By Brian Hendrix
The Mine Safety and Health Administration’s (MSHA) primary purpose, as stated by Congress, should be the same as all in the mining industry, to protect “the health and safety of [our] most precious resource, the miner.” However, like all bureaucratic organizations, MSHA is subject to the Iron Law of Bureaucracy. When MSHA works to violate the Iron Law or simply resists its inexorable pull, MSHA works for the health and safety of the miner. When it complies with the Iron Law, MSHA works for MSHA.
What is the Iron Rule of Bureaucracy? As Dr. Jerry Pournelle first explained it: “The Iron Law states that, in all cases, the second type of person will always gain control of the organization, and will always write the rules under which the organization functions.”
While I am skeptical of absolutes like “in all cases” and “will always,” our history with bureaucracy in this country seems to confirm the overall point of Dr. Pournelle’s Iron Law. I tend to think of the Iron Law as a rough measure or gauge of an agency’s effectiveness. An agency like MSHA is, at times, more controlled by those working for MSHA than the miner. At other times, it is more controlled by those working for the miner than MSHA. Thinking back on 2014, a couple of simple, uncontroversial examples of MSHA working for MSHA come to mind. These examples do not involve accidents or injuries to miners and don’t involve weighty or important issues. The penalties are relatively small. Nevertheless, these are the “little” events and actions that you would expect to see from an agency that’s controlled more by those working for MSHA, not the miner.
How about an MSHA inspector citing a mine operator for recording training on an MSHA 5000-23 form? An MSHA inspector cited a mine operator for a violation of 30 C.F.R. Part 46 when he discovered that the mine operator used MSHA’s form to certify the completion of annual refresher training. There was no question that the operator provided annual refresher training to miners; the miners were properly trained. According to this MSHA inspector, under Part 46, operators must record and certify the training on a form that lists the names of the instructors who provided the training and the duration of the training. The inspector issued the citation because the form used by the operator did not contain this information.
The inspector apparently did not care that the operator was using an MSHA 5000-23 form or that MSHA’s form does not have space or “indicate a space” for that information. He interpreted Part 46 to require that information be listed on the form, so he cited the operator. If you were ever looking for a citation that does virtually nothing to advance the cause of miner safety and health, this is a good one.
Perhaps we could charitably assume that the operator caught the inspector who issued this citation on a bad day? As it turns out, MSHA refused to vacate it, and then decided to spend valuable resources actually litigating it before the commission. Thus, we can’t simply blame the inspector for this citation. No, this was MSHA’s decision.
Who benefits from decisions like this? Not the miner. The only “benefit” I can see accrues solely to MSHA itself. It is enforcement solely for enforcement’s sake. It is a demonstration to superiors that records were scrutinized and action was taken. In other words, it is nothing more than a box checking exercise to satisfy the bureaucracy, not serve the miner.
Adding insult to injury, an administrative law judge actually affirmed the violation. MSHA won, but the “victory” should have embarrassed MSHA. As the judge noted: “I recognize that this case is before me because [the operator] relied on common sense, rather than a lawyer…Perhaps [the operator] would have provided the required information earlier if it had engaged in a detailed, legal analysis of an ambiguous regulation. Instead, [the operator] trusted that MSHA Form 5000-23 would contain all the elements for compliance. It may be time for MSHA to reconsider its earlier determination and provide the regulated community with a straightforward, sensible form…[T]he form’s design predictably misleads operators into violating the standard…Despite MSHA’s determination that MSHA Form 5000-23 was not ‘so confusing as to be unusable,’ the secretary may be well advised to adopt loftier goals than providing a ‘[n]ot unusable’ form.”
Why don’t I think that MSHA will learn from this and see the error of its ways? First, this is hardly the first decision I’ve read in which a judge or the commission questions MSHA in this fashion, and I have hard time recalling an instance in which MSHA has responded in a constructive way.
Second, a month or so after the decision described above, MSHA cited a mine operator related to the one above for a failure to adequately barricade or post warnings around a sinkhole located in an inactive area of mine property after an individual who was fleeing from the police at night entered the mine property and fell into the sinkhole. The individual had stopped his car and fled on foot when he saw that the police had set up a random checkpoint on the public road adjacent to the mine property. After he was fished from the sinkhole and treated for his injuries, he was arrested on drug charges.
As soon as the operator found out about this incident, it contacted MSHA. Large sinkholes tend to be quite obvious and easily avoidable unless, of course, one is fleeing from police, at night through unfamiliar private property. Nevertheless, MSHA cited the operator and assessed a $2,106 penalty.
Do you think this citation and the penalty advanced the cause of miner safety? Was this a good use of MSHA’s resources? I suppose reasonable people could disagree about the answers to those two questions, but it strikes me that this citation and the penalty are good examples of MSHA working for MSHA, not for the miner.
There are a lot of good MSHA inspectors out there who work hard to resist the institutional impulse — the Iron Law of Bureaucracy — to “work for the organization itself,” rather than for the “actual goals of the organization.” In 2015, I hope that MSHA will work more for miners than it works for itself.
Brian Hendrix is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. Hendrix advises clients on matters involving environmental, health, and safety law, focusing on litigation, incident investigations, enforcement defense and regulatory compliance counseling.