Josh Schultz, Esq.
Court of Appeals Upholds Flagrant Violation
In an August 22, 2022 decision, the United States Court of Appeals For the Eighth Circuit upheld a "flagrant" order against an iron ore mine operator in Minnesota after a contract worker was injured on a walkway. In the case, Northshore Mining Company v. Secretary of Labor, the 8th Circuit also found two managers employed by Northshore personally liable for the violation and assessed each with a $4,000 fine based on the managers’ lack of effort to encourage repairs despite knowing about a dangerous walkway.
The court noted that in June 2015, an independent engineering report commissioned by the company found that an elevated walkway at its iron ore processing plant was structurally inadequate and unsafe for use. Mud and debris often covered the walkway, which hid the deficiencies from miners’ view. The decision states that "Northshore made no efforts to repair the walkways and did not prohibit access to them or put up signs warning about their condition. [Management] decided to implement a fall protection policy for miners on the outer walkways. Northshore did not enforce compliance with the policy."
In September 2016, a miner working on the walkway about 50 feet above the ground was injured when the walkway collapsed. The miner suffered a spinal contusion, was diagnosed with PTSD, and experienced disrupted sleep. He filed a hazard complaint with MSHA, leading to the inspection resulting in the citations at issue.
MSHA’s litigation position, taken from the Second Restatement of Torts, defined reckless to mean “if [a mine operator] knows, or should know to ameliorate a known violation, but fails to make reasonable efforts to fix the violation.”
The "flagrant" designation was added to MSHA's citations and orders after Congress passed the Mine Improvement and New Emergency Response Act in 2006 (MINER Act). The MINER Act created the flagrant designation, with penalties currently up to $291,234, to be imposed for flagrant violations of mine health and safety standards. The MINER Act defines a flagrant violation 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.”
In determining whether Northshore's failure to repair the walkway constituted a flagrant violation, the Court of Appeals looked to the definition of "reckless." The Court noted that the MINER Act does not define reckless nor is its meaning readily apparent from references to other sources such as the Mine Act. MSHA’s litigation position, taken from the Second Restatement of Torts, defined reckless to mean “if [a mine operator] knows, or should know to ameliorate a known violation, but fails to make reasonable efforts to fix the violation.” MSHA argued that this "definition also is consistent with how civil recklessness is defined elsewhere.” The Court of Appeals found that MSHA's definition of reckless was reasonable and aligned with the MINER Act’s purpose. Thus, MSHA's showing that Northshore's failure to make reasonable efforts to fix the walkway, and that the condition reasonably could have been expected to cause death or serious bodily injury justified the flagrant characterization to the Court of Appeals.