Out of the blue, MSHA cites an operator, claiming that the operator should have known that a condition or practice violated a standard. MSHA itself — dozens of different inspectors and their supervisors — was unquestionably aware of the condition or practice for years or decades.
Now, the alleged violation must be abated, writes Brian Hendrix, in a blog for law firm Husch Blackwell.
“Abatement will require significant changes, eg changes to the ventilation system, mine plan or to the type or equipment used at the mine.
A citation like that is all sorts of things. Frustrating, counter-productive and unprofessional are apt descriptors. A citation like this also used to be fairly rare. That’s changed. Over the last year or two, we’ve seen several. A recent Commission decision provides us with a colorful example.
The case involved a citation issued to an operator for using polyurethane foam to seal stoppings. The operator had used the foam in the same manner for 30 years on hundreds of stopping, dozens of different inspectors had inspected the stoppings and MSHA approved the practice (described in the mine’s plan) twice a year.
The issuing inspector had no experience in the mining industry. He hadn’t spent any real time underground. He did have a Ph.D. in mining engineering, and he spent time at the Mine Academy. This was his very first inspection, and he was accompanied by the Assistant District Manager. The inspector actually missed the violation. The ADM pointed it out and told him it was a violation, so the inspector just issued the citation.
For his part, the ADM had personally inspected that mine “multiple times” over the years, and he was aware of the condition. In fact, the ADM was just one of the many inspectors who had inspected the mine without citing it.
Why did the ADM and all of those other inspectors miss it? Under oath, the ADM testified that all of the other inspectors—dozens of them—missed it because they were inattentive, untrained or inexperienced. Even worse, either the ADM or another inspector testified that other inspectors were not smart enough to understand the requirements of the standard.
Unfortunately, an administrative law judge affirmed the citation.
In his decision, the judge didn’t see fit to mention that MSHA’s witness had testified that inspectors missed the violation because they weren’t smart enough to spot it. However, on appeal, the Commission definitely saw fit to mention this claim. In a remarkable decision, the two Commissioners who voted to reverse the judge wrote:
In an effort to rebut the significance of these hundreds of inspections by numerous inspectors, during rebuttal testimony, [the ADM] stated that the regional MSHA inspection unit relied on a number of inexperienced inspectors that were “not … intelligent enough” or may not have had adequate training and may not have been paying attention to the perimeter of the stoppings. MSHA’s denial of its acceptance of [the mine operator’s] usage of polyurethane foam by disparaging its own inspectors is an unseemly effort by MSHA to sacrifice the integrity and ability of its inspectors in order to sustain one citation. It is shameful and, more importantly, wholly unwarranted. On cross-examination, [the ADM] conceded that many experienced inspectors regularly inspected the mine in the years prior to the issuance of the citation. Thus, it is clear that MSHA had experienced inspectors who, by failing to cite the operator for over 30 years, accepted [the mine operator’s] usage of polyurethane foam.
In a feat of Olympian disingenuity, MSHA asks that we defer to its wisdom in this case while deriding some of its own employees for lacking intelligence or judgment. Similarly, the agency asks that we defer to it now, while urging that the agency’s own “acceptance” of the practice at issue here for more than three decades should not determine what [the standard requires].
Two other Commissioners voted to affirm the citation, although one took the opportunity to admonish the agency:
[The] testimony that other inspectors did not cite the condition because they were not intelligent enough to notice is offensive to the skilled, knowledgeable, and dedicated inspectors employed by MSHA and is likely not a principle the Secretary of Labor wants to extend into other cases.
In fairness, MSHA probably does not want to extend this “principle” into other cases. The question is whether it will. MSHA argued that its own people weren’t smart enough to do their jobs properly and claimed that they lacked the necessary training and experience, and MSHA still prevailed before the Commission. MSHA shouldn’t have issued the citation in the first place, but it did. It should’ve been embarrassed by it.
It wasn’t, and it’s not. What lesson do you think it’ll take from the Commission’s decision?”
