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 Commission 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 Mine Improvement and New Emergency Response Act of 2006 [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. This occurs if: the violation is S&S; the injury or illness is determined to be at least permanently disabling, and the type of action is determined to be an unwarrantable failure and the operator had been charged with two or more prior unwarrantable failure violations of the same health or safety standard within the past 15 months. If the violation meets those criteria, it is then evaluated to determine whether it proximately caused, or could have reasonably expected to cause, death or serious bodily injury.

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. Thus, it is 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.

 Peter S. Gould is an associate at Patton Boggs LLP. He advises clients on administrative law matters and complex litigation with a focus on environmental, heath, safety, and land use. Gould may be reached via phone at 303-894-6176 or via e-mail at pgould@pattonboggs.com.