At a mining industry safety conference in June, an MSHA Assistant District Manager stated that the agency viewed persons that perform workplace examinations pursuant to 30 C.F.R. § 56.18002 as performing an “agent-like” function that subjects them to the same Mine Act individual liability that can be directed at supervisors and managers. The statement was made while addressing MSHA enforcement efforts and priorities directed at the recent spike in fatal accidents at metal-nonmetal mining operations. The agency believes that some of these fatalities could have been avoided with more effective workplace examinations—a point that MSHA intends to emphasize in upcoming inspections.
This position is actually an off-shoot of a longstanding MSHA preference that workplace examinations be conducted by supervisors so that there is more accountability for inadequate examinations. Notwithstanding the fact that the workplace examination regulation only requires that “a competent person” conduct the examination, agency enforcement personnel have long encouraged operators to make this a supervisory function because “supervisors have the most incentive to get it right.” In some cases, this encouragement has manifested itself in MSHA inspector recommendations to hourly personnel that they should think carefully about the responsibility they are taking on in conducting workplace examinations.
Nonetheless, while this is not a new theme, it is being repeated more often, and by higher profile personnel, as the agency struggles for options to address rising fatality statistics. It is a disturbing trend. This effort to limit the workplace examination function solely to supervisors carries the very real risk of reducing the broad cross-section of hourly competent people who provide the industry with comprehensive experience and insight gained over years of mining experience. Such a reduction in the pool of workplace examiners would hamstring many operations because of the myriad of workplaces and work practices that need to be evaluated. This type of restricted framework would clearly reduce the effectiveness of overall workplace examination performance at mining operations.
Moreover, this competent person/agent interpretation being pushed by MSHA is inconsistent with the law. While the Review Commission and the courts have long held that hourly personnel in certain situations can become agents for purposes of section 110(c) individual civil penalty liability if they possess some of the same authority as supervisors (i.e., authority to direct the workforce, assign tasks, shut down equipment, and hire and fire employees), the Mine Act has never been interpreted to impute such authority to an hourly person conducting an examination of a workplace. Such a connection was never envisioned by the drafters of the Mine Act and would clearly have a chilling effect on operators’ overall ability to monitor safety at their operations.