In a 2–1 decision on January 21, 2021, the Federal Mine Safety and Health Review Commission (FMSHRC) shed additional light on what is and is not a flagrant violation of the Mine Act.

In Secretary of Labor v. Northshore Mining Co., the FMSHRC affirmed the finding of “unwarrantable failure” and “reckless disregard” contained in a federal Mine Safety and Health Administration (MSHA) 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 MSHA’s citation classification as a flagrant violation.

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 prompt action was not taken other than implementing a fall protection requirement for personnel accessing the walkway. MSHA also assessed agent penalties under section 110(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) against two supervisors “for knowingly failing to maintain the walkways in good condition.”

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

Setting Precedent

The review commission pointed out that the flagrant designation was initiated by the Mine Improvement and New Emergency Response (MINER) Act of 2006 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 its 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 bodily 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 of death or serious bodily injury.” The majority 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 contacted 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 were 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.

There is currently no indication of whether there is going to be an appeal. However, the Biden administration will soon be filling the two empty seats on the FMSHRC. A new majority might have a different perspective.