Safety Lessons Learned

Regulations, Inspections, Enforcement Risks and Power Politics.

By Henry Chajet

The American Mining Congress (AMC), the extraction industry’s former “umbrella” trade group, hired me to work with related associations and counsel the mining, quarrying, cement and mineral refining industries, and their equipment manufacturers, to respond to the “new” Federal Mine Safety and Health Act (MSHA) of 1977, effective March 1978.

My first assignment was to tour U.S. operations, and develop and present seminars on dealing with the new MSHA law while encouraging the continuing improvement of the industry’s safety record. My responsibilities expanded to D.C. lobbying and litigation in the new Federal Mine Safety Review Commission and the Courts, to challenge counterproductive or unfair agency implementation polices. The achievement of critical infrastructure and national defense goals were being challenged by an agency that did not consider these goals.

The 1977 MSHA law, like its predecessor, the 1969 Coal Act, was a Congressional reaction to tragic, fatal disasters broadcast on national television. It placed unprecedented power in the agency and its field inspectors, including the power to close a facility without prior court review (required for an OSHA closure). Adding money to power, Congress funded MSHA at about $500 per covered employee, compared to about $3 per covered employee at OSHA.

Besides applying a “beefed-up” coal law enforcement system to metal and non-metal facilities, the 1977 Act mandates complete yearly federal inspections of every facility, imposing fines, closure orders, and potential criminal sanctions for violations of hundreds of pages of regulation. It empowers MSHA, an agency in the Department of Labor, to issue and enforce new rules and standards. It also authorizes civil and criminal enforcement against individual management personnel, without warnings about self -incrimination or the right to counsel.

The law also authorizes MSHA abatement mandates before any judicial review of the validity of alleged violations or hazards and it protects miners from safety discrimination, authorizing their reinstatement if their discrimination complaint is not frivolous. In essence, the 1977 law created massive and ongoing challenges for an industry also facing increasing and difficult environmental law challenges.

Perhaps the new Administration and Congress, and the agency itself, will create opportunities to further safety goals, and industry jobs that contribute to our desperately needed infrastructure improvement. Ideas “floated” for improvement include amendments to the 1977 Act, resource equalization for MSHA and OSHA, industry experience requirements for agency personnel, the creation of an Ombudsman to elevate MSHA/DOL urgent concerns to agency leadership levels, and the creation of a Mining “Bill of Rights” to reinforce national infrastructure and national defense goals, industry protections, and fair, unbiased and timely review of MSHA enforcement actions.

Here are some of the key MSHA lessons learned since 1977 that can enhance the prospects of successful MSHA reform.

Knowledge is Critical. Facility managers, supervisors and company safety personnel need to understand the MSHA law and know how to respond to inspectors to enhance safety and secure favorable inspection and investigation results. Seminars and management training continue almost 40 years after the 1977 Act, with my law firm partners and I, and others, training management personnel how to best deal with evolving MSHA site activities, based on a law with radical departures from the norm. There is no substitute for management knowledge.

Applicable Rules and Trained Inspectors. While the vast majority of industry experiences with MSHA inspectors have been uncontroversial, far too many are troubling and do not contribute to safety. One of the most difficult MSHA challenges for the stone, sand, gravel, and metal and nonmetallic minerals industry results from the application of coal concepts and the assignment of coal inspectors to non-coal facilities. It is nearly impossible to change the thinking of a former coal miner, now working at MSHA, that coal concepts apply to metal and non-metal facilities. For example, almost all non-coal minerals put fires out when they are mined, rather than pose risks of explosions or fires like coal. The resulting coal-oriented regulatory field applications are often costly and counterproductive at non-coal mines. Moreover, as the coal industry shrunk by two-thirds over the last decade, coal inspectors were transferred to non-coal MSHA positions, expanding the coal concept misapplications by MSHA. Improved training and industry experience for MSHA inspectors is critical for the long-term future of successful agency and industry interactions.

Constant Safety Commitment and Vigilance. Government data below shows that the industry’s safety record is far better than it was when Congress adopted the 1977 Act. In fact, our record is far better than the vast majority of other U.S. industries, perhaps removing the underlying rationale for the “coal” enforcement treatment of the stone, sand and gravel industry under the 1977 Act.

A key lesson of the past is that there can be no reduction in vigilance or commitment to safety and that continual improvement is critical. Accident prevention and risk reduction must be a daily, continuous priority, fed by improved technology, data analysis, and consideration of human factors. One tragic accident is one too many and almost certainly will create enforcement and liability risk, and perhaps add regulatory risks to the human tragedy that all of us seek to avoid.

As an example, while this article was being prepared, MSHA issued a new regulatory policy setting forth new “best practices” for wire rope inspections that resulted from two recent fatalities. It is likely that inspectors will seek to enforce the new “policy” and plaintiffs’ lawyers will try to use it to justify lawsuits, even though it did not undergo rulemaking. We expect the same from the January 2017 “Midnight” MSHA regulation, justified by references to prior but unrelated accidents, admitting no supporting safety data rationale, yet mandating pre-shift work area inspection expansions, and new recordkeeping and communications. While the rule is currently undergoing review under President Trump’s regulatory review policies, the rule’s future is not yet determined.

Even more concerning is the long-term, institutional refusal by MSHA to identify and seek to prevent the role of drug abuse in industry accidents. MSHA never mandates drug tests like DOT, and almost never issues a report that assigns accident cause to illegal drugs or prescription drug abuse, even when given confirming autopsy reports. Human factors, like drug abuse, while widely acknowledged to cause most accidents, are rarely addressed by MSHA accident investigations.

Know and Abide by the “Golden Rules.” Almost every week there are press reports of MSHA and OSHA severe monetary penalties, closure orders, investigations, and even criminal investigations and prosecutions of safety related incidents. Most of these enforcement cases involve accidents and/or false or misleading statements, document destruction or alteration, or admissions of knowing violations deemed willful. Using company policy, training, safety rules, standard procedures, effective supervision, workplace audits and employee discipline for rule violations, will prevent injuries, as well as reduce the risk of severe enforcement. At a minimum, such precautions will provide what MSHA deems “mitigating factors” for a defense. Knowing management’s individual duties and rights in responding to regulations, interview requests, and MSHA questions and document requests will substantially reduce the risks of inadvertent non-compliance, self-incrimination, and company “admissions.” Annual training on MSHA, for management personnel, is a lesson learned repeatedly.

Power Politics. Power politics is another lesson learned that can help reform MSHA. When the viability of the stone, sand and gravel industry was threatened in the early days of MSHA by inapplicable coal-based training mandates, the industry sued MSHA over the rules and mounted a national grass roots political campaign to be exempt from MSHA. With quarries in every Congressional District, the industry successfully lobbied Congress to remove it from MSHA jurisdiction through a restriction on MSHA expenditures. The resulting industry negotiations with MSHA produced substantially improved new training rules, accepted by the industry, and an agreement to return to MSHA jurisdiction. Moreover, the Congressional lobbying effort produced significant improvements in the agency’s respect for the industry. Understanding and applying this power politics lesson, when needed, can improve the industry’s future relationship with MSHA.

Combining these and other lessons learned over the past 40 years of MSHA experiences can and will significantly enhance the future of the industry and its personnel, while continuing to improve the industry’s safety performance.

MSHA Reported Metal/Nonmetal Fatalities