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

Read the official release (fmshrc.gov)

Plain-English summary

Northshore received an engineering report stating that deteriorated outer conveyor walkways were unsafe for personnel until repaired, but the company relied on fall protection and did not repair or barricade the walkways. During a cleanup job, a structural member failed and part of an elevated walkway dislocated while a contract miner was working on it. MSHA cited Northshore for failing to maintain the walkway in good condition and failing to barricade or post the hazardous area. The Commission affirmed that both violations resulted from reckless disregard and unwarrantable failure. It also affirmed the judge's decision that the walkway violation was not flagrant. The Commission vacated the individual penalties against managers Roger Peterson and Matthew Zimmer because the evidence did not show that they had authority to initiate or prioritize the structural repairs.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.11002; 30 C.F.R. § 56.20011
• Outcome: Both operator violations and their unwarrantable-failure findings were affirmed, the flagrant designation remained deleted, and the individual penalties were vacated.
• Key point: Managers cannot be held individually liable under section 110(c) unless the record shows they were in a position to remedy the cited condition.

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:
Rajkovich, Chairman; Althen and Traynor, Commissioners

DECISION

BY:
Rajkovich, Chairman; and Althen , Commissioner

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. Northshore asks that we find that the Administrative Law Judge (“Judge”)
erred in determining that a citation and order were unwarrantable failures and
constituted reckless disregard. [1]
41 FMSHRC 50 (Feb. 2019) (ALJ). Messrs. Peterson and Zimmer ask that we find
the Judge erred in assessing penalties against them pursuant to section 110(c)
of the Mine Act, 30 U.S.C. § 815(c). [2]
The Secretary asks that we find the Judge erred in finding that the order did
not constitute a flagrant violation under section 110(b)(2) of the Mine Act, 30
U.S.C. § 820(b)(2). [3]

The
citation, order, and section 110(c) penalty assessments arise from the
dislocation of a conveyor walkway ramp at a processing plant owned and operated
by Northshore. The Order (Order No. 8897220 )
alleges
that the walkway ramp was “not of substantial construction nor . . . maintained
in good condition,” in violation of 30 C.F.R. § 56.11002 [4] and was a
flagrant violation. S. Ex. 5. The Citation (Citation No.
8897219) alleges that the ramp was “not barricaded or posted to alert
miners to the compromised condition of the floors,” allowing miners to access
the ramp, in violation of 30 C.F.R. § 56.20011. [5]
S. Ex. 6. Finally,
the Secretary undertook separate proceedings under section 110(c) of the Mine
Act against Messrs. Peterson and Zimmer.

As set forth below, we affirm the findings
of reckless disregard and an unwarrantable failure for both violations. Substantial
evidence does not support the Judge’s assessment of individual penalties under
section 110(c), and we reverse those findings. We affirm the Judge’s deletion
of the flagrant designation for the violation of section 56.11002.

I.

Factual and Procedural Background

A.     Factual
Background

1. Background of
   the Mine and the Events Preceding the Accident

Northshore
operates a large iron ore mine in Minnesota including a production plant that
processes iron ore pellets, known as taconite. The production plant houses a
conveyor gallery, which contains two parallel conveyor belts: the 62 conveyor
and the 162 conveyor. The conveyors are 400 feet long. Tr. 150. They slope at
an upward angle and transport taconite from various facilities either up to
storage bins or back to the production yard.

A
center walkway between the two conveyor belts serves as the primary travelway
in the conveyor gallery. It is constructed of two separate layers. The top
layer is comprised of concrete reinforced with steel mesh, and the bottom layer
consists of reinforced perlite [6]
panels. Tr. 316-17, 365; S. Ex. 12. Steel plates were added under the center
walkway in 2010 for additional reinforcement.

Along
the outer side of the two conveyor belts are two additional walkways in the
gallery: the east outer walkway and the west outer walkway. The dislocation at
issue occurred at the east outer walkway. Tr. 52-53, 58-59. Both outer walkways
are approximately 30 inches wide, much narrower than the center walkway. They are
four inches thick. They rise along the full length of the gallery, parallel to
the center walkway and conveyor belts to a height of approximately 72 feet. They
are constructed in similar fashion as the center walkway (reinforced concrete
over reinforced perlite panels) but do not have added underlying steel plates.

Unlike
the center walkway, the outer walkways were not normally used as travelways. They
would only be accessed when a belt support roller, known as an “idler,” needed
to be changed or if cleaning the outer walkways was necessary. The rollers were
approximately 40 inches wide and weighed about 100 pounds. [7]

Daniel Scamehorn has been the
supervisor in charge of providing engineering services for all areas of the
mine since 2011. In 2013, one of Scamehorn’s subordinate engineers submitted a
work order concerning the need for repairs in the 62/162 gallery, including the
outer walkways. The work order stated that: “Lightweight concrete [perlite] panels
on underside of 62/162 belt gallery are falling. . . . Center walkway was
repaired with steel plate; outside walkways and below conveyor need to be
repaired.” S. Ex. 18. It stated the “[b]est procedure is to demo [the panels]”
and “put a plate on under side.” Id. Repairs, however, were not made at
that time. Instead, repairs to the 62/162 gallery’s outer walkways were put on what
Scamehorn described as the equivalent of a “to-do list.” Tr. 339.

2. The
   KOA Report

Scamehorn contracted with Krech &
Ojard (“KOA”), an engineering firm, for a thorough review and second opinion on
the condition of the gallery, including an examination of the outer walkways. Tr.
323-24; 41 FMSHRC at 54. Patrick Leow, an engineer with the firm, went to the
mine in March 2015 to examine the gallery.

In
June 2015, KOA completed a report setting out its observations and conclusions.
 The report found that KOA had not seen holes in the outer walkways, but it did
“[o]bserve[. . .] damage . . . [that] included spalled concrete, delaminated
concrete, debonded reinforcement and corroded reinforcement over large areas of
the walkway slab underside.” [8]
S. Ex. 12, at 1. The report also noted that the topping slab was “in poor
condition and i[n] need of replacement due to the large surface cracking and
heaving . . . .” Id . The report concluded that “the deteriorated perlite
slabs are compromised and provide little to no structural support” and that
“[t]he heaving and cracked concrete topping slab is also compromised providing
little to no structural support in the walkways as well as presenting an uneven
walking surface.” Id . at 2

The
report indicated that the outer walkways lacking steel plate reinforcing “may
not contain adequate structural support for the use of these walkway areas.” S.
Ex. 12, at 2;    Tr. 144. The report concluded that, while the reinforced
portions of the center walkway could withstand some limited “minor” use, the
outer walkways “ cannot be found to be structurally adequate for use.” S.
Ex. 12, at 2. The report recommended that Northshore “prohibit” the
transportation of heavy equipment along the center walkway and “restrict”
access to the outer walkways “as they are not safe for personnel to be
using until a repair has been completed.”

S.
Ex. 12, at 2.

Scamehorn
shared the report with other management personnel, including Zimmer and
Peterson. Zimmer was a Section Manager responsible for scheduling repairs,
planning repairs, and monitoring equipment to “predict failure . . . before the
failure actually occurs.” Tr. 380-83. Peterson was responsible for maintenance
of the conveyor. Tr. 418-20. Scamehorn did not close the outer walkways to foot
traffic but did instruct Zimmer and Peterson to “restrict access as noted.” Tr.
327.

Scamehorn
testified that he initially was uncertain about what Leow meant by the term
“restrict.” Tr. 326-29. He testified to a follow-up discussion with Leow, during
which Leow said the report’s observations about the condition of the concrete
of the outer walkways pertained only to localized spots and did not suggest a
potential failure of the overall walkway. Furthermore, Leow testified that he
had used the term “restrict” to indicate that there was no outright prohibition
on travel along the outer walkways, so long as travel was minimal and limited
to “authorized personnel” and that further preventative safety measures were
taken.

Tr.
370-71.

Scamehorn
testified that, based upon his understanding of the report and his subsequent
discussion with Leow, Northshore instituted a requirement that employees wear
fall protection when accessing the outer walkways. They did not erect any
barricades or post any warning signs about the condition of the walkways.

The
requirement of fall protection was conveyed to Northshore’s workforce through
safety meetings and trainings. According to Zimmer, Peterson, and a maintenance
supervisor Erik Ollila, management did not receive any complaints from the workforce
regarding the need to wear fall protection. Tr. 452.

Operations
at the mine slowed between November 2015 and March 2016. According to Ollila, shortly
after operations fully resumed, miners informed Northshore that perlite from
the underside of an outer walkway was falling from the bottom of the conveyor
gallery. In response, Northshore brought in jersey barriers to barricade the
area below the walkways where the material was falling.

3. The Accident and
   MSHA’s Investigation

On
September 6 and 7, 2016, Evander King and two other contract miners, received
orders from Northshore to clean the east outer walkway. The walkway was covered
with 6 to 12 inches of taconite pellets and mud. Their job was to wash taconite
pellets down the walkway in order to remove it. As they washed the material
down the walkway, it began to amass into a larger amount of material.

Dennis
Lehtinen, an hourly day-crew operator, gave the work instructions to the
cleanup crew. Lehtinen had been instructed by John Gornick, the Electrical
Supervisor and the liaison to contract employees, to tell the crew to wear the
fall protection. Lehtinen testified that he went to the 62/162 conveyor gallery
to make sure they were wearing the fall protection correctly. He stated that he
went to the top of the conveyor gallery and observed that the crew members were
tied off at an appropriate place. According to King, Lehtinen basically
instructed the crew members generally on how to put the safety harnesses on and
how to tie off with the lanyard from the harness. Lehtinen testified that he
effectively instructed the crew to tie off the entire time, by taking them
through the process. According to Lehtinen, he instructed them to affix
lanyards in sequence as each descended the walkway, and he told them to tie off
to structural steel supports. Tr. 485-87.

King
testified that he heard Zimmer and Gornick decide that the crew should use fall
protection. King asked them why it was necessary for the enclosed walkway. Peterson
replied that fall protection was needed in case the miners slipped on the
pellets or if a piece of their clothing got caught in the conveyor. 41 FMSHRC
at 52.

King
testified that Lehtinen did not instruct the contract crew specifically on how
or where to tie off as they went down the walkway and that it was not possible
to be tied off 100% of the time on the outer east walkway. He said that, due to
the location of anchor points, miners would “unclip, take off the strap with
the D-rings, move down, put the strap back on, and then tie the lanyard to the
D-ring and reclip it.” Tr. 54-55.

The
crew was unable to finish the cleanup before the end of its shift on September
6, 2016 and resumed its work the following day. King testified that he was hosing
down the taconite pellets at a height of approximately 50 feet when “the entire
structure began to shake.” Tr. 58-59. “[A]ll of a sudden sheets of thick, caked
mud” and other “buildup around the structure began falling.” Tr. 58.

As
instructed, King was wearing fall protection. He saw a hole covered by wire
mesh in the floor immediately in front of him. He waited briefly to make sure
the event was over, unclipped himself from his lanyard, and ran back up the
ramp.

King
testified that, immediately after the event, maintenance technician Matthew
Bailey ran up to the transfer tower and asked the crew what happened. King told
Bailey that “something just gave way in there.” Tr. 60. Bailey asked, “You were
on this side?” Id . King responded, “yes.” Id . Bailey said, “You
never should have been in there.” Id . Bailey said to King that the
conveyor should have been shut down and, “we’ve been telling them [upper
management] that that has been in terrible condition for years now.” Id .
King testified that Bailey repeated this statement as he drove the crew to
the pelletizer break room.

Later
that day, in the break room, King told Senior Maintenance Technician Steven
Floen what had happened. Floen became “very angry” and “he said that he had
been telling those people upstairs about this problem for a long time, years he
said even.” Tr. 61. King testified that Floen said, “they [upper management]
just don’t seem to care.” Id .

King
testified that when he returned to work on September 8, 2016, Gornick “said he
was glad that nothing terrible had happened but that they had known the
potential of a collapse or of a failure and they had been hoping to take the
weight of the pellets off to make sure the ramp would last a little bit longer
before they had to replace it.” Tr. 66.

The
following day, King submitted a hazard complaint to MSHA about the 62/162
gallery’s outer walkways. The complaint stated that “miners were assigned to a work
area without being informed of known hazards.” S. Ex. 2. MSHA Inspector Terrance
Norman conducted the investigation to follow up on the complaint. Norman also consulted
with Michael Superfesky, an MSHA civil engineer.

Superfesky
examined the plant. He confined his inspection of the walkways to views from
beneath the walkway and did not examine the walkway from above. In testifying
regarding the perlite, he opined that wire mesh is “essential” to construction
because the tensile strength of concrete is “very poor” on its own. Tr. 242. Once
the mesh debonds from the perlite, the load-
carrying
capacity of the walkway is “highly compromise[d]” and “you don’t want to walk
on it.” Tr. 243. Superfesky’s testimony, however, shows he did not realize that
the concrete above the perlite panels was reinforced with steel mesh. Tr. 261.

Superfesky
concluded that the mesh in the lower layer of perlite had debonded and that the
outer east walkway was structurally deficient for foot traffic at the time of
the accident. Superfesky also inspected the outer west walkway and noted
debonding and spalling on that walkway, as well.

Superfesky
testified that fall protection does not prevent serious injury when the hazard
is a structural deficiency. He asserted that the force on the body when falling
with protection is severe, the miner might be hit with debris from the
collapse, and if not rescued quickly, suspension trauma might cut off
circulation resulting in loss of limb. His testimony in this respect was
general and did not include analysis of any likelihood of injuries, possible,
probable, or expected at the Northshore plant.

Mine
management conducted its own investigation. According to Michael Osmundson, an
expert metallurgist, and David Franseen, an expert KOA engineer, the failure of
a diagonal steel cross member beam caused the dislocation of the walkway. The
beam failed at a series of rivet holes positioned above the walkway due to the
weight of taconite being washed down the walkway. As a result of the steel
failure, the steel structure rotated and removed support from the outer edge of
the portion of the walkway that failed. The steel structure supporting the east
walkway had dropped about 2 feet at the point of failure causing a segment of
the floor to dislocate. Tr. 522, 526, 528, 530; Resp. Ex. M3; Resp. Ex. M5; Resp.
Ex. O.

A
subsequent analysis of the failed beam by metallurgist Osmundson demonstrated,
and Superfesky agreed, that a crack had existed at the point of failure on the
diagonal steel beam. Osmundson testified that the crack had developed at a
connection point near the roof of the gallery structure and was covered by a
gusset plate, obscuring the crack from view. Tr. 501-02; Resp. Ex. K. During
cross-examination, MSHA’s Superfesky agreed that the immediate cause of the
dislocation was the failure in the steel beam but asserted that if the walkway
had been in better condition it would not have dislocated. Tr. 287-288. It was
noted that after the incident, the walkway remained intact even with only one
side supported by steel. In repairing the walkway, the concrete came out in
long unbroken segments and was difficult to break. Tr. 399, 533.

4. MSHA’s
   Issuance of the Citation and Order

Following MSHA’s investigation, the
agency issued the order alleging the “reckless disregard,” “unwarrantable
failure,” and “reckless” flagrant violation of section 56.11002 alleging
Northshore’s failed to maintain the walkway in “good condition.” S. Ex. 5, at
5-6. MSHA also issued the citation alleging a “reckless disregard” and
“unwarrantable failure” violation of section 56.20011 for the failure to
barricade or warn miners away from the damaged walkways. S. Ex. 6. MSHA
proposed penalties of $130,000 and $69,400 respectively.

MSHA also issued proposed penalty
assessments against Zimmer and Peterson. The assessments alleged that they had knowingly
failed to maintain the walkways in good condition and proposed penalties of
$4,300 and $4,500 respectively. These assessments were based upon a later
investigation and interviews conducted by MSHA Investigator James Hautamaki,
from November, 2016 to January, 2017.

Northshore, Zimmer and Peterson filed
notices of contest. The matters were assigned to the Judge, who consolidated
the dockets for a single hearing.

B. The
Judge’s Decision

In
upholding the citation and order, the Judge found them to be S&S and the
result of an unwarrantable failure and reckless disregard. 41 FMSHRC at 61, 63,

66. The Judge found Zimmer and Peterson personally liable under section 110(c)
    for knowingly failing to maintain the walkways in good condition. Finally, the
    Judge found the violation of section 56.11002 was not a flagrant violation. Id .
    at 68-69.

67. The Charge of Individual
    Penalty Assessments to Zimmer and Peterson

The Judge noted that Zimmer and
Peterson had worked at the mine for 13 years and 25 years, respectively, and
had managerial roles since at least 2015. The Judge found that Zimmer and
Peterson used the requirement of fall protection to avoid fixing the actual
problem: the hazardous walkway. She concluded that they “failed to act on the
basis of the walkway information to protect worker safety and health.” Id. at
76.

The
Judge also relied on the fact that Zimmer and Peterson received copies of the
KOA report, along with the email from Scamehorn suggesting that they “restrict”
access. According to the Judge, they should have known that the conveyor
walkways must be maintained in good condition or, alternatively, restricted
from access appropriately . As such, the Judge found that Zimmer and
Peterson engaged in a knowing violation of section 56.11002, and assessed a
penalty of $4,000 against each of them.

2. The Charged
   Violation of 30 C.F.R. § 56.20011

In
concluding that Northshore’s failure to barricade the walkway “was the result
of reckless disregard,” the Judge found that that Northshore “knew of the
problem with the east walkway but took no steps to limit access,” thereby
demonstrating “an indifference to a known violation.” Id . at 71.

The
Judge also upheld the unwarrantable failure designation. The Judge’s analysis
was similar to that concerning section 56.11002 set forth in detail below.

3. The Charged
   Violation of 30 C.F.R. § 56.11002

a.
Reckless Disregard

In
analyzing negligence, the Judge found that the walkway “continued to
deteriorate” after the KOA report and concluded that the operator’s failure to
maintain the walkway in good condition was the result of reckless disregard. Id .
at 62. The Judge found that “mine management knew of the condition of the area
yet demonstrated indifference to the violation, thereby placing the contract miners
in a hazardous position.” Id . at 63. 

b. Unwarrantable Failure

The
Judge found aggravating circumstances for each of the seven factors used to
evaluate unwarrantable failure violations. Id . at 63-66, citing IO
Coal Co ., 31 FMSHRC 1346, 1352 (Dec. 2009). Although the Judge acknowledged
the testimony of the KOA expert who was present throughout the dismantling of
the structure ( Id. at 59), the Judge credited Superfesky’s testimony that
the condition of the walkway was the primary reason for the failure. The Judge also
credited Inspector Norman’s testimony regarding statements made by miners
during his investigation, namely that miners had complained about the walkway
being in a deteriorating condition. The Judge rejected Leow’s explanation that his
use of the term “restrict” in the KOA report did not suggest a complete
prohibition of use of the walkways. Id . at 59.

c. Flagrant
Charge

The
Judge found all of the criteria for a flagrant violation existed except Northshore’s
conduct was not “reckless” within the meaning of section 110(b)(2). Id . at
68-69. The Judge cited The American Coal Co ., 38 FMSHRC 2062,
2069-70 (Aug. 2016), for the proposition that “based on the heightened
penalties available under the flagrant provision, the violations should be
distinguishable from those addressed under the S&S and unwarrantable
failure provisions of the Act. . . . Thus, the ‘reckless failure’ component of
a flagrant violation requires a higher negligence showing than that required
under the unwarrantable failure analysis.” 41 FMSHRC at 68.

The
Judge opined that to sustain a flagrant violation, the Secretary must prove a
heightened degree of recklessness in which the operator consciously disregards
an expectation of serious injury. The Judge found that Northshore believed,
albeit wrongly, that fall protection would “solve the problem” with the
walkways until repairs were completed. Id . The Judge found that the
operator “could have repaired the walkway, but the mine chose to use fall
protection as a solution,” but that “[g]iven that decision, there is no evidence
to suggest a conscious or deliberate indifference to the risks on the part of
the mine.” Id .

Thus, the Judge
found that Northshore’s conduct was insufficient to meet the recklessness
necessary for a flagrant violation. Id . at 68-69. Upon dismissing the
flagrant violation ,
the Judge assessed a penalty of $60,000 for Order No. 8897220. Id . at 77.

II.

Disposition

A.     Substantial
Evidence Does Not Support the Judge’s Findings of Individual Liability of
Zimmer and Peterson under Section 110(c).

Section
110(c) provides that:

Whenever a
corporate operator violates a mandatory health or safety standard[,] . . . any
director, officer, or agent of such corporation who knowingly authorized,
ordered, or carried out such violation . . . shall be subject to the same civil
penalties, fines, and imprisonment that may be imposed upon a person under
subsections (a) and (d).

30
U.S.C. § 820(c).

An agent violates section 110(c) through a knowing violation
“when an individual ‘in a position to protect employee safety and health fails
to act on the basis of information that gives him knowledge or reason to know
of the existence of a violative condition.’  Kenny Richardson , 3
FMSHRC at 16. Section 110(c) liability is predicated on aggravated conduct
constituting more than ordinary negligence. BethEnergy , 14 FMSHRC at
1245.” McCoy
Elkhorn Coal Corp. ,
36 FMSHRC 1987, 2003 (Aug. 2014) (Young, M. and Althen, W. concurring and
dissenting).

Importantly here, a
violation of section 110(c) requires that the agent must be “in a position” to
remedy the condition at issue, in order for section 110(c) liabilities to
attach. See, e.g ., Maple Creek Mining, Inc ., 27 FMSHRC 555,
567-70 (Aug. 2005) (one foreman was liable for water accumulation but two were
not because they did not have authority to take remedial action); see also
Lafarge Constr. Materials , 20 FMSHRC 1140, 1148 (Oct. 1998), citing Kenny
Richardson , 3 FMSHRC 8, 16 (Jan. 1981).

Applying this standard,
substantial evidence does not support the Judge’s findings that Zimmer and
Peterson were “in a position” to take action to repair the walkway. The Judge
found that “Zimmer testified that it was part of his job to plan and coordinate
the maintenance and repair work that would take place in the 62/162 gallery,
and ensure that his group worked safely.” 41 FMSHRC at 74. However, the Judge
failed to distinguish the scope of Zimmer’s repair duties regarding the walkway
structures as opposed to the conveyors. Nor did the Judge distinguish how much
involvement, if any, Zimmer had on how to prioritize, as opposed to implement,
repairs.

In fact, the record
contradicts the Judge’s findings. Specifically, the evidence shows that the
duty of arranging for repairs of the walkways fell strictly within the purview
of the Engineering Department, which was overseen by Scamehorn – not by Zimmer
or Peterson. Tr. 314, 339, 358, 370, 371. Scamehorn testified about his
evaluation process of determining which projects should be prioritized. Tr. 353-55.
Importantly, according to his testimony, the Engineering Department, and not
Zimmer, decided whether to initiate repairs of the walkways, and how to
prioritize the repairs – as opposed to any other department. Id .

Moreover, the record
demonstrates that, prior to June 1, 2015, Zimmer was in charge of maintaining
the pellet plant and equipment at the mine. Tr. 381. This is an
important distinction.

Additionally, Jason Betzler,
a Northshore maintenance planner, testified that work orders sent to the
Engineering Department under Scamehorn would address the maintenance of the buildings,
grounds , “or anything that required engineering or structure .
. . .” Tr. 304 (emphasis added). By contrast, Zimmer was involved only in
the “maintenance of the conveyors inside ” the structures, as opposed to
the maintenance of the walkway structures themselves. Tr. 384-85. (emphasis
added).

Regarding Zimmer’s work
after June 1, 2015, he oversaw day-to-day planning, scheduling, and reliability
functions. Tr. 382. Zimmer testified that the planning and scheduling were essentially
“administrative” functions. Tr. 382-83. Zimmer supervised the planners who
planned out the work, determined what was needed for the job, what parts needed
to be bought, how the work would get done, and how many technicians are
required to do the job. Tr. 383.  He also supervised the schedulers who
organized the work orders in the backlog to repair a piece of equipment at a
given point in time. [9] Tr. 382-83.

In other words, the record
demonstrates that Zimmer primarily oversaw the implementation of repair
efforts once they were initiated , but did not have the discretion to
decide whether to initiate such repairs in the first place or how to prioritize
them. In fact, Zimmer took “direction” from the Engineering Department. Tr. 386.
As such, substantial evidence does not support the Judge’s finding that Zimmer
was “in a position” to be responsible for maintenance of the walkway or other
building structures or grounds. He was not in a position to order any remedy to
structural problems with the walkway.

Similar facts pertain to Peterson.
He was responsible for overseeing the running of equipment. Tr. 418. Any
maintenance duties he had at the facility were similar to those of Zimmer. Thus,
Petersen testified that he was in charge of maintaining and repairing
equipment. Tr. 418. As with Zimmer, Peterson did not have control over a
project when it was assigned to the engineering department. Tr. 420-21.  

The Judge found that “Peterson
was largely responsible for reviewing work orders, prioritizing and directing
maintenance work, and, when necessary, informing miners of any changes in
safety policies or procedures.” 41 FMSHRC at 74. However, as noted above,
Peterson’s maintenance and work order duties appeared to only relate to equipment ,
and not to the building structures , such as the walkway. Repair of the
walkway, by contrast, fell within the purview of the Engineering Department.

The fact that neither Zimmer nor
Peterson was in a position to initiate or prioritize repairs of the walkway is
unsurprising when viewed in light of the significance of the repairs that were
required. Unlike the typical section 110(c) scenario involving a foreman observing
and ignoring an easy-to-fix hazard, such as a stuck belt roller, the operator
here bore the responsibility to take care of and repair the entire gallery
walkway. Such remedial efforts would have taken extensive time, effort, and
expense, as shown by the KOA
report .
See S. Ex.12. Northshore
estimated the total cost of all walkway repairs to be $300,000 prior to the
dislocation. There is no evidence in the record to indicate that either Zimmer
or Peterson were in a position to authorize such a large expenditure.

Based upon the foregoing discussion, we find Zimmer and Peterson
were not in a position to initiate, create, or prioritize a plan to repair the
outer walkways. Accordingly,
we reverse and vacate the Judge’s section 110(c) findings.

B.     Substantial
Evidence Supports the Judge’s Finding that the Operator’s Violation of 30
C.F.R. § 56.20011 Resulted from its Reckless Disregard and Unwarrantable
Failure.

Northshore
accepts that it was aware of the hazards on the walkway and that, nonetheless,
the walkway was not barricaded. The requirement in section 56.20011 is site-specific .
It goes to the issue of what should be done on the site – not what is
happening at a meeting off the site. The KOA report specifically
recommended restricting access on the outer walkways precisely because the
walkway was “not safe” to work on. S. Ex. 12, at 2.

Despite
knowing the walkway should be barricaded, Northshore left the site without a
barricade for more than a year. During that period, the walkway was open to
anyone, and although some might recognize the surface conditions, others might
not have appreciated the hazard of walking on the walkway especially due to the
buildup of mud and taconite. Nothing was done to bar entry.

Finally,
despite obtaining review before the Commission, Northshore offered the Commission
no argument for reversal thereby effectively waiving its request for review. Having
not been presented with a viable reason for Northshore’s failure to comply with
the mandatory standard, we find none. Accordingly, the Commission affirms the
findings of reckless disregard and unwarrantable failure for Citation No. 8897219 .

C.     The Judge
Properly Found That Northshore’s Violation of Section 56.11002 was Not Flagrant .

We
affirm deletion of the “flagrant” designation for the violation of section
56.11002.

1. Background of
   “Flagrant” in Section 110(b)(2)

In response to s equential tragedies at the Sago, Alma, and Darby mines in
2006, Congress enacted the MINER Act. Among other changes to the Mine Act,
Congress inserted an enhanced penalty for a new type of violation – a
flagrant violation. The definition of a “flagrant” violation is succinct but
complex. A flagrant violation is “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.”
30 U.S.C. § 110(b)(2).

Of course, as with all
assessments, the Secretary bears the burden of proving all necessary elements
of a violation. Therefore, the Secretary has an obligation to prove each element
of a flagrant violation by a preponderance of the evidence.

The legislative
history of the MINER Act makes it clear that Congress and the President
intended flagrant violations to target the elimination of particularly severe
violations of the mine safety and health standards. The flagrant penalty
targets “bad actors”’ who fail to take their safety responsibilities seriously
by providing an increased maximum penalty for flagrant violators. 152 Cong.
Rec. S4619 (daily ed. May 16, 2006) (statement of Sen. Michael Enzi);  s ee
also 152 Cong. Rec. E1071 (daily ed. June 8, 2006) (statement of Rep. Jerry
F. Costello) (supporting “stiffer penalties for flagrant violations of the
law”). Upon signing the MINER Act into law, President George W. Bush stated:
“[T]o ensure compliance with the law, the MINER Act will increase the maximum
penalty for flagrant violations of mine safety regulations nearly four-fold.” Presidential
Statement on Signing the Mine Improvement and New Emergency Response Act of
2006, 2006 U.S.C.C.A.N. S27 (June 15, 2006).

Further, the Commission
has observed that the Mine Act’s overarching enforcement scheme promotes mining
operators’ compliance with its requirements by providing “‘increasingly severe
sanctions for increasingly serious violations or operator behavior.”’   Emery
Mining Corp , 9 FMSHRC 1997, 2000 (Dec. 1987), quoting Cement Div., Nat’l
Gypsum Co ., 3 FMSHRC 822, 828 (Apr. 1981). Inclusion of the flagrant
provision in the MINER Act added another, expressly severe sanction for especially
wrongful misconduct. A four-fold increase in potential penalties demonstrates
that the denomination of “flagrant” applies to the most serious violations of
the Mine Act in the final step of civil penalties.

Recognizing this
legislative history and c onsistent
with the progressive scheme of deterrence, in American Coal , 38 FMSHRC at
2069-70, a unanimous Commission found the flagrant provision created a type of
conduct not previously addressed in the Mine Act. We found that a flagrant
violation must constitute conduct of a violation other than the existing types
of violations stating:

[I]t is reasonable to expect that  flagrant  violations be of a type that was
not addressed in the original Mine Act. Otherwise, Congress could have simply
increased the maximum amount at which a penalty can be assessed and avoided
creating a new statutory classification of violation.

Id. .

T he Commission
recognized that the Mine Act already dealt with unwarrantable failures – that
is, conduct involving aggravated conduct constituting more than ordinary
negligence. Emery
Mining , 9 FMSHRC at 1997. Additionally, through the treatment of “significant
and substantial” violations, the Mine Act dealt more harshly with violations that create
a cause and effect resulting in a reasonable likelihood of a reasonably serious
injury. Mathies Coal Co. , 6 FMSHRC 1 (Jan. 1984); Peabody Midwest
Mining, LLC, 42 FMSHRC 379 (June 2020). If Congress wished simply to
enhance penalties for these types of violations, it could have done so through
penalty increases standing alone. Instead, it increased penalties four-fold for
violations in which an operator demonstrated an extremely high level of
negligence approaching willfulness in failing to eliminate a known violation that
proximately and substantially caused death or serious bodily injury or created
a reasonable expectation of proximately and substantially causing death or
serious bodily injury. The flagrant violation, therefore, is a wholly new
category of violation.

As enacted, the
Mine Act did not contain the word “reckless.”  The MINER Act inserted the term “reckless” in two provisions. The first is the new
flagrant section at 110(b)(2). The second is in section 116(a). [10]

The purpose of
section 116(a) is to provide protection against liability for persons carrying
out activities responding to mine  accident  rescue or recovery
operations. However, the section explicitly exempts any action “that is alleged
to result in the property damages or injury (or death) was the result of gross
negligence, reckless conduct, or illegal conduct.” 30 U.S.C. §
826(a) (emphasis added). [11]    

In the MINER Act, therefore, Congress identified three
levels of misconduct – gross neglect, reckless conduct, and illegal conduct. Congress
classified recklessness as misconduct beyond gross negligence and bordering
upon illegal conduct. This not only confirms that recklessness is substantially
higher than ordinary negligence, but that the term “reckless” for MINER Act
purposes stretches into the fringe, or actually reaches willfulness when
applied to a flagrant analysis.

Congress’ use of the term “flagrant” gives flavor
and context to section 110(b)(2) . [12] In American
Coal , 38 FMSHRC at 2069-70, we found that a “flagrant” violation falls far
outside the bounds of “ordinary” negligence. Congress enacted a distinct
category of “flagrant” violations for violations of which the operator has
actual knowledge but recklessly fails to eliminate the violation despite a
reasonable expectation that it will be a substantial and proximate cause of
death or serious bodily injury. The violation is a conspicuously offensive
violation that flouts the Mine Act. In short, the acid test for flagrant
violations is whether the conduct flouts the salutary purposes of the Mine Act
by disregarding the safety of the miners.

Finally, section 110(b) contains prerequisites
for a finding of flagrancy that go substantially beyond the attributes of an
unwarrantable failure or a significant and substantial violation. Particularly,
the operator must fail to eliminate a “known” violation. The violation must
cause or reasonably be expected to substantially and proximately cause death or
serious bodily injury. The express statutory requirement for a reasonable
“expectation” of “serious bodily injury” substantially exceeds the “reasonably
likely” standard utilized at step three of Mathies , Newtown Energy, Inc. ,
and Peabody Midwest Mining, LLC . That
“expectation” standard also far exceeds the fourth step of the same S&S
test (that requires a reasonable likelihood of a “reasonably serious injury.”).
Id . A flagrant violation is not a significant and substantial violation
or unwarrantable failure writ large; it is a uniquely unconscionable failure. It
is clearly a uniquely wrongful violation.

2. The Plain Meaning of the Flagrant Section

In increasing
the maximum penalties, Congress dealt with two of the six penalty factors
expressed in the Mine Act – negligence and gravity. With regard to a flagrant
charge, these two factors must be viewed from the extreme extent in that the
required level of negligence approaches illegal or willful acts and the level
of gravity must be death or a reasonable expectation of death or serious bodily
injury. It is essential to break down the meaning of each phrase in section 110(b)(2).

a. “Reckless”

The term “reckless” has been defined
in numerous reference sources. [13]
The Restatement (Third) of Torts captures the
best applicability of that term to a flagrant charge by stating “ [a]
person acts recklessly in engaging in conduct if”:

(a)
the person knows of the risk of harm created by the conduct or knows facts that
make the risk obvious to another in the person’s situation, and

(b)
the precaution that would eliminate or reduce the risk involves burdens that
are so slight relative to the magnitude of the risk as to render the person’s
failure to adopt the precaution a demonstration of the person’s indifference to
the risk. [14]

Restatement (Third) of Torts § 2 (Am. Law Inst. 2010).

An operator is “reckless” for the 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 standard. Applying the Restatement
(Third) of Torts § 2 to a flagrant charge, the risk of harm is “unjustifiable”
if the burdens of reducing that risk are so slight relative to the risk
resulting from the operator’s failure to eliminate the violation.

The Judge below used the definition of “recklessness”
set out by a fellow Administrative Law Judge in Stillhouse Mining, LLC ,
33 FMSHRC 778 (Mar. 2011) (ALJ). There, the Judge stated recklessness is
when an operator “consciously or deliberately disregards an unjustifiable,
reasonably likely risk of death or serious bodily injury.” Id. at 804. We
recognize the key part of this definition is the requirement for a “conscious
or deliberate disregard.” However, contrary to the Judge’s use of the term
“reasonably likely,” a flagrant violation applies only to creation of a
reasonable expectation of death or a serious body injury just as the
statute clearly states.

30 U.S.C. § 820(b)(2).

The
proper standard for a “flagrant” charge is that there must be a conscious or
deliberate disregard for the safety of the miners through a failure to
eliminate a violation, of which the operator has actual knowledge, that
proximately and substantially caused death or serious bodily injury, or is reasonably
expected to proximately and substantially cause death or serious bodily injury.

b. “Known
violation”

Use
of the term “known” in the context of the four-fold increase in penalties in
section 110(b)(2) is consistent only with “actual knowledge.” [15]
As demonstrated in the discussion of the background of section 110(b)(2), the
provision was aimed at an especially bad actor – that is, an operator who
failed to take steps to eliminate a violation even though he or she knew
the violation existed and would expect it to kill or cause serious
bodily injury. Without doubt, Congress intended to impose those penalties upon
an operator who had actual knowledge of such a violation but deliberately
and consciously failed to act – essentially a conscienceless violator. This
intent is consistent with a requirement of actual knowledge. Consequently, a
violation is “known” by the operator when the operator is, in fact, aware of
the violation.

c.
“Reasonably
could have been expected to cause death or serious bodily injury”

Just as
Congress undoubtedly was aware of the factors for unwarrantable failures and
significant and substantial violations in the Mine Act, Congress was surely aware
that the Commission adopted a “reasonably likely” test for S&S violations.
Therefore, Congress’ use of the term “expected” rather than “likely” or even
“reasonably likely” is highly significant. [16]

In considering whether the Secretary has
proven a “reasonable expectation” of death or a “reasonable expectation” of a
serious bodily injury, the Judge must first consider whether it is reasonably
“expected” that an identified hazard will occur. If so, the Judge must then determine
whether occurrence of the hazard would be “expected” to cause death or serious
bodily injury. Such evaluation must be made in light of steps, if any, that the
operator took to eliminate the hazard.

An operator’s duty under the Mine Act is to eliminate violations.
Actions an operator must take to eliminate the violation, itself, might not be
the same as steps taken to eliminate the hazard which might lead to
death or serious bodily injury. In evaluating the “expectation” element of an
alleged flagrant violation, the Judge must consider the totality of the
circumstances related to the “expectation” of death or serious bodily injury
including measures taken to eliminate potential injuries. While steps taken to
abate the likelihood of injury do not satisfy the duty to eliminate the
violation, they are considerations for whether a violation is flagrant. For
example, barricading the ground below the walkway did not eliminate the
violation. However, by barring entry to the area below the walkway, it did
eliminate any reasonable expectation that miners would be hit by perlite
falling from above that area.

Section 3(j) of the Mine Act
defines an imminent danger as “ the existence of any condition or
practice in a coal or other mine which could reasonably be expected to
cause death or serious physical harm before such condition or practice can be
abated.” 30 U.S.C. § 802(j). Notably, therefore, the
definition of an imminent danger is identical to the definition of the physical
elements of a flagrant violation except for the use of the word “bodily” in
place of “physical.” Given the identical language, and putting aside the
temporal issues involved in an imminent danger, the expectancy and harm
elements of a flagrant violation essentially may be considered the repeated or
reckless failure to eliminate a known violation that is an imminent danger.

In
summary, a reasonable expectation of death or serious bodily injury is
not satisfied by a reasonable possibility or even a reasonable likelihood
(as that term is construed in the Mine Act) that a death or serious bodily
injury will happen. Hazards created by the known violation must be reasonably
expected to occur and, in turn, must create a reasonable expectation of death
or serious bodily.

3. The Judge
   Properly Found the Violation Was Not “Reckless” Within the Meaning of section
   110(b)(2).

Relying upon the Commission decision in American
Coal , the Judge identified the
following elements of a flagrant violation:

(1) there was a condition that constituted a violation of
a mandatory health or safety standard[;] (2)
the violation was “known” by the operator; (3) the violation either (a)
substantially caused death or serious bodily injury, or (b) reasonably could
have been expected to cause death or serious bodily injury; (4) there was a
failure on the part of the operator to make reasonable efforts to eliminate the
violation; and (5) that failure was either “reckless” or “repeated.”

41 FMSHRC at 67, citing 38 FMSHRC
at 2066-67. [17]

Consistent with the proper definition of
“reckless” as set forth supra , the Judge explored whether Northshore consciously
or deliberately disregarded an expected risk of death or serious bodily injury.
Based upon this analysis, the Judge ruled:

Respondent could have repaired the walkway but the mine
chose to use fall protection as a solution. Given that decision, there is
no evidence to suggest a conscious or deliberate indifference to the risks on
the part of the mine. Instead, the evidence indicates that the mine was
limited at best in its evaluation of the risks. In other words, rather than
ignoring the problem, the mine did not fully consider the appropriate steps to
take to mitigate the risk posed by the condition of the walkways. . . .
Therefore, I find that the violation of section 56.11002 cited in Order No.
8897220 is not flagrant within the meaning of section 110(b)(2) of the Act.

41 FMSHRC at 68-69 (emphasis added).

Substantial
evidence supports the Judge’s finding. The record indicates that the operator
implemented the fall protection measures in an attempt to eliminate the safety
hazard of miners falling on the walkways. Tr. 331-33, 427. While fall
protection is not the maintenance of the walkways, it is relevant to
determining whether “conscious or deliberate indifference” existed to a safety
issue in a flagrant analysis.

Here,
the operator had reached out to the engineering company, KOA, to learn about the
condition of the walkway. S. Ex. 12. It did not ignore the condition of the
walkway reported internally and in the KOA report. If an operator is acting
with “conscious or deliberate indifference” to an issue, it does not spend time
and money hiring someone to tell it about the problem, discussing the issues
with the consultants, and taking safety measures in an effort to mitigate the
hazard.

Moreover, once the operator received the KOA report
from Leow, it did not attempt to bury or hide the evidence in the report. Such
an act would be in line with the “conscious or deliberate indifference” of a
“bad actor” that Congress intended to address with this statute. Rather,
Engineering Manager Scamehorn shared the report with the other section managers
at the mine, i.e., Zimmer and Peterson. Tr. 327. Scamehorn then followed up
with Leow to get clarification on some of the report’s recommendations. Tr.
326-30. The report recommended prohibiting the use of heavy equipment on the
center walkway, and there is no evidence that the operator had failed to adhere
to this. S. Ex. 12. The report also recommended restricting access to the outer
walkways and there is no evidence rebutting the operator’s testimony that it
did, in fact, tell miners to avoid using the outer walkways and to use fall
protection when they were required to perform work on the outer walkway. [18] Id .

The operator conducted numerous safety
meetings with its miners in which the condition of the walkways was discussed. Tr.
109, 118, 123, 208, 428. In doing belt maintenance, typically replacing
rollers, the miners did not traverse the outer walkway. They climbed over the stopped
conveyor and, then while wearing fall protection, did the necessary work at a
stationary position. [19]

All of these facts in the record were reviewed by
the Judge, and they support the finding that the operator did not “consciously
or deliberately disregard” the risk of death or serious bodily injury posed by
miners falling through the walkway floor, nor did it deliberately shirk
responsibility to work to eliminate the hazard. 41
FMSHRC at 68. S uch actions did not vitiate the violation but they did
show a substantial concern for safety. Essentially, the Judge found that
Northshore did not “flout” the Mine Act. Substantial evidence supports the
Judge’s conclusion that the Secretary failed to demonstrate “recklessness” for
purposes of proving a “flagrant” violation, under section 110(b)(2).

4. Substantial
   Evidence Does Not Support the Finding that the Violation Was Reasonably
   Expected to Cause Death or Serious Bodily Injury.

Th e Judge described three
types of hazards: (1) falling near a moving conveyor,      (2) material falling
to the ground below and causing uncertain footing, and (3) the danger of the
walkway giving away. 41 FMSHRC at 61. Separately, the Judge found the condition
of the walkway was the primary cause of the dislocation, and Superfesky testified
that a fall, even with the use of fall protection, created a risk of a loss of
a limb or other serious injury. Tr. 262.

For purposes of the flagrant violation, therefore, the
first relevant question is whether the violation was reasonably expected to
result in any of the hazards described by the Judge. Here, the most serious
hazard suggested by the Secretary was the possibility of a miner falling
through a hole in the walkway. 41 FMSHRC at 62.

Although the Judge found hazards included slipping,
tripping, and falling on the walkway, the danger of falling through a hole in
the walkway is by far the most serious. A fundamental issue in the flagrant
analysis in this case, therefore, must be whether Northshore should have
reasonably expected that the violation would result in a hole in the walkway
through which a miner would be reasonably expected to fall. We must also
consider whether the violation created an expectation of the other identified
hazards of slipping, tripping, and falling within the walkway structure.

If either of those questions is answered
affirmatively, the Judge needed to resolve separately whether the occurrence of
the hazard would be reasonably expected to result in death or serious bodily
injury. Also, recognizing Northshore required the use of fall protection, there
is the additional issue of whether that requirement for fall protection would
mitigate a reasonable expectation of serious bodily injury.

a.
 There is no substantial evidence proving the surface condition of the walkway
caused, or was reasonably expected to cause, the failure of the diagonal beam
and dislocation of the gallery walkway or any hazardous event such as falling
through a hole.

The Judge
accepted Superfesky’s testimony that the surface condition of the walkway was
the primary reason for the dislocation of the walkway. 41 FMSHRC at 58. However, no
substantial analysis or consideration was given to the dislocation cause or whether
it was expected , as required by the statute. To the contrary, there is substantial
evidence that there was no expectation of dislocation based upon the observable
surface condition of the walkway. [20]

Superfesky erred in many important respects. He did
not take any samples of the material or conduct any scientific analysis of the
cause of the steel beam failure and the resultant dislocation of the walkway. He
spent his entire physical investigation below the walkway, never examining the
scene of the dislocation from above. His testimony suggests he erroneously
thought the perlite panels were the primary support for the walkway(s) and his
testimony regarding debonding applied to the perlite panels rather than the
reinforced concrete layer.

Tr. 261, 144. In fact, the evidence shows that the
perlite panels were primarily only forms for placement of the concrete walkway.
Tr. 399, 532-34, 549.

Superfesky did not know the concrete was reinforced
with a steel mesh and he did not know the wire mesh was attached to the steel. Tr.
288-89. Very significantly, wire mesh covered the opening near where King was
standing at the time of the beam failure. Tr. 280-81,

S. Ex. 7 at 23 (picture 921).

Superfesky did not calculate the force of the event
when the diagonal beam failed.    Tr. 299. The fracture of the beam resulted
from the unusual weight of the large volume of taconite pellets being
progressively washed down the walkway. Tr. 530-532. Thus, spalled or cracked
concrete or delamination did not initiate the beam failure and the resultant
dislocation of the walkway.

Most importantly, Superfesky agreed with Northshore’s
experts that the immediate cause of the dislocation was the break from the
unknown crack covered by the gusset plate that was part of the steel structure
rather than the walkway. Tr. 284-289. Having conceded that the break in the steel
structure initiated the dislocation, Superfesky simply asserted, without any
persuasive explanation, that if the walkway had been in good condition, it
would not have dislocated. Basically, he accepted that the breaking of the
rivets would have applied a great torsion upon the walkway that was heavily
laden with taconite and mud, and that the rotation resulting from the broken
beam would have moved the walkway.

Superfesky continued to assert, without any support,
that the movement would have been insufficient to cause the dislocation. He did
not explain why or how the concrete slab would have stayed intact if a failure
of the walkway concrete slab caused the dislocation. Indeed, he was not even
aware that large portions of the slab remained intact. The sustained strength
of the slab undercuts a notion that the walkway itself caused the dislocation. Tr.
399, 532-33. Superfesky’s testimony, therefore, remains unsupported,
unexplained, and does not support a finding that Northshore should have
expected a dislocation of the walkway.  

On the other hand, Northshore’s experts,
metallurgist Osmundson, who worked with an outside laboratory testing the
steel, and civil engineer Franseen, provided detailed testimony and test
evidence of the causes of the dislocation. They testified without challenge
that due to the weight of the taconite pellets, the steel structure holding the
steel support failed and ap pli ed very
significant torsion force to the structure including the walkway. Tr. 505, 528-32.
The walkway simply could not withstand that tremendous force and, consequently,
rivets snapped causing an outward movement of the walkway. Tr. 283-84, 535.

Based
upon his experience and testing of the steel support of the structure, Osmundson
testified that “steel is what holds everything up” (Tr. 498) and that the
condition of the walkway had nothing to do with the collapse. Tr. 505-506. The
reports by Northshore’s expert civil engineer and metallurgist demonstrate that
the walkway did not fail but, in fact, remained substantially intact despite
the force of the deflection of the steel superstructure. [21]

In
summary, all of the expert testimony demonstrates that substantial evidence
does not support the contention that the condition of the walkway caused the
dislocation. The Secretary did not present any evidence that Northshore should
have expected a dislocation, in any event.  Thus, the Secretary’s case,
premised upon his conjecture of the dislocation, fails at the first stage of
analysis. The Secretary did not prove that the walkway was reasonably expected
to dislocate.

b.
 The evidence does not show that the condition of the walkway, taking into account
fall protection, was reasonably expected to cause reasonably serious bodily
injuries to miners.

The failure of Superfesky’s testimony
to support an expectation of a dislocation, or failure of the walkway due to
its condition, does not mean that there was no expectation of the hazards of a
slip, trip, or fall. Given the condition of the walkway as described in the KOA
report, there is ample evidence that persons walking on the walkway reasonably
could be expected to slip, trip, or fall. Therefore, the facts demonstrate the
Secretary proved a reasonable expectation of the occurrence of a slipping
hazard by the condition of the walkway. Indeed, Northshore must agree with this
premise lest it would not have instituted fall protection.

We must turn, therefore, to the
second step of analysis: Whether such hazards in the context of the totality of
the circumstances created a reasonable expectation of serious bodily injury. An
expectation that the miners would slip or trip while not wearing fall
protection responds to the element of showing a reasonable expectation of the
occurrence of the hazard due to the condition of the walkway. It does not
resolve the next step, however, namely, of whether a reasonable expectation
exists that a slip, trip, or fall on the walkway would result in death or a
serious bodily injury.

In using the term serious bodily injuries, Congress selected
terminology that appears frequently in federal law. Appearing often in
the criminal code at Title 18 as well as elsewhere in throughout the Code, the
term “serious bodily injury” is typically defined as an injury: i) involving
extreme physical pain; (ii) involving substantial risk of death; (iii) involving
protracted loss or impairment of the function of a bodily member, organ, or
mental faculty; or (iv) requiring medical intervention such as surgery,
hospitalization, or physical rehabilitation. See 18 USC 1365(h)(2); 42
USC 1397j; 42 USC 5928. However, the same or similar definition appears
elsewhere in the Code. 42 U.S.C. § 1397j; 42 U.S.C. § 6928(f)(6).

With regard for the expectation of
slipping or falling, the Judge principally relied upon evidence that the
contract employees did not always use the fall protection but would unhook to
move from station to station along the walkway and to return up the walkway. Testimony
supports that finding. Tr. 51, 54-55, 57, 109-10, 116-117, 119-21, 194-96. We
must accept, therefore, that Northshore should have reasonably expected that
miners would not uniformly use the fall protection. Given that presumption, the
final question is whether Northshore should have reasonably expected a miner
would slip without wearing fall protection and suffer serious bodily injuries.

No witness presented any testimony on the likely
nature of fall injuries under these conditions. Superfesky testified that very
serious injuries such as the loss of a limb may result from use of fall
protection; however, that testimony was given in the context of a fall from or
through the walkway. Tr. 262-63. As noted supra , wire mesh covered the
opening near where King was standing at the time of the beam failure. Tr.
280-81; S. Ex. 7 at 23 (picture 921). Moreover, King testified that he was
wearing fall protection when he saw the hole immediately in front of him with
wire mesh intact in the floor. Tr. 59. As such, the Secretary’s proffered
evidence is not given in terms of an expectation but rather, implicitly, in
terms of possibilities. Given MSHA’s reliance upon fall protection throughout
the mandatory standards, it would be difficult to find that MSHA “expects” a
miner using fall protection to lose his life or a limb.

Again, crucial to this analysis is an evidentiary
finding of the expectation of death or serious bodily injury. The Judge does
not find or suggest this type of consequence from a fall on the surface of the
walkway. Moreover, the Judge did not find that a miner wearing fall protection
would suffer a serious bodily injury from slipping or tripping on the walkway. Accordingly,
there is virtually no evidence as to the type or severity of expected injuries
from falling onto the taconite pellets and mud in the walkway.

The Judge accepted MSHA’s testimony that use of fall
protection could result in the loss of a limb. However, that testimony occurs
in the context of fall through a hole and, in any event, is not framed in any
terms as being a likely result of use of fall protection. If such injuries were
“expected” to result from use of fall protection, it would cast a pall on
MSHA’s ubiquitous allowance of fall protection throughout the mandatory safety
standards. As with the issue of the reasonable expectation of a dislocation of
the walkway, the Judge merely assumed any injury resulting from occurrence of
the hazard of slipping or falling in the walkway would be death or serious
bodily injury.

We do not diminish the hazard of
slipping or falling on a rough, uneven walkway. Further, as seen below, we do
not condone Northshore’s failure to repair the walkway for over a year. However,
the Secretary must prove each and every element of a violation. When the
Secretary seeks to enforce a flagrant violation, it cannot be by conjecture. The
Secretary must prove by a preponderance of the evidence that the posited hazard
is expected to occur and that the occurrence of such hazard is expected to
cause serious bodily injury. Here, it appears the Secretary essentially relied
upon the occurrence of dislocation as homemade res ipsa loquitur for the
expectation of hazards and the expectation of serious bodily injury. The
failure to produce evidence of the types of injuries expected to result from a
slip or fall on the walkway must result in a dismissal of the flagrant charge.

In
summary, Congress’ use of the terms “reasonably expected” and “serious bodily
injury” indicate Congress clearly and plainly required an expectation
for the occurrence of a hazard and an expectation that the occurrence
would result in death or serious bodily injury. The Secretary did not present
evidence of such an expectation and the Judge found, on the basis of
substantial evidence, that the operator did not disregard an expectation that a
slip on the walkway would cause death or a serious bodily injury. Thus, the
Judge found, on the basis of substantial evidence, that the Secretary failed to
provide sufficient evidence to prove proof that this case met the “reasonably
expected to cause” requirement for a flagrant violation.

5. The Dissent Misconstrues the “Flagrant” Analysis

Arguing against the
Judge’s substantial evidence-based finding that the operator’s actions did not
meet the standard of recklessness for a flagrant violation, our dissenting
colleague sets up a classic straw man by asserting that we have made
“intention” an element of a flagrant violation. That is not our holding. We
have accepted the Judge’s analysis that the Secretary did not show the operator
believed there was reasonable expectation of death or serious bodily
injury from continuing work while wearing safety lines.  Thus, the Judge found
the operator did not consciously – that is, recklessly – disregard a danger of
an expectation of death or serious bodily injury. That standard is, of
course, significantly higher than the negligence standard of reasonable
likelihood for non-flagrant penalties. Consequently,
our finding in this case aligns fully with the graduated enforcement scheme of
the Mine Act as established by Congress. [22]

We
accept the Judge’s conclusion as supported by substantial evidence. As noted,
our colleague, however, goes on, at slip op. at 40-42, and elsewhere, to claim
that our interpretation construes the flagrant provision to apply only to
deliberate attempts to cause death or serious bodily injury. That is certainly
neither our holding nor suggested by our holding. Our holding is that the Judge
cited substantial evidence to support the conclusion that the operator did not
consciously disregard a reasonable expectation that miners wearing safety belts
would be killed or suffer serious bodily injury – the plain statutory
requirement for a flagrant violation.

Indeed, rather
than examining the elements of a flagrant violation in terms of section
110(b)(2), our dissenting colleague plucks the term “reckless disregard” from
cases where defendants are charged for criminal violations of the Act
under section 110(d), 30 U.S.C. § 820(d), addressing the commission of “willful”
acts. Slip op. at 39-40. Our colleague argues that our interpretation of the
flagrant provision will result in a higher evidentiary standard for flagrant
violations than for criminal violations. Id. That is clearly incorrect. A
plain reading of section 110(d) demonstrates that it is clearly a criminal
statute aimed at punishment rather than deterrence and, therefore, requires
proof beyond a reasonable doubt . That criminal provision of the Mine Act is
completely different from section 110(b)(2) which requires only proof by a
preponderance of the evidence. Thus, the evidentiary standard for a criminal
violation far exceeds that for a section 110(b)(2) flagrant violation.

Inclusion of reckless disregard
within the scope of willfulness in criminal statutes aimed at persistent
violations of federal law and repeated warning does not suggest the obverse – that
“reckless” in a civil penalty statute requires an intent or willfulness to harm
– and we do not make such a finding. As we hold, the term “reckless” in section
110(b) goes to an expectation of death or serious
bodily injury and a conscious disregard of that expectation. The
Judge’s finding is supported by the evidence and must be affirmed.

D. Substantial
Evidence Supports the Judge’s Finding that the Operator’s Violation of 30
C.F.R. § 56.11002 Resulted From an Unwarrantable Failure and Reckless
Disregard.

1. The
   Record Supports the Judge’s Finding of Unwarrantable Failure.

Again, we
reiterate
that the Mine Act’s overarching enforcement scheme provides “increasingly
severe sanctions for increasingly serious violations or operator behavior” as
noted in Emery Mining , 9 FMSHRC at 2000, and Cement Div., Nat'l
Gypsum Co ., 3 FMSHRC at 828. The unwarrantable failure terminology is
taken from section 104(d) of the Act, 30 U.S.C.

§
814(d). The Commission has explained that unwarrantable failure is “aggravated
conduct constituting more than ordinary negligence. [It] is characterized by
such conduct as reckless disregard, intentional misconduct, indifference, or a
serious lack of reasonable care.” Consolidation Coal Co ., 22 FMSHRC 340,
353 (Mar. 2007) (“Consol”) (citing Emery , 9 FMSHRC at
2002) (internal quotations omitted). It is a separate and distinct charge from the
flagrant provision in the Mine Act which expressly levies the most severe
sanctions for especially wrongful misconduct.

In
determining whether a violation is an unwarrantable failure, the Commission has
instructed its Judges to consider all of the relevant facts and circumstances
in the case and to determine whether there are any aggravating or mitigating
factors. Id.
Aggravating
factors to be considered include the length of time that the violation has
existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts were necessary for compliance, the
operator’s efforts in abating the violative condition, whether the violation
was obvious or posed a high degree of danger, and the operator’s knowledge of
the existence of the violation. IO Coal , 31 FMSHRC at
1350-51; see
also Consol ,
22 FMSHRC at 353.

Substantial
evidence supports the Judge’s finding that the clear weight of such analysis,
here, demonstrates an unwarrantable failure:

·       
The
violation had existed “at least from the time in June 2015 when the KOA report
had been completed” until “the time of the accident in September 2016.” 41
FMSHRC at 64; Tr. 364-65; S. Ex. 12.

·       
The
physical extent of the violation “included the entire 300 feet on the east
outer walkway, as well as the west outer walkway.” 41 FMSHRC at 64; Tr. 239.

·       
The
KOA report clearly notified Northshore of the insufficiencies of the walkway
long before the dislocation. Thus, Northshore “was put on notice of the
defective walkway through . . . KOA engineering report in June 2015.” 41 FMSHRC
at 64-65; Tr. 61, 336-37; 364-65; S. Exs. 12, 18.

·       
The
evidence does not reveal any attempt by the operator to repair the surface of
the walkway. Rather than dealing with the unsatisfactory condition of the
walkway, the operator dealt with danger. The Judge found “no effort was made to
address the deteriorating walkway itself” because “use of fall protection . . .
does not correct the condition.” 41 FMSHRC at 65; Tr. 147, 149-50.

·       
Regarding
whether the violation posed a high degree of danger, the Judge found the
violation created the hazard of “falling through the walkway,” which is a
“serious safety hazard and thus a high degree of danger.” 41 FMSHRC at 65; Tr.

202. As noted supra, there is no substantial evidence supporting a
     conclusion that the condition of the walkway caused the event on the day of
     dislocation or that there was a danger of falling through the walkway due to
     the existence of the wire mesh. The danger of falling in a narrow walkway while
     walking on taconite, on the other hand, cannot be discounted.

·       
The
deficiencies in the walkway were obvious. Also, the expert consultants provided
a written report explaining the deficiencies. 41 FMSHRC at 66; Tr. 61, 336-37; S.
Ex. 12.

·       
Finally,
regarding the operator’s knowledge of the violation, once again, “the
engineering report made it clear that the walkway was not safe for use.” 41
FMSHRC at 66; Tr. 364-65, S. Ex. 12.

Based
upon this analysis, substantial evidence supports the Judge’s finding of an
unwarrantable failure.

2. The Record
   Supports the Judge’s Finding of Reckless Disregard.

First, we must again draw a
distinction between the analysis for “reckless disregard” and the distinct
analysis noted supra regarding “reckless failure” as it applies to a
flagrant charge. They are two distinct analyses.

C onscious
or deliberate action or inaction that consciously disregards or shows no
concern for danger is a uniform element of reckless disregard. [23]
A fter notice and comment rulemaking, MSHA
defined “reckless disregard” as occurring when an “operator display[s] conduct
which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).
Notably, therefore, the Secretary’s definition of reckless disregard, for which
we show respect but not total obeisance, is similar to stating that an operator
engages in reckless disregard when it consciously disregards the danger of its
actions.   

Most
importantly, we have applied the conscious disregard of serious danger as the
touchstone of the phrase “reckless disregard” in our cases. We stressed the
importance of an operator’s intentional disregard as the key element of “reckless
disregard.” We have found reckless disregard exists in “ situations
where an operator knows or has reason to know of facts which create a high
degree of risk of physical harm, and deliberately proceeds to act, or fails to
act, in conscious disregard of, or indifference to, that risk.” Lehigh  Anthracite Coal, LLC ,
40 FMSHRC 273, 280 (Apr. 2018) .

It
is clear that the outer walkway was not maintained in accordance with the
requirement of section 56.11002 that “elevated walkways . . . shall be of substantial
construction . . . and maintained in good condition.” 30 C.F.R. § 56.11002. Of
particular importance in this case, Northshore permitted the violation and,
hence, hazards to exist for an extended period of time.

Northshore
received the KOA report in June 2015. That report identified many problems with
the surface of the walkway and stated that the walkways were “not safe for
personnel to be using until a repair has been completed.” S. Ex. 12 at 2. Nonetheless,
although taking actions to mitigate danger, Northshore did not take any
action to abate the violation prior to the accident in September 2016. Therefore,
even as we accept the Judge’s finding that the Northshore exercised a degree of
care, did not ignore the violative conditions of the walkway, and sought to
provide protection, such conduct does not mitigate allowing a violation of a
mandatory of which Northshore was specifically aware to continue unabated for
fifteen months.

We
reject Northshore’s argument that the Judge erred by relying solely on the KOA
report “despite its ambiguity” and Leow’s “clarifying” statements made at
hearing. Resp. Br. at 16-17. Northshore claims that its actions “must be viewed
in light of what they were told by . . . Leow,” namely, that a recommendation
for “restricted” access was not an outright prohibition on access, and that the
Judge erred by discrediting Leow’s testimony. Id . We disagree. The issue
is whether substantial evidence supports the Judge’s conclusion that the KOA
report put the operator on notice that the outer walkways were unsafe and
therefore a serious violation of a mandatory safety standard.

We
find that it does. The report plainly concluded that the walkways “ are not
safe for personnel to be using until a repair has been completed .” S.
Ex. 12 at 2 (emphasis added). [24]
While Northshore deemed fall protection adequate protection against the hazards
it believed arose from the condition of the walkway, it did not address the
underlying violation. Therefore, Northshore disregarded the existence of the
violation to the extent that it failed to deal with the violation in a remotely
timely manner.

Thus,
in this case, we accept the Judge’s finding of reckless disregard with respect
to not abating the violation. [25]
Northshore’s failure to deal with the walkway violation for fifteen months
permits the Judge’s finding of reckless disregard of the underlying violation
to stand affirmed.

IV.

Conclusion

For
the reasons stated above, we affirm the Judge’s findings of “reckless
disregard” and unwarrantable failure for the violations of 30 C.F.R. § 56.11002
and 30 C.F.R. § 56.20011. W e also affirm the Judge’s findings that the
violation was not flagrant in violation of section 110(b)(2). We reverse the
Judge’s assessments of the individual penalties against Zimmer and Peterson
under section 110(c) of the Act and vacate the assessments.

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/ William I.
Althen

William
I. Althen, Commissioner

Commissioner
Traynor, concurring in part and dissenting in part:

I.

Introduction

When
Northshore Mining Company managers became aware that a conveyor walkway 50 feet
off the ground had deteriorated, they ordered an engineering report to assess
the situation. They then proceeded to ignore the report’s recommendations and
continued to assign miners to work on the walkway. Subsequently, when a miner
was working on the walkway it collapsed, and he was hit with falling debris. The
miner suffered injuries but survived.

I
join the majority in affirming the Judge’s conclusion that both violations 1
were due to negligence that amounted to a “reckless disregard” and that
Northshore’s actions were an “unwarrantable failure” to comply with the safety
standard. 2 I dissent from my colleague’s conclusion
that Northshore’s failure to maintain the walkway in good condition in
violation of section 56.11002 was not “flagrant” within the meaning of section
110(b)(2).

More
specifically, as I will explain, I dissent from my colleagues’ interpretation of
the “reckless flagrant” provision in section 110(b)(2) as applied in this case.
Specifically, the Secretary sought review of the Judge’s interpretation of the
term “reckless” in section 110(b)(2). My colleagues would require the Secretary
to produce evidence of the mental state that motivated the operator’s failure
to take reasonable steps to maintain the walkway in safe condition –
specifically, evidence that the operator’s failure to eliminate the violation
was done with a “conscious” or “deliberate” expectation of death or bodily
injury, rather than simply a “reckless” disregard for such danger. My
colleagues thus ignore the plain meaning of section 110(b)(2); Congress could
not have intended that the increased civil penalties for flagrant violations 3
are only available in cases involving conduct so bad it would amount to
homicide.

Even
if the language of section 110 establishing flagrant violations were not
clearly directed at the “reckless” (not intentional) failure to eliminate
dangerous violations, the Secretary’s reasonable interpretation of ambiguous
statutory language is entitled to deference. I would thus reverse the
Judge on this issue, concluding that the Secretary establishes a “reckless
flagrant” violation with proof the operator acted with reckless disregard for
the danger caused by its failure to eliminate dangerous violations.

I
also dissent from my colleagues’ determination that the operator’s agents were
not individually liable under section 110(c), as I find that the individual
supervisors knowingly carried out the violation.

II.

The Judge’s Ruling That the Violation
was Not Flagrant Should be Reversed.

The
flagrant provision of the Mine Act was added in 2006, after fatal accidents at
three mines. S. Rep. No. 109-365, at 2 (2006). Section 8(a) of the Mine
Improvement and New Emergency Response (“MINER”) Act amended the penalty
section of the Mine Act to create a “flagrant” violation designation and to
provide for the assessment of an enhanced penalty to deter repeated or reckless
failures to eliminate known dangerous violations. Pub. L. No. 109-236, 120
Stat. 498, 500 (2006). In the MINER Act, Congress defined 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.

30
U.S.C. § 820(b)(2) (emphases supplied).

We
have had occasion to interpret and apply the MINER Act’s flagrant provision in
a number of cases issued subsequent to the passage of the MINER Act. In our
most recent decision resolving such a case, we held that:

for a flagrant
violation, it must be established that: (1) there was a condition that
constituted a violation of a mandatory health or safety standard, (2) the
violation was “known” by the operator; (3) the violation either (a)
substantially caused death or serious bodily injury, or (b) reasonably could
have been expected to cause death or serious bodily injury; (4) there was a
failure on the part of the operator to make reasonable efforts to eliminate the
violation; and (5) that failure was either “reckless” or “repeated.”

Am.
Coal Co. ,
38 FMSHRC 2062, 2066-67 (Aug. 2016). That case involved a “repeated flagrant”
allegation – that is, one involving an operator’s “repeated” failure to make
reasonable efforts to eliminate the violation. Here, as a matter of first
impression, we are not dealing with the allegation of a repeated failure. Rather,
we are reviewing the Judge’s application of our American Coal test in
the context of the Secretary’s allegation that such failure was “reckless.”

In the decision on review, “[t]he Judge found all of
the [ American Coal ] criteria for a flagrant violation existed except
Northshore’s conduct was not ‘reckless’ within the meaning of Section
110(b)(2).” Slip op. at 9. The Secretary’s Petition for Discretionary Review
listed four assignments of error for appeal, including that:

(1)   The ALJ erred by requiring a
higher negligence showing to establish the “reckless failure” component of a
flagrant violation than is required to establish reckless disregard and
unwarrantable failure.

(2)   In evaluating the operator’s
conduct under a “conscious[] or deliberate[] disregard” standard, the ALJ
impermissibly imposed a scienter requirement for reckless flagrant violations.

(3)   The ALJ erred by determining
that the operator’s fall protection policy mitigated a reckless failure to
eliminate the walkway violation.

(4)   Even applying the erroneous
legal standard the ALJ used, substantial evidence does not support the ALJ’s
finding that the violation was not a “reckless” flagrant.

S.
PDR at 1-2. The operator’s Petition for Discretionary Review did not reference
the Judge’s reckless flagrant decision at all. See generally Resp. PDR. Thus,
the Judge’s rulings as to elements (1) to (4) of our American Coal test
– including the operator’s knowledge and whether the violation reasonably could
have been expected to cause death or serious bodily injury – are not at issue
on this appeal. 4 The precise legal question at issue on
appeal concerns only element (5) and whether a determination that a “reckless
flagrant” violation is the product of a “reckless . . . failure to make
reasonable efforts to eliminate a known violation” requires proof of an intent
to cause harm, not simply reckless conduct. 30 U.S.C. § 820(b)(2).

A.     Whether the term
“reckless” in the Mine Act’s flagrant provision requires proof of intentional
conduct or simply reckless conduct?

Our
task in this case is to determine whether the text, structure, purpose and
history of the “reckless flagrant” provision answers the specific question of
statutory interpretation at issue: whether to prove a “reckless flagrant”
violation, the Secretary must provide proof that the operator’s failure to
eliminate a known violation was done with conscious or deliberate disregard for
an expectation of death or bodily injury, not merely reckless disregard for
such danger.

In considering the question of statutory construction, our
first inquiry is “whether Congress has directly spoken to the precise question
at issue.” Chevron  U.S.A. Inc. v. Natural Res. Def.
Council, Inc. , 467 U.S. 837, 842 (1984);  Thunder
Basin Coal Co. , 18 FMSHRC 582, 584 (Apr. 1996). If a statute is
clear and unambiguous, effect must be given to its language. See  Chevron , 467 U.S.
at 842-43;  accord Local Union 1261, UMWA , 917 F.2d 42, 44 (D.C. Cir. 1990). In ascertaining the
meaning of the statute, courts determine whether Congress had an intention on
the specific question at issue (“ Chevron  I ” analysis). Chevron , 467 U.S. at 842-43 ;
Local Union 1261, UMWA v. FMSHRC , 917 F.2d
at 44;  Coal Emp’t Project v. Dole , 889 F.2d
1127, 1131 (D.C. Cir. 1989). When undertaking the Chevron I analysis, we
must not be too quick to find ambiguity, but must thoroughly “examine the
[statute’s] text, structure, purpose, and legislative history to determine if
the Congress has expressed its intent unambiguously.” U.S. Sugar Corp. v.
EPA , 830 F.3d 579, 605 (D.C. Cir. 2016) (per curiam), cert. denied ,
___ U.S., 137 S. Ct. 2296 (2017). “[I]n interpreting a statute, a court
‘must not be guided by a single sentence or member of a sentence, but look to
the provisions of the whole law, and to its object and policy.’” Czyzewski
v. Jevic Holding Corp. , ___ U.S., 137 S. Ct. 973, 985 (2017).

If after a thorough Chevron I analysis we
find the statute is truly ambiguous or silent on the precise question at issue,
deference is accorded to the interpretation of the agency charged with
administering the provision in question (in this case, the Secretary of Labor),
provided that the interpretation is reasonable ( Chevron II analysis). See  Chevron , 461  U.S. at 843-44;  Energy West Mining
Co. v. FMSHRC , 40 F.3d 457, 460 (D.C. Cir. 1994). As the D.C.
Circuit has stated:

In the statutory scheme of the Mine Act, “the Secretary's
litigating position before [the Commission] is as much an exercise of delegated
lawmaking powers as is the Secretary’s promulgation of a . . . health and
safety standard,” and so is also deserving of deference. Excel Mining ,
334 F.3d [1,] 6 [(D.C. Cir. 2003) (alterations in original) (quoting RAG
Cumberland Res. LP v. Fed. Mine Safety & Health Review Comm’n , 272 F.3d
590, 596 n. 9 (D.C. Cir. 2001)); cf. Martin v. Occupational Safety &
Health Review Comm’n , 499 U.S. 144, 156–57, 111 S.Ct. 1171, 113 L.Ed.2d 117
(1991) (explaining that the OSH Act’s analogous allocation of responsibilities
requires according Chevron deference to the Secretary's litigating
positions).

Am. Coal Co. v. FMSHRC , 796 F.3d 18, 24 (D.C. Cir. 2015); see also Pattison Sand
Co. v. FMSHRC , 688 F.3d 507, 512 (8th Cir. 2012) (in considering the
Secretary’s litigation interpretation of section 103(k) of the Mine Act, Court
states that the Secretary’s interpretations before the Commission are entitled
to Chevron deference if reasonable).

As explained below, an examination of the text,
structure, purpose, and legislative history of the flagrant provision provides
a clear and unambiguous answer to the precise question of whether, as the
majority contends, establishing a “reckless flagrant” violation requires proof
that an operator’s failure to eliminate a known safety violation was done with
a deliberate purpose or conscious understanding that such failure is expected
to cause serious injury or death; or, whether as the Secretary contends,
Congress’s use of the word “reckless” plainly indicates the statute is directed
toward penalizing the reckless failure to eliminate known dangerous
violations, even where no proof of the operator’s conscious expectation of
serious injury or death is available.

Thus, I would resolve the case at the first step
– Chevron I . Even if I were to find the statutory language is ambiguous
with respect to this question, which it is not, I would defer to the
Secretary’s reasonable interpretation of the language ( Chevron II ). I
would find the Secretary’s interpretation – the “reckless flagrant” category
does not require the Secretary to prove the operator’s failure to eliminate a
known violation was done with a conscious expectation of death or serious
injury, only that it was objectively reckless – to be eminently and obviously
reasonable and therefore entitled to deference.

1. Chevron I Analysis – The Mine Act clearly requires proof of “reckless”
   failure to eliminate a known dangerous violation, not proof of a deliberate or
   conscious expectation of serious injury or death.

The Chevron I analysis of the “reckless
flagrant” provision to answer the specific question of whether it requires evidence
of intentional conduct begins with the “text, structure, purpose, and
legislative history to determine if the Congress has expressed its intent
unambiguously.” U.S. Sugar Corp. , 830 F.3d at 605. The text, structure,
purpose, and legislative history of the Mine Act provision at section 110(b)(2)
indicates that proof of negligent conduct rising to the level of recklessness
is necessary to deem a violation a “reckless flagrant,” but not proof that such
failure was the product of the operator’s conscious understanding or deliberate
purpose that such failure is expected to cause serious injury or death.

a.     
Chevron I – Text

In the text of the “reckless flagrant” provision,
we find a clear indication of Congress’s intent: its choice of the word
“reckless” in the statutory text to refer to a “reckless . . . failure,” 30 U.S.C. §
820(b)(2), rather than any of the other adjectives commonly
used to require proof of intent, i.e. , conscious, deliberate, knowing,
intentional, etc. 5

The majority overlooks a key distinction between
the type of intentional conduct described by words such as “conscious” or
“deliberate” and the type of unintentional, though highly negligent conduct
described as “reckless.” Simply put, there is a fundamental difference between
conduct that is intentional and reckless wrongdoing. An intentional wrong is
designed to inflict harm. See Restatement (Second) of Torts § 8A (1965)
(finding “intent” where “the actor desires to cause consequences of his act, or
that he believes that the consequences are substantially certain to result from
it.”). A reckless wrong is not. “While an act to be reckless must be intended
by the actor, the actor does not intend to cause the harm which results from
it.” Id ., § 500 cmt. f, at 590. In reaching a contrary conclusion – that
a “reckless failure” involves a conscious or deliberate (intentional)
expectation of serious harm to miners – the majority is confused.

The majority blurs the distinction between
recklessness and intentional wrongdoing by overlooking the difference between
the mens rea for failing to eliminate a violation and the mens rea
for causing harm with that failure. The majority claims that a “reckless
failure” to take reasonable steps to eliminate a dangerous violation demands
proof that the person who so fails has the deliberate purpose or conscious
understanding that such failure is expected to cause serious injury or death,
as compared with proof that an objectively reasonable miner understands that
there is a risk it might do so (the proper standard for recklessness). In the
language of mens rea , the majority is saying that a “reckless flagrant”
is really an intentional violation.

When an operator fails to eliminate a violation
with a “deliberate” purpose “conscious” that such failure is expected to cause
serious injury or death, he intentionally produces a result. When a person acts
consciously or deliberately – that is, with an expectation that certain
consequences will result – the law imputes to that person the intent to cause
those consequences. As the expectation of such consequences becomes objectively
less likely, “the actor’s conduct loses the character of intent, and becomes
mere recklessness.” Restatement (Second) of Torts § 8A cmt. b, at 15. And the
distinction between intentional and reckless conduct is key for defining a
“reckless failure” in the context of a flagrant violation. When an operator
fails to take steps to eliminate a known violation with a conscious
understanding of an expectation of serious injury or death, he intends to cause
harm. In the case of reckless wrongdoing, however, the injury the actor has
caused (or could be expected to cause) is a byproduct of a failure to take
steps to eliminate a known violation that a reasonable miner could reasonably
expect to cause serious bodily injury or death.

At the time Congress passed the MINER Act in June
of 2006, t he
Restatement (Second) of Torts, at Section 502 (emphases supplied), defined
“reckless disregard of safety” as follows: “an actor’s conduct is in reckless
disregard of the safety of another if he does an act or intentionally fails to
do an act which it is his duty to the other to do, knowing or having reason
to know of facts which would lead a reasonable man to realize , not
only that his conduct creates an unreasonable risk of physical harm to another,
but also that such risk is substantially greater than that which is necessary
to make his conduct negligent.” 6 At
Section 500, the comments to the Second Restatement state “recklessness” occurs
when an “actor has such knowledge, or reason to know, of the facts, but does
not realize or appreciate the high degree of risk involved, although a
reasonable man in his position would do so .” Restatement (Second) of Torts
§ 500 cmt. a (emphasis supplied). Under both formulations, the actor is
reckless if a reasonable person would realize the risk of harm, and not, as the
majority contends, only where there is proof the actor had a “conscious” or
“deliberate” expectation of harm. 7

At the time Congress passed the MINER Act, the
Commission – consistent with the Restatement of Torts – had interpreted the
term “reckless” to apply to situations where the actor did not intend to cause
the harm which could result from the act. See, e.g., Spartan Mining Co. ,
30 FMSHRC 699, 719-23 (Aug. 2008) (where mine fan stopped and foreman directed
miners to attempt to repair damaged cable rather than withdraw from working
section, Judge properly characterized foreman’s action as reckless disregard); RAG
Cumberland Res. LP , 23 FMSHRC 1241, 1261 (Nov. 2001) (ALJ) (finding
recklessness in operator's “failure to suspend production despite its knowledge
of” elevated methane.). This is the MINER Act definition of “reckless” that
informed Congress’s choice to use that word in the flagrant provision, rather
than words such as “intentionally,” “consciously,” or “deliberately.” But the
majority asserts, without authority or good reason, that Congress did not
intend this widely accepted use of the term “reckless” and rather intended a
strangely unique definition of “reckless” that covers only conduct undertaken
with a conscious or deliberate expectation of serious injury. In support of
their unusual notion, the majority cites no source of authority – no
restatement, no statute, no case – in which the term “reckless” is interpreted
to encompass an exclusively intentional (e.g. conscious or deliberate)
expectation of harm.

We
have held – consistent with the definition in both the Second and Third
Restatement of Torts – that recklessness will be found where “the level of negligence did not involve a conscious
intention to cause harm to a miner, [but] it did involve a conscious choice to
take actions with knowledge of facts that would disclose to a reasonable
foreman an unjustifiably high risk of potentially fatal injury to a miner.” Lehigh
Anthracite Coal, LLC , 40 FMSHRC 273, 283 (Apr. 2018) .

b.     
Chevron I – Structure

My
colleagues reference the Commission’s statement in American Coal that
“it is reasonable to expect that flagrant violations be of a type that was not
addressed in the original Mine Act [because] otherwise, Congress could have
simply increased the maximum amount at which a penalty can be assessed and
avoided creating a new statutory classification of violation.” Slip op. at 13
(quoting 35 FMSHRC 2061, 2069-70 (Aug. 2016) (footnote omitted)). Where I part
ways with them is on their insistence that to distinguish a flagrant violation
from other Mine Act provisions, we must apply a heretofore unheard of
interpretation of “recklessness” that excludes indifference. Slip op. at 9.

The
majority insists that the level of recklessness in a “reckless flagrant”
violation must be more egregious than that needed to prove an unwarrantable
failure violation. Id . at 13, 15. My colleagues mistakenly assume,
however, that the latter always requires a showing of “recklessness.” This is
incorrect. As the majority acknowledges, unwarrantable failure is “aggravated
conduct constituting more than ordinary negligence.” 8
Slip op. at 13. Although it may be proven by a showing of reckless disregard or
intentional misconduct, it may also be characterized by high negligence or a
“serious lack of reasonable care.” Id . at 24 (citing Consolidation
Coal Co., 22 FMHRC at 353 (Mar. 2007) (citing Emery Mining Corp ., 9
FMHRC at 2001-04)). In fact, the Commission has previously explicitly stated
that:

[a] finding of
unwarrantable failure does not require a finding of “reckless disregard.” The
Commission has also previously recognized that a finding of high negligence
suggests unwarrantable failure. In Eastern Associated Coal Corp., 13
FMSHRC 178, 187 (Feb. 1991), the Commission stated: “‘Highly negligent conduct
involves more than ordinary negligence and would appear, on its face, to
suggest an unwarrantable failure. Thus, if an operator has acted in a
highly negligent manner with respect to a violation, that suggests an
aggravated lack of care that is more than ordinary negligence.”

Eagle
Energy Inc .
23 FMSHRC 829 (Aug. 2001). Moreover, the Fourth Circuit has defined an
unwarrantable failure as “conduct that is ‘not justifiable’ or is
‘inexcusable.’” Consol Buchanan Mining Co. v. Sec’y of Labor, 841 F.3d
642, 654 (4th Cir. 2016) (citations omitted).

Thus
my colleagues’ insistence that the Secretary prove recklessness above and
beyond that required to demonstrate unwarrantable failure arises from their
faulty assumption that an unwarrantable failure violation must itself stem from
behavior deemed reckless. They have, in effect, bumped up the bar needed to
show unwarrantable failure, and by doing so have crafted an artificial
rationale for their view that the Secretary must demonstrate an extraordinarily
high mens rea – essentially proof the operator acted (or failed to act)
with a conscious expectation of serious bodily harm or death – in order to prevail.

As
the Secretary points out, there is no indication in the statute or legislative
history that Congress intended that the Secretary would need to demonstrate
operator conduct surpassing traditional concepts of recklessness under the Mine
Act in order to prove a “reckless flagrant” violation. Moreover, in crafting
the statutory definition of “flagrant,” Congress has in fact created a new
enforcement mechanism for a type of egregious violation not previously found in
the Mine Act. The “reckless flagrant” is not like any other category of
violation and when it is viewed in its entirety, it is clear that, even if the
term “reckless” is defined as it has historically been used in negligence and
unwarrantable failure determinations, something more than what is needed to
prove an unwarrantable failure is already required to prove a flagrant
violation. This includes all of the following:

A
level of danger (“death or serious bodily injury”) that, at a minimum, is
on a par that required to prove a significant and substantial violation ( See
American Coal ).

A
violation that substantially and proximately causes, or reasonably could
have been expected to cause, such a level of danger.

A
level of aggravated conduct well beyond “ordinary negligence.”

No
other provision of the Mine Act requires proof of all of the above elements. For
instance, in the analysis of whether a violation is significant and
substantial, the operator’s negligence is not relevant. Conversely,
unwarrantable failure violations do not necessarily include proof of the
violation’s dangerousness. As we explained in Manalapan Mining Co. , 35
FMSHRC 289, 294 (Feb. 2013):

We are troubled by the judge’s statement implying that there
is a “requisite high degree of danger” that must be present to support an
unwarrantable failure determination. [32 FMSHRC]  at 701. The degree of danger, although a relevant
factor, is not a threshold requirement for determining whether a violation is
unwarrantable. The level of danger is but one factor to be considered in evaluating
whether a violation is unwarrantable. . . . . The factor of dangerousness may
be so severe that, by itself, it warrants a finding of unwarrantable failure. However,
the converse of this proposition – that the absence of significant danger
precludes a finding of unwarrantable failure – is not true.

Thus, the majority’s assertion that the
Secretary’s interpretation is functionally identical to unwarrantable failure
language of section 104(d)(2), slip. op. at 13, 24, is simply wrong. My
colleagues’ claim that the Mine Act’s scheme of “ increasingly severe sanctions for
increasingly serious violations or operator behavior ” means something more than recklessness is needed to prove a
reckless flagrant, slip op. at 13, falls apart when the statutory language of a
flagrant violation is carefully considered. Upon examination, it becomes clear
that such a violation – even when the existing Mine Act definition of
“reckless” is applied – already requires more egregious conduct than that
needed to prove violations under other Mine Act provisions. Consequently, the
majority’s rationale for requiring a higher mens rea than recklessness
be established in order to prove a flagrant violation, based on a need to
distinguish such a violation from other Mine Act provisions, is baseless.

The
majority also includes in its new definition of “reckless” the test for
“reckless disregard” as set forth in Part 100 of the Secretary’s penalty
regulations. Slip op. at 27 (“conduct which exhibits the absence of the
slightest degree of care”). See 30 C.F.R. § 100.3 (d) Table X. Use of
this standard would make it almost impossible to prove that a violation is
flagrant, as any morsel of operator care would suffice to defeat a flagrant
charge. In Lehigh Anthracite , we explicitly refused to utilize MSHA’s
penalty regulations to define levels of negligence, stating:

In particular,
MSHA’s definition of ‘reckless disregard,’ which focuses on whether an operator
has exhibited the “slightest degree of care,” is either inappropriately subjective
or, if read literally, almost indistinguishable from intentional misconduct by
an operator’s agent. The definition is therefore not well suited to the
objective “reasonably prudent person” standard used by Commission Judges.

40
FMSHRC at 280.

The majority’s choice to require a
deliberate or conscious expectation of harm in order to demonstrate
recklessness would require a more culpable mens rea than the
state of mind required to prove criminal violations under the Mine Act. See
30 U.S.C. § 820(d) (“Any operator who willfully violates a mandatory health or
safety standard . . . shall, upon conviction, be punished by a fine of not more
than $250,000, or by imprisonment for not more than one year, or by both . . .
.”). When it passed the MINER Act, Congress was aware that the term “willfully”
in section 110(d) imposed criminal penalties on operators who acted “either in
intentional disobedience of the [safety] standard or in reckless
disregard of its requirements .” United States v. Blankenship ,
846 F.3d 663, 674 (4th Cir. 2017) (emphasis supplied) (discussing a mens rea
first applied in United States v. Jones , 735 F.2d 785 (4th Cir. 1984)); see
also United.States. v. Consolidation Coal Co ., 504 F.2d 1330, 1335 (6th
Cir. 1974) (criminal sanctions available for “either in intentional
disobedience of the [safety] standard or in reckless disregard of its
requirements.”).

“We assume that Congress is aware of
existing law when it passes legislation . . . .” Blankenship , 846 F.3d
at 674 (quoting Miles v. Apex Marine Corp ., 498 U.S. 19, 32 (1990)). A
conclusion that Congress intended to require for a “reckless flagrant” proof of
a mens rea more culpable than the reckless disregard required by section
110(d) for application of the harshest penalties available under the Act,
including high fines and imprisonment , does not comport with the notion
of “increasingly severe sanctions for increasingly serious violations or
operator behavior,” slip op. at 13, unless the “reckless flagrant” was intended
to be the most severe sanction available under the Act. There is no indication
it was. Even the most serious sanctions available under the amended Mine Act –
criminal fines of up to $250,000 and up to one year imprisonment – can be
obtained with proof of a mens rea below a deliberate, conscious intent
and equivalent to recklessness. 9 The most severe sanctions available
under the Mine Act punish reckless conduct, in addition to intentional conduct.
The reckless flagrant – which imposes less severe sanctions – is also intended to
reach reckless conduct that otherwise meets the elements of a flagrant
violation.

What
the majority proposes is limiting the “reckless flagrant” tool only to those
cases in which the Secretary would be able to demonstrate the type of
deliberate and intentional conduct the government could already – before the
Miner Act amendments – sanction with severe criminal penalties, including
prison. Requiring a mens rea above the level of criminality is obviously
not consistent with the clear purpose of the Miner Act amendments to provide
the Secretary with additional tools to impose greater civil penalties on the
especially problematic category of violation in which an operator shows either
a reckless or repeat failure to eliminate a known hazard that the reasonably
prudent miner (an objective, not subjective standard) would expect to result in
serious injury or death.

c.      
Chevron I - Purpose

The purpose of the Mine Act “is to increase the
health and safety of the mining industry's ‘most precious resource-the miner,’
by requiring inter alia that every operator and miner comply with federally
promulgated health and safety standards.” Richardson v. Sec’y of Labor ,
689 F.2d 632, 633 (6th Cir. 1982) (quoting 30 U.S.C. § 801). As discussed more
fully below in connection with the Act’s legislative history, the Act and its
amendments have, over time, consistently increased the penalties for various
types of violations of the Secretary’s safety and health regulations, including
penalties available for flagrant violations. With respect to the specific
question at issue, interpreting the term “reckless” as requiring proof of a
deliberate or conscious expectation of serious harm to miners will exclude from
increased civil penalties operators who are among the worst of the bad actors. Indeed,
such an interpretation limits application of the “reckless flagrant” section to
those whose acts were so notoriously homicidal they could be proved to have
acted or failed to act with a conscious or deliberate expectation of causing
serious harm or death.

The majority’s interpretation of a “reckless
failure” would shield from the enhanced penalties in the “reckless flagrant”
provision some of the most reckless operators – including those so habitually
reckless they would lack a “conscious or deliberate indifference” to the danger
of their failure to eliminate known violations that could be expected to cause
death or bodily injury.

For example, the majority’s interpretation does
not apply to the operator who fails to eliminate a known violation if the
Secretary cannot prove that he or she consciously realized or appreciated but
nevertheless disregarded the high degree of risk involved in the failure to
eliminate the violation, even if it is indisputable that a reasonable operator
in the same position would do so. In order that the operator’s failure to
eliminate a dangerous violation may be reckless, it should not be necessary
that the Secretary prove the operator recognized its own conduct was expected
to cause serious bodily injury or death. An operator’s inability to realize
such danger may be due to its own reckless character, or to the abnormally
favorable results of previous conduct of the same sort. Moreover, the absence
of evidence of such “conscious” or “deliberate” disregard for the danger would
often likely be due to the general inaccessibility of evidence of an operator’s
actual mental state at the time of the violation in question.

The Secretary would very rarely, if at all, be
able to meet the majority’s unreasonable demand for proof that the operator had
an actual subjective knowledge “the violation existed” and he or she “would
expect it to kill or cause serious bodily injury.” Slip op. at 17. It is
unreasonable to interpret a statute aimed at “reckless” actors to apply only to
the most cold-blooded killer. The word “reckless” indicates Congress’s intent
that it is enough that the operator has reason to know of circumstances which
would bring home the realization of the ordinary, reasonable operator the
dangerous character of a failure to take reasonable steps to eliminate
dangerous violations.

d.     
Chevron I – Legislative History

In both the legislative history to the 1977 Mine
Act and the 2006 MINER Act, Congress laid blame for then recent mining
tragedies, in part, on insufficiently low penalty amounts that had failed to
deter operators from violating MSHA’s mandatory health and safety standards.
Indeed, provisions that give the Secretary of Labor authority to propose higher
penalties to improve compliance with health and safety standards have been a
central feature of every piece of mine safety legislation in U.S. history.

The Senate Report accompanying the original 1977
Mine Act noted that under the predecessor legislation – the 1969 Coal Act -
“[t]he assessment and collection of civil penalties is intended to encourage a
state of constant compliance with the Act on the part of operators, but as
noted, the penalty system has been solely deficient in meeting this objective.”
S. Rep. No. 95-181, 95th Cong., 1st Sess., at 39 (1977) (“1977 Senate Report”).
The 1977 Senate report stated further that “[t]o be successful in the objective
of including effective and meaningful compliance, a penalty should be of an
amount which is sufficient to make it more economical for a[n] operator to comply
with the Act’s requirements than it is to pay the penalties assessed.”

Id . at 41. The
1977 Senate Report concluded that:

[i]n overseeing the enforcement of the Coal Act the Committee
has found that civil penalty assessments are generally too low, and when
combined with the difficulties being encountered in collection of assessed
penalties (to be discussed, infra), the effect of the current enforcement is to
eliminate to a considerable extent, the inducement to comply with the Act or
the standards, which was the intention of the civil penalty system.

Id .

In the aftermath of a series of tragic mining
accidents in 2006, Congress amended the Mine Act to, among other things, once
again increase penalties. A Senate Committee stated that:

[t]he purpose of the “Mine Improvement and New Emergency
Response [‘MINER’] Act of 2006,” S. 2803, is to further the goals set out in
the Mine Safety and Health Act of 1977 and to enhance worker safety in our
nation’s mines. The bill amends the 1977 Act “to... improve safety-related
procedures and protocols and increase enforcement and compliance to improve
mine safety.

S. Rep. No. 109-365, 109 th Cong., 2 nd
Sess. (2006). To that end, the legislation “increases both civil and criminal
penalties for violations of federal mining safety standards.” Id . President
George W. Bush signed the MINER Act into law on June 15, 2006, explaining that
“to ensure compliance with the law, the MINER Act will increase the maximum
penalty for flagrant violations of mine safety regulations nearly four-fold.” Presidential
Statement on Signing the Mine Improvement and New Emergency Response Act of
2006 ,
2006 U.S.C.C.A.N. S27 (June 15, 2006).

The clear trend toward giving the Secretary
greater authority to impose increasingly higher fines must inform the inquiry
at hand – whether Congress, in using the word “recklessly,” meant to make the
four fold increase in civil penalties for flagrant violations available only
when an operator acts with a deliberate expectation of harm but not where the
operator is recklessly indifferent to such harm. No sanction available under
the Mine Act had ever been interpreted to require proof that an operator had a
conscious or deliberate expectation of harm. A clear legislative intent to
increase penalties should inform our analysis of Congress’s use of the word
“reckless” in the flagrant provision and whether it reflects: (1) a legislative
intent to require the Secretary to take the unprecedented step of proving
intentional harm in order to assess the new increased flagrant penalties or (2)
a legislative intent to make assessment of such penalties available upon proof
of a reckless disregard for serious injury or death. Just as only the latter
interpretation squares with the plain meaning of the statutory text and its structure,
only the latter interpretation is consistent with the Congressional intent to
increase penalties assessed for particularly dangerous reckless and repeat
violations.

2. Chevron II Analysis - Even if the statute does not provide a clear
   answer to the question of whether proof is required of a conscious expectation
   of serious injury or death, the Secretary’s reasonable interpretation that it
   does not require such proof would be entitled to deference.

The
Chevron I Analysis , above, provides a clear and unambiguous answer to
the specific question of whether deeming a violation “reckless flagrant”
requires proof that the operator’s failure to eliminate the violation was done
with a conscious or deliberate expectation of harm, rather than recklessness. I
find that the question is answered at the first step of Chevron because
the text, structure, purpose and legislative history of the MINER Act
amendments at Section 110(b)(2) lead me to a clear and unambiguous conclusion
that Congress meant what it said – a reckless flagrant is predicated on
“reckless” conduct. And for that same reason, I obviously conclude that the
majority’s claim to have come to an unambiguously clear but completely contrary
interpretation is without merit.

Even
assuming arguendo that the result of the Chevron I Analysis was that
section 110(b)(2) is ambiguous as to the question of the appropriate mens
rea needed to prove a “reckless flagrant” violation, the D.C. Circuit in Natural
Resources Defense Council, Inc. v. EPA noted that, under step two of Chevron ,
“the agency’s interpretation must be sustained if it is reasonable in light of
the language, legislative history, and policies of the statute.” Natural
Resources Defense Council, Inc. v. EPA , 822 F.2d 104, 111 (D.C. Cir. 1987).
Thus, the Chevron I Analysis, which focused on these same subjects,
meaningfully informs the reasonableness inquiry at the heart of the Chevron
II Analysis . And the D.C. Circuit has held that the Secretary’s
interpretations of the Mine Act are entitled to special deference given the
Mine Act’s important purpose:

in the context
of a remedial health-and-safety act like the Mine Act whose “primary purpose .
. . [is] to protect mining’s most valuable resource—the miner,” Int’l Union,
[UMWA] v. [MSHA] ., 823 F.2d 608, 617 (D.C. Cir. 1987) (internal
quotation marks omitted), we must “‘liberally construe[ ]’” the Act’s terms,
meaning that we are all the more “obliged to defer to the Secretary’s
miner-protective construction of the Mine Act so long as it is reasonable.” Cannelton
Indus ., 867 F.2d at 1437 (internal quotation marks omitted).

Am.
Coal Co. v. FMSHRC ,
796 F.3d 18, 24 (D.C. Cir. 2015).

As
described more fully above, the Secretary’s
interpretation of the term “reckless” in the Mine Act’s flagrant provision protects
miners from the reckless bad actors Congress intended, unlike the overly
restrictive approach adopted by the majority that would only sanction those
operators so notoriously pathological it could be proved that they acted with a
deliberate and conscious expectation of causing death or serious bodily injury.
Unlike the majority’s non-expert approach, the Secretary’s interpretation is a
reasonable one, and is consistent with the formulation of “reckless” set out in
each of the Restatements and our case-law. Indeed, the Secretary has adopted
the interpretation set forth in the Restatement (Second) which provides that
“recklessness” occurs when an “actor has such knowledge, or reason to know, of
the facts, but does not realize or appreciate the high degree of risk involved,
although a reasonable man in his position would do so.” Sec Br. at 30 (quoting
Restatement (Second) of Torts § 500 (1965)). Thus, the Secretary’s
interpretation of a Section 110(b)(2) reckless flagrant violation has several
elements:

·        To establish a reckless “failure to make reasonable efforts
to eliminate a known violation,” 30 U.S.C. § 820(b)(2), the Secretary must
demonstrate that the operator made a choice not to correct a violation that is
actually or constructively known (or exhibited indifference in failing to
correct such a violation).

·       
The level of negligence is that required under
common law and existing Mine Act

case-law involving “recklessness” – there is no “heightened
recklessness” required and phrases or terms in the flagrant provision that are
the same or similar to those used elsewhere in the Mine Act should be
interpreted similarly.

·       
There is no scienter requirement. The word
“reckless” does not require proof of the operator’s deliberate or conscious
expectation of harm.

I
fail to see anything unreasonable about the Secretary’s interpretation of the
term “reckless” in the flagrant provision of Section 110(b)(2) to mean the same
thing as “reckless” in any other Mine Act context – that no showing of the
operator’s intent is required. S. Reply Br. at 2-3. In short, the Secretary’s focus is on the operator’s choice
not to correct a problem when the operator is aware or should be aware
of the potential consequences. Under this interpretation, proof of an
operator’s conscious intention to disregard the risk of harm to a miner when
failing to eliminate a deadly violation is not required. S. Br. at 29-32. This is a reasonable interpretation
consistent with the purposes of both the Mine Act and the MINER Act amendments,
and would answer the specific question not clearly answered at Chevron Step
I . Therefore, I would defer to the Secretary’s reasonable construction, as
I am required by law to do.

B.     The operator’s
failure to maintain the walkway in good condition was a flagrant violation.

The
facts of this case are so egregious that even under the incorrect
interpretation of “reckless” adopted by the Judge and the majority – one that
requires a mens rea for intentional rather than reckless conduct – this
violation would be flagrant. A written engineering report outlining the dangers
of the walkway and an operator’s deliberate choice to put essential repairs for
the walkway on the to do list, Tr. at 339, are exactly the type of operator
conduct Congress was trying to deter by including the flagrant penalty language
in the Miner Act.

The engineering report stated unequivocally that without steel plate
reinforcing, the outer walkways “cannot be found to be structurally adequate
for use,” and that the walkways “are not safe for personnel to be using until a
repair has been completed.” S. Ex. 5 at 2.

However,
Northshore management failed to remedy the ongoing walkway safety issues. As
early as 2013, a Northshore engineer submitted a work order stating that
“outside walkways and below conveyor need to be repaired.” S. Ex. 18. Even
after commissioning a report about the condition of the walkway, Northshore
failed to correct the safety problems until the accident occurred ten months
later. This despite language in the report that the outer walkways “cannot be
found to be structurally adequate for use. . . . [T]hey are not safe for
personnel to be using until a repair has been completed.” S. Ex. 5.

Such
a potentially lethal combination of a very serious condition which lasted for a
very long time fits squarely into the interpretation of “reckless” outlined
above. The dangerous conditions were compounded by the fact that, unlike a
visibly unsafe roof or a water inundation in a mine, the contract miners
working for Northshore were not aware of the unsafe condition of the walkway. Northshore
assigned them to work on the walkway, but gave them no notice of its dangerous
condition.

Although
the Judge ultimately ruled that the violation was not flagrant, she found that
all of the criteria needed to prove a flagrant violation were met with one
exception: that the operator’s failure to make reasonable efforts to eliminate
the known violation was “reckless.”  Cite to ALJ Dec. at 68-69. Substantial
evidence – including evidence the majority uses to find reckless disregard and
unwarrantable failure, slip op. at 25-28, supports her findings that the other
criteria were met. Northshore had knowledge of the safety hazard – Northshore’s
own engineers submitted work orders for the outer walkways, and other miners
complained about the conditions. Id. at 54. Moreover, the operator did
not make reasonable efforts to repair the walkway, and the structural defect
could reasonably be expected to cause death or serious bodily injury. 10

My
colleagues make some head-spinning pronouncements about factors that support
their finding of reckless disregard and unwarrantable failure and at the same
time, form the basis of their opinion that the violation was not
flagrant. First, the majority emphatically rules that, pursuant to Lehigh
Anthracite , 40 FMSHRC 273, 281-82 (Apr. 2018), Northshore’s use of fall
protection does not mitigate a negligence finding of “reckless disregard,”
explaining that fall protection was a completely inadequate effort to satisfy
the standard’s requirement and address defects in the walkway. Slip op. at 28. I
agree. Yet earlier, for purposes of their flagrant analysis, the majority
explains that the Judge correctly relied on the operator’s use of fall
protection as a mitigating factor in her “reckless flagrant” analysis. Slip op.
at 19-20. Citing no authority, the majority suggests that an analysis of
whether a violation is “reckless flagrant” focuses on whether the operator
acted intentionally while our negligence analysis does not. And because the majority
views the use of fall protection as an indication that the operator had no
deliberate purpose or conscious expectation of severe harm, it views these
efforts having nothing to do with a reasonable attempt to eliminate the
violation as mitigating the operator’s culpability. Id.

Under
this theory, an operator may avoid a “reckless flagrant” charge, not by
attending to the safety hazard at issue, but by ignoring it, substituting its
judgment for that of the Secretary, and by instituting alternative measures. Here,
the introduction of such alternative protocols (fall protection) clearly
indicated that the operator was aware of the safety hazard, making the decision
not to correct it appear intentional. In addition, the emphasis on fall
protection placed the burden to work safely only on the miners, instead of on
the operator who should have corrected the underlying condition. 11

Similarly,
in finding “reckless disregard,” the majority rejects Northshore’s argument
which claimed that the engineering report’s statement that the operator should
“restrict access” to the walkway was not an outright prohibition on access. Slip
op. at 27-28. Yet my colleagues base their finding that the violation was not
flagrant in part on the fact that the report recommended restricting access to
the outer walkways and that there was no evidence that this recommendation was
ever violated (even though, of course, access was never prohibited). Slip op.
at 19-20.

Arguably,
in the absence of high penalties associated with flagrant violations (up to
approximately $271,000), some operators might be tempted to roll the dice by
putting off safety repairs, knowing that non-flagrant penalties are capped at
approximately $74,000 and thus might be much less costly than the repair
itself. 1 2
This was precisely the situation that Congress wanted to address by providing
meaningful penalties under the Act. 13 Northshore’s actions in ignoring the
recommendations of its own experts and playing Russian roulette with the safety
of its workforce is properly deemed a “reckless flagrant” violation. 14

I
would reverse the Judge’s ruling that the operator was not “reckless” and
remand for a decision consistent with this opinion and for the assessment of a
penalty.

III.

The Judge’s
Findings of Individual Liability Should be Affirmed

A.     The merits of
the section 110(c) charges

Matthew
Zimmer and Roger Peterson were high-ranking managers at Northshore Mining who
were intimately involved with the problems surrounding the defective walkway. Importantly,
they each received a copy of the KOA report which, as previously noted,
emphasized that the walkways were “not safe for personnel to be using until a
repair has been completed.” Tr. 327; Resp. Ex. D; S. Ex. 5 at 2.

Their
response to this information was to continue to send miners to work on the
walkways. Their only nod to safety needs was to determine that fall protection
was needed.

Tr.
48-49; 478. Although they had the authority to prohibit miners from using the
walkway, they chose not to exercise it. Instead, they appeared satisfied with a
status quo that put the workforce in danger for months at a time.

The
Judge found the two individuals liable under section 110(c) for knowingly
failing to maintain the walkways in good condition in violation of 30 C.F.R. §
56.11002 (they were not charged with failure to barricade or put up warning
signs). She assessed penalties of $4,000 against each of them. For the reasons
discussed below, I conclude that the Judge’s finding of individual liability is
supported by substantial evidence, and thus dissent from the majority’s ruling
reversing the Judge. 15

Section
110(c) states that “[w]henever a corporate operator violates a mandatory health
or safety standard . . . any director, officer, or agent of such corporation
who knowingly authorized, ordered, or carried out such violation, failure, or
refusal shall be subject to the same civil penalties [as the operator].” 30
U.S.C. § 820(c).

An
individual acts knowingly when the individual is in a position to protect
employee safety and health and fails to act on the basis of information that
provides knowledge or reason to know of the existence of a violative condition.
McCoy Elkhorn Coal Corp ., 36 FMSHRC 1987, 1996 (Aug. 2014). As discussed
more fully below, Zimmer and Peterson were clearly in a position to protect the
safety and health of Northshore miners, but failed to act on the information in
the engineering report. The majority, however, relies on Maple Creek Mining,
Inc. , 27 FMSHRC 555 (Aug. 2005) to conclude that these individuals should
escape liability. According to the majority, the Secretary failed to prove that
these two individuals were “in a position” to remedy the condition at issue,
which under Maple Creek , is a prerequisite for section 110(c) liability. 16
Slip op. at 10-11. As demonstrated by the record evidence, their ruling is
misguided.

Matthew
Zimmer was section manager of Hot Side Asset Management. He had administrative
functions, would supervise work planners and supervise how many technicians
were needed for a job. He would supervise schedulers who organized work orders
to repair equipment, would review work orders, and provide his input on
scheduling of a work order.

Roger
Peterson was section manager of Hot Side Operations. It appears that he was responsible
for the running of equipment. He was also responsible for the maintenance group
whose workers changed the idlers on the walkway. As previously discussed, both
Zimmer and Peterson received a copy of the engineering report regarding the
defective walkway, and both were involved in discussions about the use of fall
protection. Both Zimmer and Peterson had the authority to shut down operations
for any reason, and were responsible for the safety of the workforce. Tr. 402,
433.

The
Judge’s finding of liability was based on:

·        The fact that
both managers informed their respective crews about the condition of the
walkways and that access was to be restricted but did not give the contractor
crew such warning. 17

·        Sufficient
evidence to demonstrate that both managers knew that the walkways were not
maintained in good condition.

·        The fact that
both managers received copies of the engineering report.

·        The fact that
both managers failed to act on the basis of the walkway information to protect
worker safety.

·        The fact that
both managers spoke with the Northshore engineer who received a work order
about the walkway, and together they decided to take no corrective action but
instead, decided to put the walkways on a list for later repair.

S. Ex. 19
(report of MSHA investigator).

·        The fact that
neither manager fully considered the importance of repairs.

·        The fact that
managers did not consider the importance of repairing the walkways or warning
miners of its deteriorated state, but tried to work around the issue by implementing
a fall protection policy.

·        The fact that
Zimmer authorized a work order for the 62/162 gallery in September 2015 which
stated in part “[v]erify the floor is safe on the east side of the conveyor. Roger
[Peterson] says that fall protection is required.” 18 Resp.
Ex. E.

41
FMSHRC at 73-76.

Even
under the Commission’s Maple Creek test, substantial evidence supports
the Judge’s finding of liability against these two individuals. Although it is
true that, as Zimmer and Peterson argue, the Engineering Department (under
Daniel Scamehorn) had the direct responsibility and authority to repair the
walkway, Zimmer and Peterson were not without recourse. They had the means to
eliminate the hazard – miners working on a dangerous walkway – in two regards. First,
it was within their authority to send a work order requesting that the walkway
be repaired, and to follow up if the repair was not performed in a timely
fashion. Second, it was within their ability to ensure that miners did not go
onto the walkway – even if that meant shutting down operations.

As
to their authority to send in work orders and to subsequently check on the
status of such orders, the record evidence is as follows:

·        Anyone at
Northshore with the proper computer system access could generate a work order
and send it to the Engineering Department;

·        An individual
sending a work order could prioritize it if it involved a safety hazard
(identifying it as a safety issue), which Betzler had done in the past; and

·        If the above
occurred, the work order would have higher priority.

The testimony of Jason Betzler (maintenance planner)
was that work orders could be coded to indicate the presence of a safety
hazard. Mr. Betzler further testified that such orders were given a quick
review for any safety issues. If there was an immediate concern, the subject
area would be taped off, etc. Mr. Betzler testified that the safety notation
heightened the order to the top of the list for his review. Tr. 305.

The
testimony of Matthew Zimmer was as follows:

Q. Was it ever
your understanding that there was a potential for a failure of the floor to
occur that would result in a fall to a person?

A. No

Q. If you had
had that understanding that that potential existed on the outer walkways, what
would you have done?

A. I would have
elevated the concern to my supervisor or both to the Safety Department.

Tr.
413-14.

The testimony of
Peterson was as follows:

Q. If a work
order is sent to Engineering, does that affect your involvement on it?

A. No. Once it
went to Engineering, it was really out of my control, my input.”

Tr. 421.

However,
Peterson added that “[w]e would meet with the Engineering Department every
month or two to go through the backlog to reprioritize if anything needed to be
changed.” Id

Both Zimmer and
Peterson stated that “[they had] the authority to shut down operations for any
reason.” S. Ex. 17. Therefore, at least theoretically, they could have shut
down operations until the walkway was repaired. S. Ex. 19 and 20 (Statements to
MSHA investigator).  

Thus
Zimmer and Peterson could have played a major role in remedying the hazard. They
could have submitted work orders about the walkway and marked them as affecting
safety. They then could have followed up with the Engineering Department
(Peterson’s testimony) or contacted a supervisor or safety official (Zimmer’s
testimony). Relieving them of liability simply takes advantage of a company
organizational chart as a defense to a serious violation, as the record
indicates that these were high-ranking individuals who could have exerted
pressure on the Engineering Department to make the repairs.

The
evidence regarding their authority to keep miners off of the walkway (thus
eliminating the hazard) is even more compelling. Peterson told the MSHA investigator
that “I am in charge of all work, operations and maintenance. . . . I direct
people that direct the workforce.” S. Ex. 17. Peterson and his subordinates
were responsible for implementing the means of protection for accessing the
outer walkways. Resp. Br. at 28. He testified that on the day of the incident
he told another supervisor that it was fine to let a cleanup crew go up to the
162 conveyor to perform cleanup work and to make sure they knew to wear fall
protection. Tr. 431. Zimmer heard the conversation and told the supervisor to
be sure fall protection was worn. Tr. 477-78. Hence, as a manager with the
authority to tell miners where they could and could not work, Peterson had the
ability to eliminate the hazard.

Zimmer
told the MSHA investigator “I do direct the workforce” although he also
testified that when he moved into the Asset Management position, the people who
worked under him would have no reason to be on the outer walkways. S. Ex. 17. Generally,
he had responsibility for directing the miners, and ensuring that they worked
safely. Tr. 402. Thus, like Peterson, he had the power to keep the miners off
of the walkway.

In
short, there is more than one way to fix a problem – there is more than one way
to “take remedial action to eliminate the potential . . . hazard.” Maple
Creek Mining , 27 FMSHRC at 569. Even the Maple Creek majority, in
finding two of the foremen not liable under section 110(c) for failure to
properly maintain an inundated escapeway in a safe
condition based their ruling on the fact that “neither was authorized to
redesign the pumping system or to construct an alternative walkway. ”
Id . (emphasis added) . The Maple Creek majority also
relied on the Commission’s Kenny Richardson decision, quoting the
Commission’s statement that “Richardson, in view of his position as day shift
master mechanic with general supervisory authority over the dragline . . .
should have removed it from service.” 19 Id . at 569 n. 9. In effect,
Zimmer and Peterson could have “removed the walkway from service” by
prohibiting miners from working on it. Neither did.

In
conclusion, substantial evidence supports the Judge’s finding of liability. It
is clear that Zimmer and Peterson were well aware of the problem with the
walkway and relied on fall protection to solve it, instead of advocating for
timely repairs. Their complacency, particularly in light of the engineering
report, is deeply troubling and constitutes the requisite “aggravated conduct”
required to find liability under section 110(c).

B.     Procedural issue
– Delay in Proposing Penalties

The
Secretary must file a penalty petition within a “reasonable” period of time. The
operator argues that there was undue delay (about 16 months after the operator
was cited) in MSHA’s filing of the section 110(c) penalty petitions. However,
the operator has not been able to persuasively articulate how it was prejudiced
by any alleged delay.

The
operator bases its argument on section 105(a) of the Act which provides in
pertinent part that:

[i]f, after an
inspection or investigation, the Secretary issues a citation or order . . .  he
shall, within a reasonable time after the termination of such inspection
or investigation, notify the operator by certified mail of the civil penalty
proposed to be assessed . . . for the violation cited . . . .”

30
U.S.C. § 815(a) (emphasis added).  

Consequently,
the Commission has held that, while delay on the Secretary’s part in proposing
a penalty may not vitiate the civil penalty proceeding and the finding of a
violation, an inordinate and unjustifiable delay might well vitiate the
imposition of the penalty itself. Twentymile Coal Co ., 26 FMSHRC 666,
682 (Aug. 2004), rev’d on other grounds , 411 F.3d 256 (D.C. Cir. 2005)
(“ Twentymile I ”).

Regardless
of how important procedural regularity may be, however, “it is subservient to
the substantive purpose of the Mine Act in protecting miners’ health and safety
[and the Commission] therefore must balance concerns for procedural regularity
against the severe impact of a dismissal on the Mine Act’s penalty scheme.” Webster
Cty. Coal, LLC ,
34 FMSHRC 1946, 1949 (Aug. 2012).

The
requirement in section 105(a) that the Secretary propose a penalty assessment
“within a reasonable time” does not impose a jurisdictional limitations period
but rather turns on whether the delay is reasonable under the circumstances of
each case. The Commission examines whether adequate cause existed for the
Secretary’s delay in proposing a penalty and considers whether the delay
prejudiced the operator. In Twentymile Coal Co ., 411 F.3d at 256
(involving a late-filed penalty assessment against an operator), the D.C.
Circuit formulated the following test when an operator charged that a proposed
assessment was untimely: (1) was the delay in proposing the penalty a
reasonable one and (2) did the operator show prejudice from whatever delay in fact
occurred? Id. at 262. The Court clarified that the time period subject
to the reasonableness requirement begins only upon the completion of the
investigation necessary to support the penalty proposal. Id .; see
also Salt Lake County Rd. Dep’t , 3 FMSHRC 1714, 1716-17 (July 1981);
Medicine Bow Coal Co ., 4 FMSHRC 882, 885 (May 1982); Steele Branch
Mining , 18 FMSHRC 6, 13-14 (Jan. 1996); Black Butte Coal Co ., 25
FMSHRC 457, 459-61 (Aug. 2003). The Commission has
held that a delay of less than 11 months is not unreasonable, particularly when there is a related ongoing section
110(c) investigation taking place. Sedgman , and David Gill,
employed by Sedgman, 28 FMSHRC 322, 340 (June 2006) (separate opinion of
Commissioners Suboleski and Young).

An
operator must show at least some “actual prejudice” arising from the delay in
order to secure a dismissal of a penalty proceeding due to a late-filed
petition. See Long Branch Energy , 34 FMSHRC 1984, 1991-93 (Aug. 2012); see
also Twentymile, 411 F.3d at 262. Furthermore, the prejudice must be “real”
and “substantial” to “justify the drastic remedy of dismissal.” Long Branch ,
34 FMSHRC at 1993.

The
operator contends that the delay caused prejudice at the hearing in part due to
the need for Inspector Norman (who conducted the investigation into the walkway
collapse) to rely on his notes on the witness stand rather than his own
personal recollection or his observations of recollections by other witnesses. According
to the operator, James Hautamaki, who led the MSHA section 110(c) investigation
after the initial citation and order were issued to the operator, experienced
similar problems at the hearing because of the delay, while Evander King (a
contract miner who filed a complaint with MSHA) did not recall crucial aspects
of the event when cross-examined. Northshore’s counsel contends that this is
prejudicial because it affected the operator’s ability to cross examine the
witnesses and present evidence. The operator further argues that the cases
against Peterson and Zimmer were essentially based not on the testimony of
Inspector Norman or the Special Investigator Hautamaki, but on the recitation
of hearsay evidence from persons who the Secretary did not produce as witnesses
or even identify in any fashion that would establish their credibility. As
such, the operator argues that the delay was unreasonable. Resp. PDR at 20 n.9.

The
Secretary never provided an explanation for the delay, 20
arguing to the Commission that the issue had been waived. 21 However,
the operator failed to demonstrate that it suffered any “actual,” “real,” or
“substantial” prejudice to “justify the drastic remedy of dismissal.” 22
Consequently, I would reject Northshore’s procedural challenge.

IV.            

Conclusion

I join the
majority in affirming the Judge’s findings of “reckless disregard” for both
violations. I also affirm the Judge’s conclusion that the two violations were
the result of the operator’s unwarrantable failures. However, I would find that
the Secretary proved a flagrant violation and that the individual miners were
liable under section 110(c).

/s/ Arthur R.
Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution:

R. Henry Moore, Eq.

Fisher &
Phillips LLP

Six PPG Place,
Suite 830

Pittsburgh, PA
15222

[email protected]

Archith Ramkumar,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th Street
South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson

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]

Administrative Law
Judge Margaret A. Miller

Federal Mine Safety
Health Review Commission

721 19th Street,
Suite 443

Denver, CO
80202-2536

[email protected]

[1]
Northshore also petitioned for Commission review of whether the order was a
violation. We declined to undertake that review.

[2]
Section 110(c) provides “[w]henever a corporate operator violates a mandatory
health or safety standard . . . any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same civil penalties [as the
corporate operator].” 30 U.S.C. § 820(c).

[3]
Section 110(b)(2) of the Mine 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.” 30 U.S.C. § 820(b)(2).

[4]
Section 56.11002 provides that “[c]rossovers, elevated walkways, elevated
ramps, and stairways shall be of substantial construction provided with
handrails, and maintained in good condition. Where necessary, toeboards shall
be provided.” 30 C.F.R. § 56.11002.

[5] Section 56.20011
provides that “[a]reas where health or safety hazards exist that are not
immediately obvious to employees shall be barricaded, or warning signs shall be
posted at all approaches. Warning signs shall be readily visible, legible, and
display the nature of the hazard and any protective action required.” 30 C.F.R.
§ 56.20011.

[6]
Perlite is “one of the natural volcanic aluminosilicate glasses (rhyolitic
rocks) which formed by the rapid cooling of viscous lava or magma.” Reka,
Arianit A., et al., Chemical, mineralogical and structural features of
native and expanded perlite from Macedonia, Journal of the Croatian
Geological Survey and the Croatian Geological Society, 2019 | 72/3 | 215-221
(2019) at 215. The perlite at the plant is a “portland cement mixture but it
has perlite aggregates in it as opposed to general concrete.” Tr. 241.

[7]
It was necessary to clean the outer walkways periodically because taconite
would spill over from the conveyors and accumulate on the outer walkways. Miners
would use hoses to wash taconite down the outer walkways. Miners therefore
needed to work on the outer walkways in order to do a “thorough cleaning.”  Tr.
435.

[8]
Spalled concrete means the surface of the concrete contains cracks or is chipping.
It is commonly seen in concrete driveways. Delamination is a splitting into
layers.

[9]
Zimmer also supervised the monitoring of the pellet plant equipment. Tr. 383.

[10]
Section 116 (a) states the following:

No person shall bring an action against any covered
individual or his or her regular employer for property damage or an injury (or
death) sustained as a result of carrying out activities relating to mine
accident rescue or recovery operations. This subsection shall not apply where
the action that is alleged to result in the property damages or injury (or
death) was the result of gross negligence, reckless conduct, or illegal conduct
or, where the regular employer (as such term is used in this Act) is the
operator of the mine at which the rescue activity takes place. Nothing in this
section shall be construed to preempt State workers’ compensation laws.

30 U.S.C. § 826(a).

[11]
Section 116 is the only section of the Mine Act that contains the term “gross negligence.”

[12]
Webster’s Unabridged Dictionary describes the etymology and definition of
flagrant as “ flagrans ,  -antis , p. pr. of  flagrate ,
to burn. https://www.merriam-webster.com/dictionary/flagrant?src=search-dict-box .
This definition accords with the common dictionary definitions. Merriam-Webster’s
Dictionary defines flagrant as “ 1 :  conspicuously
offensive flagrant  errors especially   so
obviously inconsistent with what is right or proper as to appear to be a
flouting of law or morality.” Id .

[13]
The New Oxford American Dictionary defines “reckless” as acting “without
thinking or caring about the consequences of an action.” The New Oxford
American Dictionary 1414 (2d ed. 2005). Black’s Law Dictionary defines
“reckless” as conduct “[c]haracterized by the creation of a substantial and
unjustifiable risk of harm to others and by a conscious (and sometimes
deliberate) disregard for or indifference to that risk; heedless; rash. Reckless
conduct is much more than mere negligence: it is a gross deviation from what a
reasonable person would do.” Black’s Law Dictionary (11th ed. 2019). And as a modifier
to “flagrant,” the gross deviation must be “intolerable, glaringly obvious, or
notorious.” Id . The Cambridge Dictionary defines it as “doing
something dangerous and not worrying about the results.” Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/reckless
(last visited Jan. 12, 2021). Indeed, the website dictionary.law.com defines
reckless disregard as “gross negligence without concern for danger to others.” Legal
Dictionary, dictionary.law.com (last accessed Jan. 12, 2021).

[14]
The Third Restatement’s comments on the definition of “reckless” state that “ Section 2 . . . sets
forth a standard for recklessness that is somewhat more restrictive than that
included in the previous § 500 [the applicable Second Restatement section].”

[15]
Black’s Law Dictionary defines “knowledge” as “ [a]n awareness or understanding of a fact
or circumstance; a state of mind in which a person has no substantial doubt
about the existence of a fact.” Black’s Law Dictionary (11th ed. 2019). Black’s
then describes the well understood distinctions between “actual knowledge”
(“direct and clear knowledge”) and “constructive knowledge” (“[k]nowledge that
one using reasonable care or diligence should have”). Id .

[16] Merriam-Webster
defines “expect” to mean “ to consider probable
or certain.” Merriam-Webster, https://www.merriam-webster.com/dictionary/expect (last accessed Jan. 12, 2021). The Cambridge
Dictionary defines “expect” as “ to  think  or  believe  something
will  happen .” Cambridge
Dictionary, https://dictionary.cambridge.org/us/dictionary/english/
expect (last accessed Jan. 12, 2021). The Macmillan dictionary also defines
the term as “to  think  that something
will  happen .” Macmillan
Dictionary, https://www.macmillandictionary.
com/us/dictionary/american/expect (last accessed Jan. 12, 2021). Finally,
in accord with the other dictionaries, Black’s Law Dictionary defines
“expectation” as “ 1.   The act
of looking forward; anticipation.   2.   A basis
on which something is expected to happen.” Black’s Law Dictionary (11th ed.
2019).

[17] Preferably, the Judge would have inserted the statutory
term “and proximately” after “substantially.”

[18]
As noted supra , crew members were instructed on how to put the
safety harnesses on and how to tie off with the lanyard from the harness. The
crew was instructed to tie off the entire time, and to affix lanyards in
sequence as each miner descended the walkway. Tr. 485, 486-87.

[19]
The evidence does not suggest that any expert witness would find the weight of
one miner would have caused the steel structure to break, thereby creating the
horizontal movement causing a portion of the walkway to dislocate.

[20] Obviously, wholly unexpected
accidents can cause fatalities and serious bodily injuries. Standing alone,
therefore, the occurrence of an event does not compel a conclusion that the
event was reasonably expected by observation. See Asarco, Inc. , 14 FMSHRC 941, 946 (June
1992) (“Neither the presence of loose materials, nor the fact that the roof
fell, by themselves, indicate that the area was not properly examined.”)

[21]
Franseen testified that the weight of the pellets was evidence of the strength
of the walkway. The walkway sustained the weight of the taconite on it. In
turn, it was that weight on the walkway holding the taconite that caused the
failure of the steel beam while the concrete walkway remained largely intact. Tr.
536, 539.

[22]
Moreover, the maximum penalty for a flagrant violation is indexed to account
for inflation. As of this year, the maximum flagrant penalty is nearly
$271,000. 85 Fed. Reg. 2292, 2299 (Jan. 15, 2020) (annual amendment of 30
C.F.R. § 100.5(e)). Thus, as far as the monetary penalty that can be imposed,
flagrant violations are now subject to a higher maximum monetary penalty
than can be imposed upon first time criminal offenders under section 110(d) of
the Mine Act, 30 U.S.C. §820(d), and it will be increasingly higher in each
future year.

[23] Black’s
Law Dictionary defines “reckless disregard” as, “1. Conscious indifference to
the consequences of an act. . . . 3. The intentional commission of a harmful
act or failure to do a required act when the actor knows or has reason to know
of facts that would lead a reasonable person to realize that the actor's
conduct both creates an unreasonable risk of harm to someone and involves a
high degree of probability that substantial harm will result.” Black’s Law
Dictionary (11th ed. 2019).

[24] We further hold
that it was within the Judge’s purview to credit the report and not credit
Leow’s contradictory testimony. “A [J]udge’s credibility determinations are
entitled to great weight and may not be overturned lightly.” Consolidation
Coal Co. , 20 FMSHRC 315, 319 (Apr. 1998). Leow’s testimony conflicts with
his report’s conclusions that the walkway was not structurally sound or safe
for use. S. Ex. 12, at 2. The Judge was there to observe the witness – we were
not. The Judge’s credibility determination against Leow was reasonable given
the clear tension between the plain language of the report and Leow’s
testimony. See, e.g. , Morgan v. Arch of Illinois , 21 FMSHRC 1381,
1391 (Dec. 1999) (“Before a [J]udge credits any testimony, [s]he must reconcile
all record evidence that is inconsistent with that conclusion.”).

[25]
In considering the flagrant charge, however, the Judge stated, “[g]iven that
decision [to use fall protection], there is no evidence to suggest a conscious
or deliberate indifference to the risks on the part of the mine.” 41 FMSHRC at 68. This statement made in regard to the
flagrant analysis would seem at odds with a finding of “reckless disregard”
from a negligence standpoint. However, the additional factors found by the
Judge, noted supra, support our affirmance of the Judge’s finding of
negligence with respect to the violation.

1 The operator was charged with a
violation of 30 C.F.R. § 56.11002, which provides that “[c]rossovers, elevated
walkways, elevated ramps, and stairways shall be of substantial construction
provided with handrails, and maintained in good condition. . . . .” It was also
charged with violating 30 C.F.R. § 56.20011 for failing to barricade the
walkway or post warning signs.

2 The unwarrantable failure
terminology is taken from section 104(d) of the Act, 30 U.S.C.§ 814(d). The
Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [It] is characterized by conduct
described as

‘reckless
disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of
reasonable

care.’”
Consolidation Coal Co ., 22 FMSHRC 340, 353 (Mar. 2000) (citing Emery
Mining Corp. , 9 FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted).

3 Currently the maximum penalty for a
non-flagrant violation is $73,901, 30 U.S.C.     § 820(a)(1), compared to a
maximum of $270,972, 30 U.S.C. § 820(b)(2). 85 Fed Reg. 2292 (Jan. 15, 2020).

4 The discussion of these elements in the
majority’s opinion, slip op. at 15-25 , are merely dicta and any
decisions purportedly reached on these issues are ultra viries and
without precedential value. Sunbelt Rentals, Inc ., 42 FMSHRC 16, 22
(Jan. 2020) (affirming that “if [a PDR is] granted, review [by the Commissioners]
shall be limited to the questions raised by the petition.” 30 U.S.C. §
823(d)(2)(A)(iii)).

5 The statutory text very clearly does
not accommodate what the majority claims is its own “plain meaning”
interpretation – one they maintain is so unambiguously clear that they need not
defer to the Secretary’s reasonable interpretation of a “reckless” failure. The
majority demands proof of “a conscious or deliberate disregard for the safety
of the miners through a failure to eliminate the violation, of which the
operator has actual knowledge, that proximately and substantially caused death
or serious bodily injury, or is reasonably expected to proximately and
substantially cause death or serious bodily injury.” Slip op. at 16. Yet,
nowhere in the text of the statute are words referencing a “conscious or
deliberate” expectation of serious injury or death from a failure to meet
safety obligations. Nor are there words indicating a violation is only flagrant
if was actually rather than constructively known.

6 Then, as now, “reckless” was commonly
understood as “without thinking or caring about the consequences of an action.”
The New Oxford American Dictionary 1414 (Erin McKean ed., 2d ed. 2005). As a
legal term, “reckless” had been described as conduct-- [c]haracterized by the
creation of a substantial and unjustifiable risk of harm to others and by a
conscious (and sometimes deliberate) disregard for or indifference to that
risk; heedless; rash . . . Reckless conduct is much more than mere negligence:
it is a gross deviation from what a reasonable person would do .” Black’s
Law Dictionary 1298 (8th ed. 2004) (emphases supplied).

7 A portion of the Restatement (Third) of
Torts was released in 2010 and supplemented in 2012, well after passage of the
MINER Act. Restatement Third of Torts: Liability for Physical and Emotional
Harm (2010/2012). Accordingly, it cannot be used to understand the plain
meaning of a law enacted in 2006. Still, the majority cites Chapter 1, Section
2 of the Third Restatement in an effort to support its “conscious and
deliberate” interpretation (slip op. at 15-16), but even the Third Restatement
is clearly incompatible with it. That definition begins by establishing that,
“[a] person acts recklessly in engaging conduct if the person knows of the risk
of harm created by the conduct or knows facts that make the
risk obvious to another in the person’s situation . . . . .” (emphasis
supplied). Thus an operator may be reckless under this definition even if it
lacks anything approaching a “deliberate” or “conscious” expectation of serious
injury or death, so long as the risk of serious injury or death would be
obvious to a reasonably prudent miner in the operator’s circumstances.

8 Whether the conduct is “aggravated” in
the context of unwarrantable failure is determined by looking at all the facts
and circumstances of each case, including (1) the extent of the violative
condition, (2) the length of time that it has existed, (3) whether the
violation posed a high risk of danger, (4) whether the violation was obvious,
(5) the operator's knowledge of the existence of the violation, (6) the
operator's efforts in abating the violative condition, and (7) whether the
operator has been placed on notice that greater efforts are necessary for
compliance. Consolidation Coal Co. , 35 FMSHRC 2326, 2330 (Aug. 2013)
(citing Manalapan Mining Co. , 35 FMSHRC 289, 293 (Feb. 2013); IO Coal
Co. , 31 FMSHRC 1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp .,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds , 195 F.3d 42
(D.C. Cir. 1999)); see also Consol Buchanan Mining Co. v. Sec’y of Labor ,
841 F.3d 642, 654 (4th Cir. 2016). These factors must be viewed in the context
of the factual circumstances of a particular case. Consolidation Coal ,
22 FMSRHC at 353.

9 My colleagues’ response to this point,
at slip op. 24, exposes their unfortunate confusion of two very basic legal
concepts: mens rea and burden of proof. The mens rea necessary to
establish the violation of any given statute – whether civil or criminal –
concerns the state of mind of the person accused of the violation at the time
of the allegedly violative conduct – e.g., negligently, recklessly, willfully,
deliberately. The burden of proof is an entirely different concept, concerned
with the mental processes of the judicial decision-maker and what quantity and
weight of evidence are necessary to establish a violation – e.g., beyond a
reasonable doubt, or by a preponderance of the evidence.

10 The Judge’s conclusion that the
violation reasonably could have been expected to cause death or serious bodily
injury is not at issue in this appeal. The Judge’s finding that the violation
did in fact meet this requirement of proving a flagrant violation was not
challenged in either petition for discretionary review, addressed in our order
directing review, or briefed by the parties. In dicta , supra 17-18, the
majority attempts to depart from our precedent in American Coal , 38
FMSHRC at 2066 and Lehigh Anthracite , 40 FMSHRC at 280 (directing an
objective analysis of whether the violation could have reasonably been expected
to cause death or bodily injury) to instead require an unsuitable subjective
analysis. This portion of their decision is decided ultra vires of our
statutory authority and therefore does not disturb existing precedent.

11 We note that in an S&S analysis,
the operator’s defense that fall protection was utilized would have been
rejected as a “redundant safety measure.” See Sec’y of Labor v.
Consolidation Coal Co. , 895 F.3d 113, 118 (D.C. Cir. 2018).

12 The repair was estimated to cost
$300,000. At the time of the violation, the maximum penalty for a non-flagrant
violation was $69,417. 82 FR at 5383 (Jan. 18, 2017).

13 See S. Rep. No. 95-181, at 9 (1977),  reprinted
in  Senate Subcomm. on Labor, Comm. on Human Res.,  Legislative   History  of the Federal Mine Safety and
Health Act of 1977 (1978) (“Mine operators still find it cheaper
to pay minimal civil penalties than to make the capital investments necessary
to adequately abate unsafe or unhealthy conditions . . . .”).

14 Indeed, Northshore’s repeated failure
to take reasonable steps to repair the walkway could itself establish
recklessness, consistent with our observation in Wolf Run Mining Co .,35
FMSHRC 536, 543 (Mar. 2013) that “repeated failure to make reasonable efforts
to eliminate a single known and dangerous violation will often be considered
reckless.”

15 When reviewing an administrative law
judge’s factual determinations, the        Commission is bound by the terms of
the Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). “Substantial evidence” means “such relevant evidence as a
reasonable mind might accept as adequate to support [the judge’s] conclusion.” Rochester
& Pittsburgh Coal Co. , 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)).

16 For the reasons set forth in
Commissioner Jordan’s dissent in Maple Creek , I believe that the
majority in that case erred in requiring the Secretary to show that individual
miners “possess the power to take remedial action” in order to prove liability
under section 110(c). Slip op. at 10-11. This added a new component to the
traditional section 110(c) analysis, which simply required the Secretary to
show that the individual was “in a position to protect employee safety and
health.” Maple Creek , 27 FMSHRC at 567. Moreover, this new
evidentiary element mandated by the majority in Maple Creek , which
requires proof that the individual has the authority to take remedial action,
fails to take into account that section 110(c) envisions liability simply when
an operator’s agent “carries out” a violation. Nonetheless, I analyze this
issue using the analysis set forth in the Commission’s Maple Creek
opinion.

17 The mine’s own permanent miners who
were more aware of the structural issues felt it was too dangerous to use the
outer walkways, and found alternate ways to perform conveyor maintenance. Tr.
116-17. By contrast, contract miners could not see the walkways under the
pellets, did not see any hazard or warning signs on the walkways, and were not
aware of problems with the walkways. Tr. 53, 68-69, 194, 202-03, 205-07; S. Br
at 12.

18 The work order to which the Judge
referred was not an order to repair the walkway. Rather, it was an order to
deal with an idler replacement.

19 Granted, the safety standard at issue
in Kenny Richardson explicitly required not only that equipment be
maintained in safe operating condition but that unsafe equipment be removed
from service immediately. 30 C.F.R. § 77.404(a). However, Northshore could have
avoided liability under section 56.11001, which requires that the walkway be
maintained in good condition, if the walkway, in effect, had been “taken out of
service” by forbidding miners to go on it, and by barricading it. Id.

20 The Secretary erroneously claims that
the operator waived this argument before the Judge because the Secretary
incorrectly states that the operator raised this argument for the first time in
its opening brief. The operator made this argument before the Judge at the
hearing and in its answers to the Secretary’s section 110(c) petitions. Tr.
225-26. Therefore, the Judge had an “opportunity to pass” on the issue. 30
U.S.C. § 823(d)(2)(A)(iii); accord 29 C.F.R. 2700.70(d). Furthermore,
the operator states that it was unable to develop the argument in its
post-hearing brief because of a “[twenty]page limit” that the Judge “imposed on
the parties for post-hearing briefs” – despite the numerous complex issues
involved in the case. NS Resp. Br. at 31-32.

21 Before the Judge, the Secretary did
not offer any explanation for the delay. However, if the operator is to be
given leeway for failing to brief the issue given the 20 page limit imposed by
the Judge for the parties’ post-hearing briefs, the same leeway must be given
to the Secretary.

22 An MSHA
inspector having to refer to contemporaneous interview notes is not unusual at
Commission hearings and hardly qualifies as “real” or “substantial” prejudice
that justifies outright dismissal. Furthermore, Commission procedural rules
expressly allow for hearsay evidence. 29 C.F.R. § 2700.63(a).