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MSHA's Dilemma

Spring 2005

Co-Authors: Tim Means and Linda Lavache.

The Mine Safety and Health Administration (“MSHA”) faces a dilemma. You won't hear anyone there admit it, but MSHA has a problem. On the one hand, the agency created to rescue the nation's miners from the most dangerous job in the country has a great success story to tell. On the other hand, the agency's employees may fear that they could become victims of their own success, if word gets around.

Between the safety efforts and investments of the mining industry, and the training in and enforcement of the tough occupational safety and health standards that the Mine Safety Act mandates, mining fatalities and lost time injuries have plummeted. Mining has dropped right off the list of the most dangerous occupations in the country and now trails manufacturing, construction, transportation, and other industries. A person is much more likely to be injured fishing or farming than mining.

MSHA should be taking great pride in this accomplishment and certainly deserves much of the credit. MSHA should be heralding its success by issuing reports, holding self-congratulatory public hearings, and issuing press releases. But MSHA is not doing that. Although it does, from year to year, proclaim success in reducing injuries and fatalities, MSHA is still not telling the world the good news about how safe mining has become. It is the National Mining Association, not MSHA, that is issuing those press releases.

MSHA may just be afraid that, if the good news gets out, it will have put itself out of business and get absorbed into its sister agency, the Occupational Safety and Health Administration (“OSHA”). So, instead of spreading the good news about mine safety and health, MSHA is instead publishing its annual surveys showing which standards mine operators are violating most often. Sad, but true, and it tells you a lot about the persistent mentality that infects MSHA, even after several years under the progressive leadership of Dave Lauriski. Lauriski tried to refocus the MSHA culture to give training and technical assistance at least equal billing with enforcement in the agency's priorities. Although some districts have heeded the message more than others, the agency overall still seems to measure success too much like parking meter readers do, ticket by ticket. The recent statistics MSHA has released on which standards it cited the most in 2004 reflect that mentality, but they also reflect the tension between that mentality and the unheralded success that the industry and MSHA have accomplished in achieving real safety. MSHA's problem is that there are fewer and fewer legitimate violations to cite, but many at MSHA still tend to measure its success by the number of violations cited.

Citation Inflation

One of the deceptions MSHA's statistics perpetuate about all the citations it continues to write (so no one will think for a minute that we don't need MSHA as much as ever to hold back the flood of deaths and injuries that they may like us to think would otherwise result) is what so many of these citations entail. A disturbing number of the citations MSHA is issuing these days are a little more than junk: that is to say, many are, at best, subjective quibbles with, at most, a tangential connection to safety.

A few examples from recent cases show what is going on in an industry that has internalized the safety values on which the Mine Safety Act is grounded, but continues to suffer an incessant stream of MSHA enforcement actions and the bad press that goes with that. As shown below, MSHA inspectors still seem to need to justify their existence by issuing tons of citations, even though the hazardous mining workplaces that brought MSHA into being have largely become a thing of the past, at least outside the mom-and-pop mines and other small companies that operate at the margin.

This is evidenced by two of the standards that have been at or near the top of MSHA's most-cited lists (“MSHA's Greatest Hits”) in recent years. These standards share an essential characteristic: an amorphous general scope which mandates good behavior (without necessarily implicating any real hazard), and whose enforcement often depends on subjective judgments. As a result, these standards essentially allow MSHA inspectors to find new violations in workplace conditions that are, as a practical matter, safe and have long been considered in compliance. While the abatement of these conditions may marginally enhance safety or health, the cited conditions or practices are not clearly hazards prohibited by federal law. The result in all too many cases is ambush enforcement in which mine operators are cited and penalized for allowing relatively benign conditions to occur without any prior notice or reason to believe that they were prohibited.

General Safety Defects Standard

Consider, for example, the mandate of 30 C.F.R. § 56/57.14100(b) that “[d]efects on any equipment . . . that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” That tops MSHA's 2004 Greatest Hits lists for surface metal and underground stone, while its § 77.404(a) analog tops the list for surface coal mines. Section 14100(b) also ranks in the top five for every other kind of mine as well (except that its underground coal analog, § 75.1725(a), drops down to ninth most frequently cited). Before one worries that all of the nation's mines are still fraught with the perils of all this unsafe equipment, we have news for you. In our experience in defending mine operators against unwarranted or excessive MSHA enforcement actions, we've learned that this standard is widely abused by MSHA inspectors as a way to meet their citation quotas (no, we don't know for a fact that there are any formal quotas, but it is obvious that there are expectations . . .) with remarkably little correlation with mine safety.

How do they do it? Some inspectors will cite under § 14100(b) or its analogs conditions that may have existed for years and were not recognized as falling within § 14100(b)'s scope, or conditions that continually occur at mines (and other workplaces) that seem routine, not safety hazards. If the inspector can articulate a hypothetical chain of causal connections by which the condition can “affect safety” if certain prerequisite events occur, even if the condition defies any reasonable definition of a hazard to miners, that seems to be all inspectors feel they need to justify the citation (and most citations never get contested, at least not past a health and safety conference with the district office). A small oil leak from a motor, a missing plastic cover on an air pressure gauge, a missing label, a non-working auxiliary light on a forklift mast – these are but a few of the kinds of “hazards” that we've been seeing cited by MSHA under § 14100(b), § 75.1725(a), or § 77.404(a).

Operators need to stop acquiescing in these junk citations, lest they and the whole industry continue to suffer from an abysmal history of violations. These citations are often obviously defective. For example, a condition does not legally constitute a violation of § 14100(b) unless three elements are present: (1) there is a defect on equipment, machinery, or tools; (2) the defect affects safety; and (3) the defect has not been corrected in a timely manner. If any of these elements is missing, there is no violation of § 14100(b). This standard was promulgated to encourage mine operators to correct dangerous equipment defects promptly in order to eliminate real hazards that could harm a miner.

One context in which we have observed MSHA improperly apply the standard is in situations where a defect exists but does not “affect safety.” For example, suppose an inspector cites a mine operator for a malfunctioning strobe light on a forklift used in a lighted warehouse (not a required safety device, but an extra safety measure added by the operator). Of course, the Mine Safety Act case law does recognize a general principle that a broken safety device, even if it is one not required by law, can be a violation. That doctrine, however, depends on whether a miner could be endangered by assuming that, since the safety device was there, it would work, and then relying on it to his detriment. Unlike with some types of safety devices, there could be no mistaken assumption that the strobe light was working because it would be apparent to everyone that it was not and could not be relied on. These facts, plus a little common sense, demonstrate that such a malfunctioning strobe light is not the kind of defect “affecting safety” of miners that the Mine Safety Act prohibits. But this type of condition has been cited repeatedly by MSHA.

A recent Commission decision involving a § 77.404(a) citation highlights MSHA's overzealousness in citing such amorphous “safety defects.” In U.S. Steel Mining Co., an MSHA inspector had cited a coal mine operator for a half-inch hole in an enclosed conveyor on a granular coal injection system, on grounds that it could cause a combustion hazard if oxygen entered the conveyor through the hole. The Administrative Law Judge (“ALJ”) bought MSHA's argument, but the Commission remanded the decision to the ALJ for further consideration, asking why, among other things, if MSHA thought this single half-inch hole was such a hazard, MSHA had previously not cited the existence of twenty-eight such holes, but instead waited eleven months to give the operator a report analyzing their effect (a report that raised concerns about nitrogen inside the conveyor escaping out of the hole, but said nothing at all about the danger of a combustion hazard). That MSHA will issue a citation for a half-inch hole from a single missing bolt on a conveyor which contains thousands of such bolts shows that MSHA inspectors will go to great lengths to “find” such “violations.” When MSHA's past practice, or plain common sense, belies the existence of a safety hazard, those citations may be ripe for contest.

Besides showing that a defect does not affect safety, mine operators may sometimes be able to defeat a § 14100(b) citation when there is no evidence that the defect was not corrected in a timely manner – the third element of the standard. Even if the inspector has shown that there is a defect and the defect affects safety, there is no violation unless the inspector can demonstrate that the defect was not corrected in a timely manner. MSHA often overlooks this part of the standard, and many citations are improperly issued as a result. For example, in Lopke Quarries, Inc., the Commission upheld a ruling by the ALJ that where there was no evidence indicating when the defect occurred or that the operator knew of the defect, there was no violation. In other words, it is not enough to prove a defect affecting safety, because MSHA cannot sustain a violation unless it can prove that the operator had failed to correct the defect in a timely manner. Of course, in a surprising number of cases, MSHA cannot even show a defect affecting safety to begin with, much less when it developed.

“Housekeeping” Standard

Another example of a standard that has earned its place on MSHA's Greatest Hits list due to its susceptibility to overuse abuse is 30 C.F.R. § 56/57.20003(a) – MSHA's general “housekeeping” standard. It is in the top six violations for every type of mining except surface and underground coal (and, of course, they have their “accumulations” standards curse to contend with). Section 20003(a) provides: “[w]orkplaces, passageways, storerooms and service rooms shall be kept clean and orderly.” The main purpose of the housekeeping standard is to make workplaces, travelways, and storerooms generally safe to miners accessing those areas. The standard sets a benchmark (“clean and orderly”) which requires that specific areas (“workplaces, passageways, storerooms and service rooms”) be kept free of hazards. Yet, MSHA inspectors are citing mine operators not only for conditions that, at most, fall into a gray area where reasonable people could differ, but also for conditions that simply do not violate the standard any way you look at it. And often they get away with it. How are inspectors using the housekeeping standard to accomplish this feat?

One way is by twisting the part of the standard that defines the areas of the mine to which the standard applies. Perhaps surprisingly, this element of the standard has proven fuzzy – at least some MSHA inspectors make it so – even though the areas to which the standard applies are specifically named in the text. We have observed MSHA inspectors overreach by citing areas that are simply not one of the four kinds of places specified in the standard. For example, if trash is located in an outdoor area that is not a workplace or passageway, and clearly is not a storeroom or service room, is there a violation? Most likely not – if the outdoor area does not fit within one of the four categories of places identified by the standard, it is outside the scope of the standard, even if it is not “clean and orderly.” Congress was concerned about hazards to miners in areas where miners work and travel – but MSHA inspectors will issue housekeeping citations for conditions that, while perhaps not picture-perfect, fall outside the scope of the standard that defines a federally mandated protection against occupational hazards.

MSHA inspectors may also try to stretch the “clean and orderly” part of the standard. What is clean and orderly is subjective in many instances – where one person may find an area reasonably clean and orderly, another (if he's an MSHA inspector) may find a violation. While there is inherently a lot of gray area, at some point on the continuum reasonable people will have to agree that a given condition simply does not present a hazard that comes within the scope of the regulation. For example, would a tree with branches growing into an outdoor catwalk violate Section 20003(a)? Although a catwalk may be within the scope of the regulation because it is arguably a passageway, does the fact that the branches grow into the walkway mean, without more, that the catwalk is not “clean and orderly”? What would the putative hazard to miners be – whiplash from the branches? Examples of proper citations under the housekeeping standard might be a knee-deep accumulation of dust in a work area, or a large pile of trash blocking a passageway. The housekeeping standard is intended to prevent conditions in which miners would trip, slip, or crash into things that do not belong in a work area or travel area, but abuses by MSHA abound.

Operator Response

There are many arguments a mine operator can make when faced with a citation under one of these vague standards that MSHA is stretching to bolster its enforcement statistics. Aside from showing that the cited condition or practice does not fall within the literal scope of the standard, or that it does not present the type of hazard the standard was intended to protect against, in some cases, the mine operator might also be able to make a “fair notice” argument, especially if the particular condition has existed for a long time and has been inspected by MSHA in the past without being cited.

Fair notice cases have a distinguished lineage, as courts have sometimes found the agencies guilty of due process violations when they penalize conduct that was not clearly prohibited by an ambiguous standard. This longstanding doctrine was meaningfully translated into a common mining context in Higman Sand & Gravel a couple of years ago. There, the ALJ vacated multiple citations alleging inadequate guarding on the basis of fair notice, as shown principally by the fact that the cited conditions had existed for many years without being cited by MSHA. Higman is a guarding case, but the basic principle – that mine operators are entitled to fair notice – applies in the § 14100(b) and § 20003(a) contexts as well. Indeed, it applies in the context of a surprising array of MSHA standards. Although it is only an unreviewed ALJ decision, Higman is persuasive authority that can assist in a variety of circumstances where MSHA inspectors have gone overboard in their quest to protect the nation's miners simply by issuing lots and lots of citations.

* * *

MSHA's recent publication of its Greatest Hits lists is sad testimony to an agency that too often misses the forest for the trees. Mining is becoming one of the safest occupations in America, yet still gets no respect for this accomplishment. MSHA, perhaps out of some unarticulated concern that it will be rewarded for its success in helping the industry create safe workplaces by being merged into OSHA, continues to focus its full-court enforcement press. But, because most mines today are safe and healthful places to work, where mine operators and their safety professionals vigilantly guard against the safety and health hazards of yesteryear, MSHA increasingly maintains its intensive enforcement pace by having to find violations where none before would have been. Making increasing use of the broad and amorphous language of some of the more open-ended standards, like those dealing with “defects affecting safety” and good “housekeeping,” inspectors continue to find ways to issue citations that they hope will statistically justify their existence. In order to stop giving de facto credibility to the resulting image of a still-dangerous industry, operators need to stop paying civil penalties to buy peace, and to start contesting these manufactured violations. They will be pleasantly surprised, if they do, because so many of these citations are not worth the paper they are written on.

Thomas (Tim) C. Means
Retired Partner – Washington, D.C.
Email: tmeans@crowellretiredpartners.com