• The operator’s knowledge of the existence of the violation (including what an operator “had reason to know” or “should have known”).

In its holding, the Commission found that the ALJ did not address all of the elements of the unwarrantable failure analysis listed above and remanded the finding for a “fuller discussion that identifies and incorporates all the relevant elements and explains how each element affects his unwarrantable failure determination.”

Of course, each case is different and all factors need to be considered on a case-by-case basis. That said, these listed factors are important ones that can be used as a guideline in making your case to get a 104(d) order or citation reduced. Additionally, when appropriate, operators can argue an agent acted on the good faith belief that his/her conduct was in compliance with applicable law and that this belief was objectively reasonable under the circumstances. Best efforts should be made to reduce the citation or order as early on in the process as possible. Begin this analysis and begin collecting evidence to support your case immediately after receiving the citation/order. Even if your efforts are not successful at the close-out or conference, you will at least have collected the material close in time to the event and will have saved a record to support your argument should the matter proceed to litigation.

Last, but not least, remind your managers that they have the right to not talk with MSHA. When faced with questions from an inspector that is attempting to box in a miner for an aggravated conduct citation (i.e., “How long have you known about this condition?”), tell the truth (if you can without admitting knowledge) or say nothing. A simple, “I don’t want to talk about this” is perfectly acceptable. AM

Donna Vetrano Pryor is an associate in the Denver office of Patton Boggs LLP. She assists a diverse range of clients in complex commercial litigation matters in state and federal courts, as well as during alternative dispute resolutions. Vetrano Pryor may be reached via phone at 303-894-6145 or via e-mail at dvetrano@pattonboggs.com.