With Mine Safety and Health Administration (MSHA) enforcement efforts ramped up to levels seldom before seen, more and more 104(d)-paper is being issued to the mining and crushing industries. MSHA writes a citation or order under section 104(d) of the Mine Act if the agency discovers a violation of a safety or health standard that it believes resulted from an operator’s unwarrantable failure to comply with that health or safety standard. What is an unwarrantable failure? The Mine Safety and Health Review Commission, MSHA, and operators have been trying to figure that out since the Mine Act’s passage in 1977. Each 104(d) citation or order presents a unique set of circumstances. Prior to 1988, under the Ziegler Coal case, MSHA could consider an operator’s ordinary negligence an unwarrantable failure. In other words, if an operator knew or should have known that violative conditions or practices existed, MSHA could issue the operator d-paper.
Reprinted with permission from Aggregates Manager.