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DRAFT: “Unwarrantable failure” is a special negligence finding that is made by a MSHA inspector pursuant to Section 104(d) of the Mine Act in connection with the issuance of Section 104(a) citation. Utah Power and Light Co., 11 FMSHRC 953, 956 (June 1989). The focus of the special finding is on the “operator’s conduct.” NACCO Mining Company, LAKE 85-87-R , (Commission Decisions, Sep. 30 1987).
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