By R. Brian Hendrix
None of us are perfect. In every human endeavor, mistakes are made, for all sorts of reasons. Mine operators and miners make mistakes, and so do Mine Safety and Health Administration (MSHA) inspectors. Human nature, the complexity and dynamic nature of mining, and the difficulties associated with the enforcement of broadly worded performance standards will inevitably lead to reasonable and even not-so-reasonable differences of opinion on occasion.
A citation or order that is factually and/or legally without merit in some way is often referred to as “bad paper.” Bad paper is the product of a mistake or worse. This column is not about bad paper, i.e.,variable frequency drivevariable frequency drive the reasonable differences of opinion we have with MSHA or even the mistakes that we all – mine operators, miners and MSHA inspectors – make. Instead, this column is about citations and orders that qualify as “embarrassing paper.” What is embarrassing about embarrassing paper is that it does little to advance miner safety and health. Embarrassing paper tells miners and mine operators something about the issuing inspector or about MSHA. It tells them very little about safety or health.
Here are a few examples: Saline or eyewash solution, like most products, has a use-by or expiration date. When an MSHA inspector found an “expired” bottle of eyewash, the inspector cited it as a significant and substantial (S&S) violation. While the expiration date on the bottle had passed, it is hard to imagine how the age of the eyewash made 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). While I imagine that “expired” saline solution works just as well as new saline solution, it is a good idea to replace expired first-aid products. That said, what signal did the inspector send to the operator by issuing an S&S citation for expired saline solution?
In another case, an inspector cited what he believed to be a small quantity of dried rodent feces on the floor of a closed, seldom-used Conex storage container as an S&S violation. In the closing conference with the operator (and, later, in a deposition), he admitted that he could not even describe the hazard he had cited. In other words, the inspector 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 taught the mine operator a lesson, but it was not one 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 actually made it easier for miners to review the citations and orders. When they reviewed the failure-to-post citation, what do you think the miners thought about the inspector? About MSHA?
Ever heard of chainsaw chaps? Ever operated a chainsaw when you were not wearing chainsaw chaps? After a mine manager nicked his leg with a chainsaw while cutting a tree on mine property, an MSHA inspector cited the mine operator for an S&S, unwarrantable failure to comply with MSHA’s personal protective equipment (PPE) standard because the supervisor was not wearing chainsaw chaps. MSHA also assessed a $50,000 penalty for the alleged violation. Chainsaw chaps are not standard PPE in the mining industry and MSHA had never issued any guidance requiring the use of chainsaw chaps. How would you have reacted to MSHA’s allegation that the 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 all of these citations and orders. 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 citations and orders raise. That is, however, not the point.
A conference or a contest proceeding is unlikely to 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 the answers are unlikely to be much affected 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. They 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 and miners” or “what message does this send to the miners and mine operator” before they issue a citation. And, most importantly, they care about the answers to those questions.
Brian Hendrix is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. He advises clients on matters involving workplace safety law, focusing on litigation, incident investigations, enforcement defense and regulatory compliance counseling.