Rock Law

| Published on May 8, 2011

Looking Back

It’s time to set aside hyperbole and focus on whatever drives safety reform.

by Mark Savit

I am sad to say that this will be our last column in Aggregates Manager. We started writing for the magazine almost at the same time it was founded. During the 15 years we have written columns, we’ve tried to keep you informed about developments on a number of legal fronts, mostly involving some sort of federal regulation. Through those columns, we’ve had a chance to meet many of you, and you have had a glimpse into the way we see things. My columns have primarily been about the Mine Safety and Health Administration (MSHA), and, for one last time, I’d like to tell you how I view the agency.

At the outset, I have never had any question that 1) safety is the number one priority in the mining workplace, and 2) to the extent that MSHA furthers that goal, I fully support its efforts. The problem has always been that we sometimes disagree on the best way that goal can be achieved. After the three tragic coal mine accidents in 2006, MSHA began to increase penalties in a very significant way. In addition, they began to write a lot more citations. On top of that, they had already significantly increased the percentage of elevated enforcement actions since 2000, and they remained at that increased rate between 2006 and 2010. While there have been steady declines in injury rates on the non-coal side of the mining industry, the declines have not matched the increases in enforcement during the period. This raises a question that has been on my mind for the last 30 or so years. That question is whether there has ever been any study done demonstrating the existence (if any) of a correlation between increased enforcement and safety?

For the last five years or so, both MSHA and the Congress have acted as though the relationship is obvious. Their reaction to every (admittedly tragic) event over the last five years has been to call for ever more stringent legislation and to institute ever more punitive enforcement. They simply assume that additional legislation and more stringent enforcement will lead to better safety records. While that assumption may seem logical, it has never been scientifically tested. And, in fact, experience on the industry side would tend to demonstrate that it may not be correct.

What the industry learned 20 or more years ago was that a list of prohibitive rules, accompanied by negative reinforcement, did not result in significant improvements in safety or significant reductions in accidents. Rather, the studies showed that greater reductions in accidents could be obtained by encouraging employees to make good decisions about safety and empowering them to make those decisions. In addition, most current thinking supports the idea that safety efforts should be “risk based” and thus able to cope with changing conditions and trends, rather than inflexibly focused on conditions which may have changed or which may no longer exist.

By contrast, the Mine Act, which relies solely on prohibitive rules and punishment, was written in the 1960s, long before currently accepted safety theory had come to be. It relies entirely on negative reinforcement and fixed, relatively inflexible rules, many of which either deal with outdated or unused technology, or completely ignore advances in mining engineering or other mining-related disciplines. In doing so, it betrays the very cause it is supposed to support.

I have been in many, many meetings where this subject has come up. All of them seem to end up in “argument by horror story.” Advocates for stricter enforcement invariably tell stories about the small number of rogue operations that completely ignore even the most basic safety practices, inevitably resulting in (pick one) a horrible agonizing death, permanent disfigurement, complete disability, or heart-rending consequences to a young, growing family. In response, those on the other side of the debate invariably respond with some story detailing some excess in MSHA enforcement involving (pick one) the citation involving the lack of a telephone or a stretcher at a one-man mine, a microwave, a picture frame, some minor paperwork problem, or a trash can lid.

Although there is a true story behind each of the arguments I suggested, they completely miss the point. There will always be scofflaws who deserve punishment, and there will always be regulatory excesses as long as there are regulators. Neither side, however, ever addresses the underlying questions of whether the current regulatory system is effective and whether creating “more of the same” will make it any more effective. One would hope that there could be an agreement on how to determine the real efficacy of what MSHA is doing in some impartial way and then to adjust the current system (if needed) to improve it. Unfortunately, that is far from likely. What we have seen in the Congress during the last five years is not — at least to my mind — increased interest in mine safety, but rather, increased interest in the politics of mine safety.

The bottom line on all this is that we need to be committed to the idea that whatever it is that gets us to increased safety (including more enforcement, if that’s what the studies show) is something we are willing to pursue. Until then, we need to keep questioning whether the current system is really getting us anywhere. We need to keep exploring the best ways to achieve the safest work environment that can be achieved. We need to keep working for safety in the best way we know how, and we need to do our best, regardless of what MSHA might or might not be doing, to protect our miners.

I’ll see you all down the road. Until then, stay safe.

Mark Savit is a partner with Patton Boggs LLP. He can be reached at 303-894-6117 or msavit@pattonboggs.com.

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