Unwarranted Unwarrantables

Brooke Wisdom

March 1, 2010

Strategies for getting paper reduced before the 110(c) investigation.

By Donna Vetrano Pryor

From 2000 to 2008, the total amount of elevated enforcement actions taken by the Mining Safety and Health Administration (MSHA) for both coal and metal/non-metal increased 67 percent from 3,222 actions in 2000 to 5,393 in 2008. Anyone operating a mine last year is likely to expect yet another increase with 2009 numbers. Allegations of unwarrantable failures and 104(d) paper are on the rise; hence, operators are seeing more and more special investigators at their door seeking to conduct 110(c) investigations to determine whether an agent of an operator knowingly ordered, authorized, or carried out a violation of a mandatory safety or health standard. Under section 110(c) of the Act, criminal and civil penalties may be issued against an agent if there are positive findings of a violation being knowing or willful in nature.

Of course, the best way to reduce the risk of a manager being found to have made a knowing or willful violation is to prevent the violation. If paper is written, the operator should attempt to get the citation or order reduced before it is referred to Special Investigations. A recent decision issued by the Federal Mine Safety and Health Review Commission helps clarify what is required to establish an unwarrantable failure and, thus, what operators can argue when they are seeking to have citations reduced.

In Secretary of Labor v. IO Coal Co., Inc., the operator was issued a 104(d)(1) order alleging that a section of the mine contained adverse roof conditions in the form of inadequately supported and unsupported surface cracks and kettle bottoms. The operator contested the order and the administrative law judge (ALJ) found that, while the Secretary established the existence of an S&S violation, the operator’s lack of care was not a result of unwarrantable failure. The ALJ found, since some kettle bottoms in the cited area were adequately supported, he could infer that there was not a widespread and reckless disregard of the requirements of the roof control plan.

Upon review of the ALJ’s decision, the Commission stated that, whether conduct is “aggravated” in the context of an unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. “Aggravating factors” include the following:

• The length of time that the violation existed;

• The extent of the violative condition;

• Whether the operator has been placed on notice that greater efforts were necessary for compliance (including past violations and past discussions with MSHA about the alleged problem);

• The operator’s efforts in abating the violative condition (prior to the citation or order being issued);

• Whether the violation was obvious or posed a high degree of danger (including whether miners worked and traveled in the cited area and were exposed to hazardous conditions); and

• 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.

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