By Peter S. Gould

With MSHA enforcement efforts ramped up to levels seldom before seen, more and more 104(d)-paper is being issued to the mining and crushing industries. MSHA writes a citation or order under section 104(d) of the Mine Act if the agency discovers a violation of a safety or health standard that it believes resulted from an operator’s unwarrantable failure to comply with that standard.

What is an unwarrantable failure? The Mine Safety and Health Review Commission, MSHA, and operators have been trying to figure that out since the Mine Act’s passage in 1977. Each 104(d) citation or order presents a unique set of circumstances.

The Commission in Emery Mining concluded that an unwarrantable failure means an operator’s aggravated conduct constituting more than ordinary negligence 9 FMSHRC 1997 (1987). Aggravated conduct is describable by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or “a serious lack of reasonable care,” and can only be properly determined by looking at the totality of the circumstances, taking into account several factors to determine whether the operator’s conduct exceeded ordinary negligence. Those factors include:
•    The length of time the violation existed;
•    The extent of the violative condition;
•    Whether the operator had been placed on notice that greater efforts were necessary for compliance;
•    The operators’ 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.
See Eagle Energy Inc., 23 FMSHRC 829, 835 (Rev. Comm’n); Mountain Coal Co., 26 FMSHRC 853, 869 (ALJ 2004).

The Commission considers prior similar violations to be one of several factors that lead to a determination of unwarrantable failure to comply with MSHA standards. Prior similar violations lend weight to a finding of an unwarrantable failure, but only if the Commission or one of its administrative law judges finds that the prior violations would have “placed the operator on notice that greater efforts are necessary for compliance.” The Commission has held, however, that prior violations alone do not give rise to an unwarrantable failure.

For example, in one case where MSHA cited the operator of a “very wet” coal mine for water accumulations of up to 15 inches in an escape way, the Commission determined that violation was an unwarrantable failure after considering that: (1) the operator could have abated the accumulation of water by running a 1,000 ft discharge line from the escape way, but the operator decided not to attempt that means of discharge; (2) the operator made no attempt to abate the water accumulation, and even those options within the operator’s control were not attempted; (3) the danger of 110 ft of 15 inches of water was obvious; and, (4) the operator had been previously cited for and warned of chronic water accumulation in the mine. In this case, prior violations were only one of several factors that led the Commission to a determination of unwarrantable failure. See Eagle Energy, 23 FMSHRC at 831-33.

In another case, where an underground coal mine operator was cited for excessive respirable dust levels, an MSHA inspector issued an unwarrantable failure citation on the basis of prior citations in an effort to induce future compliance despite the operator’s efforts to abate the dust problem. The judge affirmed the unwarrantable failure citation, finding that the operator’s compliance history created a rebuttable presumption that the violations were due to an unwarrantable failure. The Commission reversed the judge’s opinion and held that the violation did not constitute the operator’s unwarrantable failure merely because the operator had been previously cited for similar violations; stating that Commission “case law does not recognize a presumption of unwarrantable failure based on an operator’s history of non-compliance,” that a violation did not rise to the level of an unwarrantable failure simply because the operator had been previously cited for similar violations. See Peabody Coal Co., 18 FMSHRC 494, (Rev. Comm’n 1996).

If, however, a violation constitutes notice to the operator that “greater efforts are necessary for compliance,” then the history of non-compliance weighs against the operator in an unwarrantable failure determination. The types of violations that will put an operator on notice generally are those that are similar to the violation at issue, although identical circumstances are not required to establish substantial evidence of notice to the operator. The Commission has further held that in “evaluating evidence of prior warnings as a part of the unwarrantable failure analysis, the Commission has not required the previous condition involve materials identical to those involved at issue.” See Enlow Fork Mining Co., 19 FMSHRC 5 (Review Comm’n 1997).

Implications of D-Paper
Unwarrantable failure findings can have significant economic consequences, both in terms of penalties and orders that can halt an operator’s production. They are also evaluated for special investigations and are one of the criteria the agency considers in determining whether a pattern of violations exists.

In certain extreme situations, prior violations of the same health or safety standard, and, in turn, unwarrantable failure findings may give rise to a flagrant violation, defined by the MINER Act as “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.” Flagrant violations can also be assessed a civil penalty of up to $220,000, if determined to be the result of a repeated failure to eliminate a known violation.

Conclusion
Issuance of a citation or order under 104(d) of the Mine Act can have widespread and lasting repercussions, and repeat or similar prior violations can and do contribute to unwarrantable failure findings. It is thus imperative to ensure that your operation has strategies in place for (1) preventing and correcting violative conditions once discovered, thereby improving safety and precluding aggravated conduct determinations; and (2) resolving improperly issued d-paper to avoid large fines, closures orders and problematic and costly special investigations down the road.

Gould is an associate with Patton Boggs LLP. He can be reached at 303-894-6176 or at pgould@pattonboggs.com.
Correction: In the last issue, John Austin was incorrectly listed as a partner with Patton Boggs LLP. He is of counsel with the firm.