Sarah Ghiz Korwan, Esq.
Commission Issues Decision Addressing Flagrant Violation Criteria, Reckless Disregard and Individual
On January 21, 2021, the Federal Mine Safety and Review Commission affirmed ALJ Margaret Miller’s determination that a citation and an order related to a walkway ramp at taconite plant were unwarrantable failures and constituted reckless disregard of the standard. On review, the Commission (2-1) agreed that the order did not constitute a flagrant violation under section 110(b)(2) of the Mine Act, which the Secretary challenged. However, the Commission reversed the ALJ’s decision affirming the penalties assessed against Roger Peterson (Peterson) and Matthew Zimmer (Zimmer).
The case, Sec. of Labor v. Northshore Mining Company, Roger Peterson, and Matthew Zimmer, involved an accident in which a conveyor walkway ramp dislocated at a processing plant owned and operated by Northshore, an iron ore mine. Minor injuries resulted from the incident, and the miner involved submitted a hazard complaint with MSHA. Following its investigation, MSHA issued Northshore a 104(d)(1) order which alleged that the walkway ramp was “not of substantial construction nor maintained in good condition,” in violation of 30 CFR § 56.11002 and was a flagrant violation. In addition, a 104(d)(1) citation was issued which alleged that the ramp was “not barricaded or posted to alert miners to the compromised conditions of the floors,” allowing miners to access the ramp, in violation of 30 CFR § 56.20011. As noted, individual penalties were also assessed against two members of mine management.
The record showed that in 2013, a work order concerning the need for repairs to the conveyor gallery was submitted, which was put on a “to-do” list, but repairs were never performed. In 2015, Northshore retained Krech & Ojard (KOA), an engineering firm, to evaluate the conveyor gallery, which included the central and side walkways. KOA’s report indicated that the outer walkways were not structurally adequate for use and recommend that Northshore “restrict” access to the outer walkways, as they were not safe for personnel to be using until repaired. Northshore neither repaired nor blocked access to the walkway. However, employees were required to wear fall protection when accessing the outer walkways, and employees were instructed on the proper use of fall protection safety meetings and training.
Regarding the 110(c) penalties, the ALJ found that Zimmer and Peterson engaged in a knowing violation of section 56.11002 and assessed a $4,000.00 penalty against each of them. However, the Commission noted that a violation of section 110(c) requires that the agent must be in a position to correct the condition at issue in order for section 110(c) liabilities to attach and found that Zimmer and Peterson were not in the capacity to direct the repairs to the walkway at issue. Specifically, Zimmer was responsible for maintaining the pellet plant and equipment, while Peterson oversaw the equipment operation. In addition, neither Zimmer nor Peterson received the work order which addressed the condition of the walkway. Therefore, the Commission found that substantial evidence did not support the ALJ’s findings of individual penalties and vacated the ALJ’s section 110(c) findings.
In relation to the 30 U.S.C. § 56.20011 charge, the ALJ concluded that Northshore’s failure to barricade the walkway was the result of reckless disregard, and that Northshore knew of the problem but took no steps to limit access, thereby demonstrating an indifference to a known hazard. Because Northshore did not pursue reversal of the 104(d)(1) order on appeal, the Commission found that Northshore waived its request for review and summarily affirmed the ALJ’s findings.
Regarding the 104(d)(1) citation, the ALJ similarly found that the operator’s violation of 30 C.F.R. § 56.11002 resulted from an unwarrantable failure and reckless disregard. The Commission agreed with the ALJ’s findings regarding the aggravating factors, including the length of time that the violation had existed, the extent of the violative condition, the operator’s efforts in abating the violative condition, degree of danger posed by the condition, and the operator’s knowledge of the condition. The Commission rejected Northshore’s argument that the engineer’s report was ambiguous and found that they knew the walkways were unsafe. Further, the Commission found substantial evidence supported the ALJ’s finding that the violation was an unwarrantable failure and reckless disregard of the standard.
Regarding the “flagrant” designation alleged by the Secretary, the Commission found that the ALJ properly rejected this as it applied to the violation of section 56.11002. Of the factors which constitute a flagrant violation, the ALJ found that Northshore’s conduct did not constitute “reckless” within the meaning of 110(b)(2) and the Commission agreed. Notably, Northshore took action to learn about the condition of the walkway by retaining KOA to evaluation the condition, and believed, albeit wrongly, that fall protection would solve the problem of the walkways until repairs could be completed.
The Commission discussed the “flagrant” violation standard at length and proffered that an operator is “reckless” for purposes of a “flagrant” violation when it consciously or deliberately disregards an unjustifiable risk of harm arising from its failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standards. In addition, the Commission affirmed the ALJ’s finding that the violation was not “reckless” in the flagrant context since Northshore did not “flout” the Mine Act nor did they consciously or deliberately disregarded an expected risk of death or serious bodily injury.
Commissioner Traynor wrote a lengthy dissent. He disagreed with the majority’s position that the violation of section 56.11002 was not “flagrant” within the meaning of 110(b)(2) and that the operator’s agents were not individually liable under section 110(c). He argued that the majority incorrectly interpreted the “reckless” standard, but that in any event, the facts of the case were so egregious the majority should have found the violation was flagrant. Regarding the individual penalties assessed against Zimmer and Peterson, Commissioner Traynor disputed the majority’s interpretation of the facts and asserted that “aggravated conduct” warranted a finding of liability under section 110(c).