The elevated enforcement actions of sections 104(b), 104(d), 104(g), and 107(a) of the Mine Act continue to be well-used hammers in MSHA's arsenal. According to MSHA's own numbers, elevated enforcement actions by the agency against coal operators are up 142 percent from calendar year 2000 to 2008, and up 19 percent from 2006 to 2008. Along with more elevated paper comes increased penalties, often in startling amounts. The total amount assessed by MSHA against coal operators increased 1,152 percent from 2000 to 2008, and 579 percent just from 2006 to 2008. Total penalties assessed against coal operators just last year reached $152.7 million. That number figures to go even higher in 2009, even with the economic slowdown affecting the industry, due to expected increases in federal inspectors and the new administration's aggressive approach to enforcement. Of course, under the new penalty scheme in place since April 2007, $2000 is the minimum penalty for a citation or order under section 104(d)(1), and $4000 the minimum for those orders written under section 104(d)(2), whether or not the regular assessment under the points system justifies those amounts.

While elevated enforcement actions, and particularly those written under section 104(d), cause immediate disruptions and lost production when sections are shut down and resources diverted, these orders can also have long-term consequences that must be addressed with a view towards the big picture. A mine with a history that includes frequent citations and orders under section 104(d) is a mine subject to "flagrant" assessments that can run as much as $220,000 per order.[1] Also, citations and orders written under section 104(d) are oftentimes what MSHA special investigators look toward when launching an investigation under section 110 of the Mine Act into the operator's foremen and other managers. Therefore, it is imperative that mine operators do two things: (1) take every precaution possible to avoid even giving MSHA an excuse to issue an elevated enforcement action; and (2) when MSHA issues a section 104(d) citation or order, get the facts and witnesses' statements immediately, so that the operator can later defend and protect itself and its employees. Further proactive steps are also discussed below.

Of course, to know how to defend the company from enforcement actions under section 104(d), it is helpful to know just what MSHA is alleging when it issues a citation or order under that section. Citations and orders written under section 104(d) mean that MSHA is alleging the operator has committed "unwarrantable failure." The Federal Mine Safety and Health Review Commission defined what that means when it held: "Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. It is characterized by such conduct as reckless disregard, intentional misconduct, indifference, or a serious lack of reasonable care." Emery Mining Corp., 9 FMSHRC 1997 (December 1987) (emphasis added). The Commission has also provided a list of factors relevant in determining whether a violation occurred because of an unwarrantable failure. These factors include the extent of the violative condition, the length of time that it has existed, whether the violation is obvious, whether the operator has been placed on notice that greater efforts are necessary for compliance, and the operator's efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994). Repeated similar violations may also be relevant to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with the standard. Peabody Coal Co., 14 FMSHRC 1258, 1263-64 (August 1992). The Commission has also held that the involvement of a supervisor in the violation is another factor relevant to an unwarrantable failure determination. Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001). Commission precedent does state, however, that aggravated conduct is more than a "knew or should have known" standard because unwarrantable failure is more than ordinary negligence. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993). To show you how these legal principles play out with actual facts, below are a couple of examples of cases where the Commission found the operator did commit unwarrantable failure.

In Kitt Energy Corp., 6 FMSHRC 1596 (July 1984), the Commission found unwarrantable failure where Kitt's awareness of an unguarded moving machine part was demonstrated by "recurring notations of the condition in the preshift book, fabrication of replacement guards, the ordering of a new guard, and the ineffective use of a wire to block access to the area." In Youghiogheny & Ohio Coal Co., 12 FMSHRC 2007 (Dec. 1987), the Commission upheld the unwarrantable failure finding on a roof control violation where the company's repetition of the same violation even after multiple citations showed aggravated conduct. Also in Youghiogheny, the section foreman's conduct was held to support the unwarrantable failure finding where he made the deliberate decision to violate the roof control plan when he had the controls of the continuous miner and cut through to unsupported roof.

In Consolidated Coal Co., 23 FMSHRC 588 (June 2001), the Commission found unwarrantable failure where the company failed to eliminate a violative condition and intentionally subordinated regulatory compliance to production concerns. Also important to the unwarrantable failure finding was that the company had discussions with MSHA about the need for greater compliance efforts, the company had received numerous citations on the violative conditions, and MSHA proved that the conditions had existed in an obvious state for an extended period of time without action by the company. In Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001), the Commission upheld an unwarrantable failure finding where the Secretary proved the violation lasted several weeks and management knew of the violation and failed to correct the violation despite being repeatedly informed by several parties that corrective action was needed.

As these cases demonstrate, unwarrantable failure typically involves a situation where the company had knowledge that it was in violation of a regulation -- either because a supervisor was involved, the condition was obvious, or an inspector had previously mentioned it -- and chose to continue without correcting the condition. While these situations may occur, most mine operators are conscientious and mindful of safety even while being productive and do not act with reckless disregard, intentional misconduct, indifference, or with serious lack or reasonable care.

In addition to striving for regulatory compliance and improvement in compliance methodologies, operators would be well served to document their efforts. Such documentation can provide a contemporaneous record of conscientious conduct and proactive decisions that effectively make safer workplaces and serve as a significant counter-balance to the agency’s allegations which are often misplaced and so narrowly focused that an accurate picture is not presented. Training of personnel about capturing factual information and recording it is one proven method of preventing and defending against elevated enforcement actions.