Embarrassing MSHA Enforcement Actions

MSHA Has Issued A Number Of Citations Or Orders That Do Little To Advance Miner Safety And Health. You Won’t Believe Some Of Them.

No one is perfect, and humans make all sorts of mistakes for all sorts of reasons. Mine operators and miners make mistakes, and so do MSHA inspectors. Human nature, the complexity and dynamic nature of mining and the difficulties associated with the enforcement of broadly worded performance standards will occasionally lead to reasonable and even not so reasonable differences of opinion.

We often refer to an MSHA citation or order that is factually or legally without merit as “bad paper.” Bad paper is usually the product of a mistake, misunderstanding, miscommunication, etc. However, this is not a column about bad paper.

Instead, this column is about “embarrassing paper.” As I see it, there’s bad paper, and then there’s embarrassing paper. Embarrassing paper is a citation or order that does little to advance miner safety and health.

Embarrassing paper is a citation or order that tells miners and mine operators almost nothing about safety or health, but it says a lot about the issuing inspector. It is the type of citation or order that tells a miner that the issuing inspector cares about writing paper – enforcement – more than safety and health.

Here are a few examples of embarrassing paper:

  • An S&S citation for expired saline solution. Saline or eyewash solution has a use-by or expiration date. When an MSHA inspector found an “expired” bottle of eyewash at a mine, he cited it as a Significant and Substantial (S&S) violation. While I imagine that “expired” saline solution works just as well as new saline solution, it’s a good idea to replace expired first aid products. We can agree about that. However, even if the “expired” saline solution constituted a violation, it clearly wasn’t an S&S violation. The age of the saline in the bottle did not make it reasonably likely that a reasonably serious injury would occur (and never mind the fact that the bottle of saline solution was sitting right next to a sink). What signal did the issuing inspector send by issuing an S&S citation for expired saline solution?
  • How about an S&S citation for dried rodent feces? An inspector cited what he believed to be a small quantity of dried rodent feces on the floor of a closed, seldom accessed Conex storage container as an S&S violation. In the closing conference with the operator (and later during his deposition), he admitted that he could not even describe the hazard he had cited. In other words, he could not explain why or how the condition he cited was hazardous, much less reasonably likely to cause a reasonably serious injury. What did the inspector accomplish by issuing this citation and alleging that the violation was S&S? He was teaching that mine operator and the miners involved a lesson, but it was not a lesson about safety or health.
  • We all know that citations and orders must be posted at the mine. Section 109 of the Federal Mine Safety and Health Act provides that “[t]here shall be a bulletin board at such office or located at a conspicuous place near an entrance of such mine, in such manner that orders, citations . . . may be posted thereon, and be easily visible to all persons desiring to read them . . . .” The purpose of Section 109 is obviously to ensure that miners have an opportunity to review citations, orders, etc. Yet, an inspector cited a mine operator for violating Section 109 because the operator put copies of every citation and order in a notebook on a break room table used by miners because the bulletin board was not big enough to display all of the paper issued during that inspection. The mine operator made it easier for miners to review the citations and orders. When a miner at that operation reviewed that citation what do you think he or she thought about the inspector? About MSHA?
  • Ever heard of chainsaw chaps? Ever operated a chainsaw when you were not wearing chainsaw chaps? After a supervisor nicked his leg with a chainsaw while cutting a tree on mine property, an MSHA inspector cited the mine operator for a S&S, unwarrantable failure to comply with MSHA’s PPE standard because the supervisor was not wearing chainsaw chaps. The supervisor thought he was wearing the appropriate personal protective equipment at the time of the accident, but he was not wearing chainsaw chaps. In fact, he did not know anything about chainsaw chaps prior to the accident. Chainsaw chaps are not standard PPE in the mining industry, and MSHA had never issued any guidance directing miners to use chainsaw chaps. How would you have reacted to MSHA’s allegation that this violation was the result of “aggravated conduct constituting more than ordinary negligence” if you were the mine operator or the supervisor in this example? What did it tell the operator or the supervisor about the inspector’s or MSHA’s priorities?

One could argue about the fact of violation in these real-world examples. Even more questionable were the decisions to classify these alleged violations as S&S or to allege that the operator unwarrantably failed to comply.

Good, bad or embarrassing, these citations and orders, like all enforcement actions, may be conferenced and contested. There is a process for resolving the legal and factual questions that these citation and orders raise, albeit one that is time consuming and often expensive. However, that’s not the point.

A conference with the District or a contest proceeding may not repair the damage that is done by embarrassing paper. An inspector’s reputation in the industry and his or her relationship with miners and operators is primarily based on what the inspector does at the mine. Is he experienced and knowledgeable? Fair? Honest? Genuinely interested in promoting and improving miner safety and health?

Is he respected only because of his authority as an inspector – solely because he is an A/R – or do miners and mine operators respect him for more than his authority? Those are questions that are answered on-site, when an inspector is at the mine, and those answers are unlikely to be changed by the outcome of an informal conference or a decision by an Administrative Law Judge.
Inspectors who are respected for more than their authority, who have a reputation as knowledgeable, experienced and fair, are the most effective inspectors. First and foremost, they enforce, but they also educate.

Good, effective inspectors would be (and are) embarrassed by embarrassing paper issued by other inspectors. Good, effective inspectors (and there are a lot of those out there) are the inspectors who ask themselves “what will this citation tell the operator” or “what message does this send to the miners and mine operators” before they issue a citation. And, most importantly, they care about the answers to those questions.

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].

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