Congress included a special provision in the original Mine Safety and Health Act, intended to protect any person who reported an unsafe condition to the Mine Safety and Health Administration (MSHA). The statute 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 statute’s protections for people 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.
MSHA’s zeal for enforcement at the expense of prevention has resulted in additional headaches for operators — timely corrective repairs made in response to mandatory hazard reporting requirements becoming the basis for citations. For example, during a daily inspection of a coal mine, a miner reports a newly discovered hazardous condition to the operator and records the condition in the preshift book. A disgruntled employee reads the entry and calls MSHA with a complaint. MSHA arrives, and even though the condition was already corrected, the inspector writes a citation for the reported condition. Ordinarily, this would not result in a citation, but the inspector says he must issue one because a complaint was filed.
The statute is a “strict liability statute.” That means that every operator is liable for any violation on its property, regardless of circumstances. Even deliberate sabotage is no defense.
The statute was written in such a way that the inspector need not see the violation in order to cite it. Section 104(a) says “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.”
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, MSHA would exclude an operator’s voluntary corrective actions to enhance safety from being the basis for a citation, particularly given the statute’s protections for persons who repeat violations. Guess again. Recently, we have observed a disturbing trend in which inspectors rely increasingly on the same corrective/preventative actions the statute encourages, as the basis for writing citations.
A couple of examples take the “strict liability” so far that operators are actually discouraged from doing the right thing or defending themselves when they are right. We have long known that inspectors can write citations based on statements on Form 7000-1s, but lately inspectors have been taking actions far beyond that. Recently, 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. 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 using the wording of the poster, in part, as the basis for issuing the citation.
These examples raise a serious question of whether punishing mine operators for corrective actions they have already taken actually results in a net safety gain. If disseminating preventive information gleaned from prior events will itself result in enforcement action, what incentive exists for operators to be proactive about safety? The 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 defeats the purpose behind it. Issuing citations based on operators’ voluntary corrective actions defeats the entire purpose of the statute. It is a punishment for doing the right thing. 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.
Erik Dullea is of counsel in the Denver, Colorado, office of Jackson Lewis P.C. He practices in the regulatory compliance areas, with a focus on mining and transportation industries and government contractors.
