Examining flagrant and reckless MSHA violations

By and |  March 10, 2021
Headshots: Bill Doran and Margo Lopez

Bill Doran and Margo Lopez

In a 2-1 decision in January, the Federal Mine Safety & Health Review Commission shed additional light on what is and is not a flagrant violation. 

In Northshore Mining, the Review Commission affirmed the finding of unwarrantable failure and reckless disregard contained in a citation alleging that an elevated walkway had not been maintained in good condition pursuant to 30 C.F.R. § 56.11002. Nonetheless, the review commission found that there was an insufficient factual basis to support the Mine Safety & Health Administration’s (MSHA) citation classification as flagrant.

As a basis for these allegations, MSHA asserted that management personnel were aware of the deficient condition of the elevated walkway, substantive repairs had been recommended in a third-party engineering report, and ultimately no prompt actions were taken short of implementing a fall protection requirement for personnel accessing the walkway. MSHA also assessed section 110(c) agent penalties against two supervisors for allegedly knowingly failing to maintain the walkway in good conditions. 

An administrative law judge agreed with MSHA on the issue of unwarrantable failure, reckless disregard and the 110(c) personal liability of the supervisors, but rejected the flagrant allegation. The review commission majority upheld the judge’s unwarrantable failure and reckless disregard findings but overturned the 110(c) personal liability findings.

Setting precedent

The review commission pointed out that  the flagrant designation was initiated by the 2006 MINER Act as a way to target “bad actors,” with heightened maximum penalties providing a greater element of deterrence. As such, the review commission explained the flagrant designation was essentially the highest rung on a progressive civil penalty ladder and required especially wrongful misconduct. 

In reaching their decision, the majority parsed the MINER Act’s flagrant provision at section 110(b)(2). That language specifically states that “the term flagrant with respect to a violation means 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 majority clarified that this meant that the operator needed to have “actual” knowledge of the violation that created a “reasonable expectation” of death or serious injury.

Applying that framework to the facts in this case, the majority reasoned that while the mine operator had actual knowledge of the deteriorating condition of the walkway – through both firsthand observation and a third-party engineering report – its actions did not rise to the heightened state of recklessness necessary to support a flagrant violation. Specifically, the majority said that the record did not demonstrate that management “consciously or deliberately disregarded” an expected risk. They pointed to the following factors:

The operator implemented fall protection measures to deal with the expected hazard of falling through a hole

The operator did not expect a dislocation of the entire walkway.

The operator reached out to the third-party engineering company to learn about the walkway condition.

The operator did not attempt to bury or hide the evidence.

The operator conducted numerous safety meetings regarding the condition of the walkway.

The majority reasoned that these actions – although ineffective in eliminating the hazard – demonstrated a substantial concern for safety and was not indicative of a “bad actor.”

What could change

The dissent in the case essentially disagreed with the majority’s requirement that a heightened level of recklessness had to be demonstrated in order to support a flagrant designation. Under this analysis, evidence of a conscious and deliberate expectation of death or serious injury was not necessary.

As of this writing, there is no indication of whether there is going to be an appeal. However, everyone should stay tuned, as the Biden administration will soon be filling the two empty seats on the review commission. A new majority might have a different perspective.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com

Featured image: Pit & Quarry Staff

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