The Disturbing Trend Of MSHA Inspectors Relying On Corrective And Preventative Actions As Basis For Citations.
By Mark Savit, Jackson Lewis P.C.
One of the hallmarks of good safety policy is the ability of anyone, from rank and file miners to the CEO, to pay attention to unsafe conditions or actions and take action to address those conditions and ensure they do not recur.
The corrective action might involve recording the condition in a required book or record, tagging out a piece of equipment, taking disciplinary action and sometimes, if the company is conscientious, using meetings, posters and handouts to describe the problem and providing information to try and prevent it from happening again.
In fact, when Congress passed the original Mine Safety and Health Act, Congress included a special provision in the Act that is intended to protect any person who reported an unsafe condition to MSHA. The Act allows persons who bring an unsafe condition or violation to MSHA’s attention anonymity and protection from retaliation if the persons’ employer takes an adverse action against them because of their report.
MSHA’s mission statement is consistent with the Act’s protections for persons who report unsafe conditions. The purpose of MSHA is “to prevent death, disease and injury from mining and to promote safe and healthful workplaces for the Nation’s miners.”
But lately, it seems, MSHA has taken the position that writing a citation is more important than protecting those who take an extra step to make sure that hazards are eliminated and violations aren’t allowed to linger or be repeated.
You see, the Act is what they call a “strict liability statute.” That means that every operator is liable for any violation on its property no matter why that violation happened. Even deliberate sabotage is no defense.
It is also clear that the Act was written in such a way that the inspector need not see the violation in order to cite it. For example, Section 104(a): “If … an [inspector] believes that an operator … has violated … any mandatory health or safety standard … he shall, with reasonable promptness, issue a citation to the operator” (emphasis added).
So, what can the inspector use as a basis for his or her “belief” that an operator “has violated” a mandatory standard? One would think, given the Act’s protections for persons who report violations, that MSHA would exclude the correctivee actions taken by mine personnel to promote safety as a basis for a citation.
Guess again. Recently we have observed a disturbing trend in which inspectors rely increasingly on the same corrective/preventative actions the Act encourages, as the basis for writing citations against the mine operators.
A couple of examples seem to take the “strict liability” so far that it actually discourages operators from doing the right thing, or even defending themselves when they are right. We have long known that inspectors can write citations based on statement on form 7000-1s, but lately inspectors have been taking actions far beyond that.
Recently for instance, inspectors were investigating an accident in which a miner – working without fall protection – fell from a belt. In an effort to minimize any enforcement action that might be taken as a result of the accident, the operator’s representative told the inspectors that the company had a strict policy against working on the belt without fall protection.
The inspector logically asked whether the operator had any disciplinary records to back up that claim. The operator’s representative responded affirmatively, and showed the inspector two forms showing that the operator had fired two prior miners for working on a belt without fall protection.
Rather than congratulating the operator for having a vigorous safety program, the inspector wrote two additional citations based on the conduct that resulted in the firing of the two miners.
Another similar incident occurred more recently. During the course of a routine investigation, an inspector noticed a poster on the bulletin board that described a “near miss” incident, and the poster gave instructions on ways to avoid similar incidents in the future.
Once again, rather than congratulating the operator on its proactive safety program, the inspector proceeded to write a citation alleging that a violation had caused the incident and used the wording of the poster, in part, as the basis for issuing the citation.
MSHA technically has the authority to write citations for violations that occurred in the past, regardless of the reasons why the violations might have occurred. After all, the Act is both backward looking and based on strict liability.
But one has to wonder whether punishing mine operators for corrective actions they have already taken actually results in a net safety gain. If disciplining employees for safety violations or disseminating preventive information gleaned from prior events will itself, result in enforcement action, what incentive exists for operators to be proactive about safety?
The tragic irony is that from a compliance and liability standpoint, operators who choose not to take any such actions are better off than those operators who do take action.
There is a point at which vigorous enforcement can defeat the purpose behind it. The actions described above are cases in point. The issuance of citations based on voluntary corrective actions taken by operators defeats the entire purpose of the Act. It is no less than punishment for doing the right thing.
We are on the right side of this argument. There is no reason for MSHA to take the doctrine “enforcement over all” view that results in these types of actions.
Our industry is on the right side of this issue and it’s time to take a stand. Otherwise, the beatings will continue until morale improves.