There Are Two Main Reasons MSHA Focuses On Unsafe Conditions, Not Unsafe Acts, And Those Reasons Are Related.
By R. Brian Hendrix
Unsafe acts – not unsafe conditions – cause the majority of accidents in the mining industry. That’s a fact not clearly reflected in MSHA’s Accident Investigation Reports. MSHA focuses almost entirely on unsafe conditions, not unsafe acts.
Below, I’ll explain MSHA’s way of thinking, and I’ll also describe how MSHA often concedes that an unsafe act is to blame for an accident without saying it (and how MSHA cites the operator for that act). More specifically, when MSHA cites an operator after an accident for a failure to properly task train a miner, chances are good that MSHA recognizes that the accident was caused by an unsafe act.
There are two main reasons MSHA focuses on unsafe conditions, not unsafe acts, and those reasons are related. First, in MSHA’s world, miners lack agency. To MSHA, miners are basically minors. The mine operator must “ensure” miners’ safety, and are the only actors responsible for preventing accidents. To claim otherwise is to “blame the miner.”
In reality, I’ve found miners to be a fiercely independent and resourceful. The nature of the work requires people who think independently and can adapt to dynamic mining conditions without a lot of direction.
Real World Example
Here’s a real world example: An MSHA inspector cited a client, a mine operator, for the condition of a highwall. He claimed that the hazard was obvious, that management knew about it and that management had unwarrantably failed to take action to address the alleged hazard. During the subsequent Special Investigation, the mine manager and the driller who was working below the highwall that day explained that they had both inspected the highwall before work commenced, discussed it and had both agreed that they had no concerns.
The Special Investigator asked the driller why he inspected the highwall. If the driller trusted the mine manager, why did the driller also inspect it? The driller’s response: “Because I was the one who was going to work under it.” He explained that he trusted the mine manager, but he also took personal responsibility for his own safety. The Special Investigator, who was also an experienced miner, later told me he really didn’t know why he was there. He couldn’t see why the inspector had cited an unwarrantable failure.
We all know miners are hardly children. The vast majority take personal responsibility for their own safety and for the safety of their co-workers. They trust, but they verify. Most are not shy about it either. MSHA’s view to the contrary is, in part, due to a seriously outdated “management vs. labor” approach to labor or industrial relations. This “us vs. them” thinking is still the lens through which many at MSHA still see the mining industry. Looking through the world through that lens has always produced a distorted view of reality, but never more so than today.
Part of it is also due to the decisions Congress made when it enacted the Federal Mine Safety and Health Act in 1977. Congress made mine operators strictly liable for violations. With one narrow exception applicable to coal and smoking, Congress did not authorize MSHA to cite individual miners.
However, Congress did not intend for MSHA to blind itself to the responsibility miners have for their safety and health. The reason for that is simple: the overarching purpose of the Act is to improve miners’ safety and health. If you ignore reality – the role and responsibility miners have to improve their safety and health – you will eventually end up at odds with the purpose of the Act. As I mentioned above, that is not the view of this administration. Today, MSHA seems unwilling to acknowledge the role unsafe acts play in accidents.
Accident Investigation Reports
This is clear from MSHA’s Accident Investigation Reports. MSHA investigates every accident, and produces an Accident Investigation Report on every fatality. “Management did not ensure” is the one phrase that I think you will find in every one of those reports. If everything you knew about mining fatalities came from these reports, you might very well conclude that “management” is omnipotent, all powerful.
Miners are present, but nothing they did or could have done would have prevented the accident. According to MSHA, if management had simply established “policies and procedures” to address whatever caused the accident, it would not have occurred. Management alone can prevent accidents, it seems.
What does MSHA do when it investigates an accident and it is clear that the accident was caused by an unsafe act? What does MSHA do when it knows that a miner made a conscious decision to act in an unsafe way? It cites management. If a miner acts in an unsafe manner, expect MSHA to conclude that management failed to properly task train the miner, specifically a failure to provide task training or effective task training.
We all know that Part 46 and Part 48 both require operators to provide miners assigned to a new task with training “in the safety and health aspects of the task,” but what’s a “task”? Under Part 46, a “task” is “a work assignment or component of a job that requires specific job knowledge or experience.” Part 48 defines “task” as a “work assignment that includes duties of a job that occur on a regular basis and which requires physical abilities and job knowledge.”
If the miner operator cannot produce records for or otherwise document the task training it provided, MSHA often assumes that no task training was provided.
MSHA is also quick to discount work experience, quick to assume that every task is a new task. After an accident, if the mine operator produces records showing that the miner in question had been task trained, MSHA may allege that the training provided wasn’t effective.
Indeed, MSHA has actually argued that the miner was not effectively trained solely because the miner did not perform the task in question consistent with his or her training. MSHA might also concede that task training was provided, but MSHA will allege that it did not include training on a very specific “safety or health aspect” of the task.
What do you do about this? Our advice is to document the experience that a miner has with various tasks. If a miner claims to have experience with a task, make sure that a competent person observes the miner safely performing the task and then document that observation.
Also, identify and describe the specific tasks you know that you will assign miners to perform and make sure that MSHA sees that list. Then, document all the task training that you provide to miners. After you task train a miner, have a competent person observe the miner safely perform the task and make a record of that. After an accident, good, detailed documentation won’t bar MSHA from questioning the effectiveness of the training you provide, but it will provide you with a much stronger defense.
R. Brian Hendrix is a shareholder in the Washington, D.C., Region office of Jackson Husch Blackwell LLP. He advises clients on matters involving environmental, health, and safety law, focusing on litigation, incident investigations, enforcement defense and regulatory compliance counseling. Hendrix has extensive experience with federal and state agencies and has represented a host of clients engaged in a wide variety of manufacturing, production, extraction and service-related industries.