The Problem of Unwarrantable Failure

The case of Secretary of Labor v. Consolidation Coal (Consol) demonstrates how courts can hold operators liable for the quality of their communication practices. 

Written evidence ensures that miners and management do not willfully or inadvertently overlook the signs of significant and substantial danger. In rhe-torical terms, unwarrantable failures cannot be supported by the available evidence. To insure that their decisions have ample warrant, individuals must document in writing the conversations, observations, and physical evidence on which they base their decisions. 

Inspectors can cite operators for unwarrantable failures under Section 104 (d)(1) of the U.S. Mine Act. The term is not defined in the Mine Act, but the Secretary of Labor has interpreted the meaning to include the failure of an operator to abate a violation he knew or should have known existed. The legal and legislative history of the term describes unwarrantable failure in terms of indifference, knew or should have known, lack of due diligence, and lack of reasonable care. It does not include cases where an operator knew of a danger and took exceptional measures to bring the condition into compliance (Secretary of Labor v. Emery). Instead, the term refers to those cases where an operator knew of the condition but failed to provide adequate remedy.  

MSHA holds inspectors accountable for the quality of their documentation even when they themselves cannot be present to observe all aspects of work. Inspectors must evaluate enough conditions and practices and ask sufficient questions of miners to be reasonably assured that work is being safely conducted during the portions of the cycle that could not be observed. If inspectors fail to show by a preponderance of evidence that a violation has occurred, an administrative appeals court can overturn inspectors judg- 

In the wake of Pyro, labor unions criticized MSHA for failing to prevent the disaster. The union blamed inspectors for not documenting all of the areas of the mine. According to one handwritten memo, inspectors kept a mental track and did not actually document all areas of the mine. Supervisors did not review inspectors notes to verify that they had inspected the entire mine, and maps plotting the day-to-day progress of inspection were not kept up-to-date. The memo outlines MSHA s failures and concludes MSHA was aware of Pyro s disregard for the law... . Pyro s Failure to Comply resulted in the explosion  

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