediate remedial action was required, and not on a particular number of failures.” American Coal at *12-14. The Commission rejected American Coal’s contention that it did not have notice of what constituted “repeated failure” and found that an operator’s history may be probative of the conditions in which the alleged flagrant failure occurred.
While upholding the ALJ’s determination that the first order was flagrant, the Commission remanded the decision concerning the second order to determine whether it was flagrant under the narrow approach in light of certain findings made by the Commission and if not, whether it was flagrant under the broad approach, which considers the operator’s history of past violations. Commissioner Althen (concurring in part, dissenting in part) disagreed with the majority that constructive knowledge was enough to establish a known violation and that a flagrant designation can be substantiated by a history of previous violations. American Coal at *41-55.
Jackson Kelly will continue to monitor these and other important decisions that impact operators.
This article was authored by Kristin R.B. White, Jackson Kelly PLLC. For more information on the author, click here.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
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