by brian hendrix

Without a doubt, the Mine Safety and Health Administration (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 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 coal 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, if MSHA has other tools in its toolbox, but enforcement is its favorite tool, then it should come as no surprise that it neglects the other tools.    

Humans do not always act or make every decision rationally, after carefully considering all of the relevant, objective data and information. They use cognitive shortcuts or develop subconscious decision-making patterns to act. Often, these shortcuts lead to more efficient, effective decision-making and actions. On occasion, they lead to mistakes, errors in judgment and 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.”  The basic concept is that when someone thinks that all they have  is a hammer, they tend to see everything as a nail.

In other words, “Maslow’s Hammer” is an overreliance 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. One common type of complaint that MSHA receives concerns drug or alcohol use, e.g., “miners are smoking meth underground at the ABC coal mine.”

Almost all of these complaints lack merit. Nevertheless, any illegal drug or alcohol use at a mine is unacceptable. With a few exceptions, miners work in a safety sensitive position. In that environment, illegal drug or alcohol use puts that miner and everyone around that miner at risk.

All of this is to say complaints about drug or alcohol are serious. So, what does MSHA expect of an inspector assigned to investigate this type of complaint?

MSHA hasn’t answered that question. Maslow’s Hammer offers a partial explanation. If one thinks almost solely in terms of enforcement, the first thought when approaching a problem like this is “how do I cite it?” At a coal 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 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 in Husch Blackwell’s Washington, D.C., office specializing in labor and employment law with experience in energy industries. He can be reached at
Brian.Hendrix@huschblackwell.com
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