MSHA baits M/N Operators into “self incrimination”!

Here is what the M/N Administrator has distributed as a Program Policy Letter. In response to MSHA’s dissatisfaction with operators’ exercising their Constitutional guarantee against self incrimination the agency has added a new record keeping requirement to the Vol. IV Policy. This was done with no notice, hearings, or rulemaking procedures!

In violation of the Constitutional Right, they added a fourth record keeping requirement to the enforcement policy: “Standards 56/57.18002(b) requires operators to keep records of working place examinations. These records should include: (1) the date the examination was made; (2) the examiner's name; (3) the working places examined; and (4) a description of the condition(s) found which may adversely affect safety or health. Records of examinations may be entered on computer data bases or documents already in use, such as production sheets, logs, charts, time cards, or other format that is more convenient for mine operators.”

The “trap” in this is that The MS&H Act of 1977 is Strict Liability Legislation! This means that listing the new requirement of “observed hazards” on the required record is a written confession that a “hazard to miners” existed. As there is no Statute of Limitations on “hazards” then all of the listed hazards (repaired or not) are citable under “strict liability” as the record itself is a confession that “condition(s) found which may adversely affect safety or health of miners” existed in the workplace!

The other “trap” is that documents listed as examples on which the Operator may acceptably record the examinations, are all documents which the Act gives the inspector no right to see. With the Workplace Examination record entered on your “production sheet” the inspector is also seeing information that is legally none of his business!

The prominent MSHA expert lawyer, Adele Abrams, Esq. commented on this PPL, "This is just another example of MSHA conducting illegal rulemaking through policy!"

See the Program Policy Letter