MSHA Unwarrantable Failure Criteria Under Spotlight
The Mine Safety and Health Administration is handing out Section 104(d) unwarrantable-failure citations and orders with alarming frequency. Many clients tell me (and research confirms) that the mine may have gone without ever receiving one in the past, only to suddenly get five or more in a single inspection. Many are wondering what they did to deserve this and what can be done about it.
The stakes are high, given that Section 104(d) actions can be deemed flagrant violations under the MINER Act (and MSHA policy) if they are categorized as "reasonably likely" to be at least "permanently disabling" and involving either a "high" or "reckless disregard" negligence classification. The maximum penalty for a flagrant violation is $220,000 per citation/order. There are statutory minimum penalties of $2,000 for Section 104(d)(1) actions and $4,000 for Section 104(d)(2) actions. One small company that I represent got socked by MSHA during a routine 2009 inspection with 20 Section 104(d) actions along with many regular citations. Total proposed penalties are more than $400,000.
These elevated actions are one of the indicators that bump a mine up on an MSHA district office's list for a pattern-of-violations warning letter. They also are the predicate action for proceeding personally (civilly or criminally) against agents of management under Section 110(c) - which can trigger individual civil penalties of up to $70,000 per citation/order, a criminal penalty of up to $250,000 and up to one-year imprisonment. Finally, they can form what is known as a D chain that can result in subsequent violations in the same or future inspections serving as closure orders for the affected equipment or area of the mine.
It is ironic that, in the year that marked the lowest number of mine fatalities in history, these elevated enforcement actions have skyrocketed. Many puzzle over how the industry can be both safer and yet "guilty" of more egregious safety violations. Some question whether the criteria used to categorize an alleged violation as an unwarrantable failure have changed.
The short answer is, no. The language governing these violations comes straight out of the 1977 Mine Act, which makes reference to "an unwarrantable failure of [an] operator to comply with ... mandatory health or safety standards." Unwarrantable failure is characterized by such conduct as reckless disregard, intentional misconduct, indifference, or a serious lack of reasonable care. Language about aggravated conduct normally is included right in the text of citation or order, which is a good flag that the company and its agents are in deep mud.
The first Section 104(d) action must be significant and substantial (S&S) but the ones that follow can be non-S&S and still will be subject to the mandatory minimum penalties. How the degree of negligence needed to sustain a Section 104(d) finding is evaluated by the court is a complex process, and a recent case by the full Federal Mine Safety & Health Review Commission, IO Coal Company Inc. (Dec. 14, 2009) provides the criteria that commissioners believe must be addressed by Administrative Law Judges when ruling either to affirm, reduce or vacate MSHA's findings.
The IO Coal matter, the ALJ's findings, which he said did not support an unwarrantable failure classification, were that there were genuine and good-faith disagreements between the mine foreman and the inspector as to what constituted an unsafe condition, and that the section foreman had tried to meet the required standard of care. The judge also had speculated that the inspector had acted out of personal pique in designating the violation as an unwarrantable failure. All commissioners agreed that the judge did not perform the mandated analysis.
Whether conduct is aggravated is determined by considering the facts and circumstances in each case and determining whether aggravating or mitigating circumstance exist (high negligence is if the operator knew or should have known of the violation, and there are no mitigating factors).
The extent of the violative condition is important; the example in IO Coal is that five accumulations of loose coal and coal dust could be deemed extensive. In essence, the ALJ is to consider how widespread the unsafe conditions are. If they are not widespread, this could be a mitigating factor that could justify reducing the level of negligence.
How long the violative condition existed is a necessary element in the analysis. Here, the duration of unsupported ground was five days, exposing multiple shifts to roof-fall danger. The judge was directed to consider if this was an aggravating factor, and if it should be affected by his finding that the mine operator had a good-faith belief that no violative condition existed.
Repeated similar violations may be relevant to an unwarrantable failure determination because they put an operator on notice that greater efforts are needed for compliance. Evaluating the number of past violations, the commission wrote, is to determine the degree to which those violations have “engendered in the operator a heightened awareness of a serious problem.” IO Coal had received four previous citations for unsupported kettle bottoms in the six weeks prior to the issuance of the Section 104(d)(1) citation. Mine operators should check their own histories; inspectors do this before starting an inspection and will increasingly be classifying new violations of these standards as unwarrantable. The commission also noted that uncontested citations that have been paid constitute an admission of violation. So paying low-dollar Section 104(a) citations, even those believed to be bogus, will be used against them when it comes to subsequent citations under the same standard.
The operator's effort in abating the condition is something the commission views as determinative of whether a violation is unwarrantable. Previous, repeated violations and warnings from MSHA place the operator on high alert that more is needed to rectify the problem.
It is a virtual certainty that this decision will force judges to ask a lot more questions at trial and write more complex decisions if they wish to avoid reversal or remand in Section 104(d) cases.
AUTHOR INFORMATION
Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com