The Agency Often Neglects Or Undervalues Its Other Tools In Favor Of Enforcement. Why?
By Brian Hendrix
Without a doubt, MSHA is an enforcement agency. It walks, talks, thinks and acts like an enforcement agency. It sees itself as an enforcement agency. Enforcement is its favorite tool, and the tool that it uses most frequently. The trouble is that, after 40 years, it often neglects or undervalues its other tools in favor of the hammer of enforcement. Why?
When Congress passed the Federal Mine Safety and Health Act more than 40 years ago, it created an agency with a tremendous amount of enforcement authority and expected that agency to use it. A regular inspection of an underground mine that doesn’t produce at least some paper is the exception, not the rule, particularly at a large operation. That’s how it works, and how Congress intended it to work.
MSHA’s work cycle has always been inspect, cite/penalize, repeat. Sure, MSHA has and continues to investigate accidents, promulgate new regulations, issue guidance, provide compliance assistance, etc., but those efforts are either directly related to or take a back seat to enforcement.
So, MSHA has other tools in its toolbox, but enforcement is its favorite tool, and the tool that it uses most frequently. It should come as no surprise then that MSHA over-relies on enforcement while neglecting its other tools. If you study human behavior, that’s what you’d expect.
We all know that humans do not always act or make every decision rationally, after carefully considering all of the relevant, objective data and information. We all use cognitive shortcuts or develop our own subconscious decision-making patterns to make decisions and act. Often, these shortcuts lead to more efficient, effective decision-making and actions. On occasion, they lead to something else. We make mistakes, errors in judgement, bad decisions.
Behavioral scientists refer to these shortcuts or errors in thinking and decision-making as “cognitive biases” and have identified dozens of different biases. One is “Maslow’s Hammer.” You may not be familiar with that label, but you’re almost certainly familiar with the traditional description of the concept:
When all you have (or think you have) is a hammer, you tend to see everything as a nail.
In other words, “Maslow’s Hammer” is an over-reliance on a familiar tool or approach while ignoring other tools or under-valuing alternative approaches.
Here’s what this looks like in practice: MSHA receives all sorts of hazard complaints. It sends an inspector to personally investigate almost all of them. MSHA’s current policy is to investigate every complaint, regardless of who makes it or how the complaint is made. If a complaint is potentially, possibly, kind of, sort of related to safety or health, MSHA sends an inspector out. One common type of complaint that MSHA receives concerns drug or alcohol use, e.g. “miners are smoking meth at the ABC mine.”
Almost all of these complaints lack merit. Nevertheless, any illegal drug or alcohol use at a mine is unacceptable. With a few exceptions, if you work at a mine, you work in a safety sensitive position. In that environment, illegal drug or alcohol use puts that miner and everyone around that miner at risk.
There’s been a serious opioid epidemic in this country for years now, and it’s getting much worse. During the 12-month period ending in April of this year, the CDC estimated that drug overdoses killed 100,306 people. That’s more than double the number killed in automobile accidents every year and an increase of 28.5% from the 78,056 deaths during the same period the year before. Sadly, that epidemic has touched every industry, including the mining industry.
All of this is to say complaints about drug or alcohol are serious. So, what does MSHA expect of an inspector assigned to investigate a complaint like the one above?
As far as I know, MSHA hasn’t answered that question or shared the answer with stakeholders. There are a lot of reasons for that, but Maslow’s Hammer offers a partial explanation. If you think almost solely in terms of enforcement, your first thought when approaching a problem like this is “How do I cite it?”
At a mine, MSHA’s enforcement options when it comes to drugs and alcohol are somewhat limited. MSHA knows that its enforcement hammer isn’t the right tool for this particular job. Enforcement won’t address the problem, so the problem isn’t high on MSHA’s list.
MSHA doesn’t appreciate the extent to which it can address the problem with its other tools. For example, MSHA could easily develop guidelines or best practices for its inspectors on how to investigate hazard complaints related to drugs or alcohol.
MSHA could answer the most obvious and frequently asked questions and train its inspectors to recognize the signs of use and impairment.
- Does MSHA expect inspectors to search every locker? Search miners’ personal vehicles? Pat down miners? Have them turn out their pockets?
- When? At the beginning of the shift, during or at the end of shift?
- Should the inspector contact the state? Contact local law enforcement? When?
- What type of assistance should the inspector ask for? At least on the surface, a drug dog can search a lot of territory in a non-invasive way in a very short period of time.
- Should the inspector ask the operator to drug test miners? What does the inspector do with the results if the operator agrees or simply offers to test? Who should be tested?
- Does a positive urine test for marijuana or THC mean that the miner was impaired or under the influence? How reliable are those tests?
- An operator should have a drug and alcohol policy and a drug testing policy. What should those policies say?
- What does MSHA expect – not require – of mine operators when it comes to drugs and alcohol.
- What are the best practices?
Inspectors and operators are asking these questions right now. Today. It would not be difficult for MSHA to provide answers. Providing answers – guidance and training – isn’t enforcement. Guidance and training are different tools, but they are the tools MSHA could and should use.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected]