Secretary of Labor v. Northshore Mining Company, Roger Peterson, and Matthew Zimmer

Plain-English summary

The Commission had previously upheld reckless-disregard and unwarrantable-failure findings, deleted a flagrant designation, and rejected individual liability for two Northshore Mining employees. The Eighth Circuit reversed the Commission on the flagrant and individual-liability issues. Its mandate directed consideration of whether the penalty for the flagrant violation of the travelway standard should be reassessed. The Commission therefore remanded the matter to the Chief Administrative Law Judge for that penalty determination.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.11002
• Outcome: The case was remanded for consideration of reassessing the penalty for the flagrant violation in Order No. 8897220.
• Key point: After the court restored the flagrant designation, the remaining agency task was to determine whether the penalty should change.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF
LABOR, :

MINE SAFETY AND
HEALTH :

ADMINISTRATION
(MSHA) :

                                                                     :

                    v.
                                         :          Docket Nos. LAKE 2017-0248

                                                                     :

LAKE 2017-0224

                                                                     :

LAKE 2018-0146

                                                                     :

LAKE 2018-0141

                                                                     :

                                                                     :

NORTHSHORE MINING
COMPANY, :

ROGER PETERSON,
employed by :

NORTHSHORE MIINING
COMPANY, and :

MATTHEW ZIMMER,
employed by :

NORTHSHORE MINING
COMPANY :

BEFORE: Jordan,
Chair; Althen, Rajkovich, Baker, and Marvit, Commissioners

DECISION

BY THE COMMISSION:

These
proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”) from Cross Petitions for Discretionary
Review filed by the parties. On January 21, 2021, the Commission affirmed the Administrative
Law Judge’s findings of reckless disregard and unwarrantable failure
designations, affirmed the Judge’s deletion of a flagrant designation, and
reversed the Judge’s findings of individual liability under section 110(c) of
the Act. 30 U.S.C. § 820(c).

On
August 22, 2022, the U.S. Court of Appeals for the Eighth Circuit issued a
decision reversing the Commission’s decision on the issues of the flagrant
designation and individual liability. The court remanded the case “for
consideration of whether the penalty amount for [the flagrant violation of 30
C.F.R. 56.11002 set forth in Order No. 8897220] should be reassessed.” The
Court subsequently issued its mandate on October 13, 2022.

In
accordance with the court’s decision, the Commission hereby remands this matter
to the Office of the Chief Administrative Law Judge for consideration of
whether the penalty amount for the flagrant violation of 30 C.F.R. 56.11002 set
forth in Order No. 8897220 should be reassessed.

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe
Z. Marvit, Commissioner

Distribution:

R. Henry Moore,
Esq.

Fisher &
Phillips LLP

Six PPG Place,
Suite 830

Pittsburgh, PA
15222

[email protected]

Emily
Toler Scott, Esq.

Division
of Mine Safety and Health

Office
of the Solicitor

U.S.
Department of Labor

201
12th Street South – Suite 401

Arlington,
VA 22202-5450

[email protected]

April
Nelson, Esq.

Office
of the Solicitor

U.S.
Department of Labor

201
12th St. South-Suite 401

Arlington,
VA 22202-5450

[email protected]

Melanie
Garris

Office
of Civil Penalty Compliance, MSHA

U.S.
Department of Labor

201
12th Street South, Suite 401

Arlington,
VA 22202-5450

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]