Unwarrantable failure

Other mining-related legislation in 1966 (Public Law 89-376), responsive to recommendations of the coal mine task force report, extended the provisions of the 1952 act to coal mines that employed 14 or fewer miners. It also empowered bureau inspectors to issue withdrawal orders whenever repeated unwarrantable failures to comply with safety standards were discovered. However, federal emphasis was still on coal mine disasters, leaving as much as 90% of injury and fatality incidents to be addressed by state law and the federal safety code. This inadequacy was soon addressed because of public outrage generated by yet another coal mine disaster, along with an intolerable nondisaster death toll. 

An S S finding fulfills a prerequisite for a citation to be evaluated under one of MSHA s sternest enforcement mechanisms—the Unwarrantable Failure citation, which will be discussed in detail under the section on Orders of Withdrawal below. 

Unwarrantable Failure—The D Order Earlier it was mentioned that any S S violation may... 

If an inspector concludes that a particular S S violation resulted from an unwarrantable failure of the operator to comply, the inspector will issue a citation that states that an unwarrantable failure exists. That citation is referred to as an unwarrantable failure citation or a D citation (referring to section 104(d) of the Act). ... 

In practice, there are three principal effects of the unwarrantable designation in any citation. First, the operator is essentially put on probation. If any further unwarrantable faQines are found in the next 90 days—even if the violations are not S S—an order (not a citation) will be issued. Once an order is issued under these circumstances, every unwarrantable failure results in an order nnless and until the mine undergoes a complete inspection and no further unwarrantable faQines are found. Multiple unwarrantable failures result in what is sometimes referred to as a sequence or chain. As a practical matter, it seems that very often after one unwarrantable failure is issued, others tend to follow. 

Inspectors can also order a withdrawal if they find another violation caused by the unwarrantable failure of the operator to comply within 90 days of the first inspection. 

To insure that decisions about safety are not merely good guesses, Federal law holds all parties accountable for the quality of their documentation. When management fails to document the reasons for their action, they can be held liable for unwarrantable failure. ... 

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. ... 

The notion of unwarrantable failure implies that we cannot distinguish in hindsight between the failure to discover warrants and the failure to document these warrants in writing. In either case, the actions that result are unwarrantable failures. 

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