Criminal prosecutions for untrained employees

Pit & Quarry, Feb, 2004 by Michael T. Heenan

It was a crime for Ronald Bretson, Frank Hopf and the pipeline companies that they worked for to not train, and not have records that they trained, employees as required by regulations under the Hazardous Liquid Pipeline Safety Act. Each of these individuals and companies pleaded guilty to criminal indictments in federal court on December 11, 2002.

Their convictions stemmed from a fatal pipeline explosion in the state of Washington. The defendants were charged with knowingly and willfully violating "minimum safety standards" related to pipeline operations and employee training.

Similar MSHA liability

Companies in the mining business are generally aware of similar potential liability under the Federal Mine Safety and Health Act, which provides for comprehensive training of employees as well as training of other persons who come onto mine property. In this connection, the act provides for criminal prosecutions against companies as follows:

   Any operator who willfully violates a mandatory health or safety standard,
   or knowingly violates or fails or refuses to comply with any order [with
   limited exceptions], shall, upon conviction, be punished by a fine ... or
   by imprisonment for not more than one year, or by both, except that if the
   conviction is for a violation committed after the first conviction of such
   operator under this Act, punishment shall be by a fine ... or by
   imprisonment for not more than five years, or both.

Fines can be as high as a half million dollars per violation. The Federal Mine Safety Act further provides for criminal prosecutions against individual company officers, directors, managers and supervisors (agents) as follows:

   Whenever a corporate operator violates a mandatory health or safety
   standard or knowingly violates or fails or refuses to comply with any order
   ... any director, officer, or agent of such corporation who knowingly
   authorized, ordered, or carried out such violation, failure, or refusal
   shall be subject to the same civil penalties, fines, and imprisonment that
   may be imposed upon a [corporate operator].

The Federal Mine Safety and Health Act calls for a withdrawal order to be issued anytime an authorized representative of the Secretary of Labor (MSHA) finds a miner at a mine has not received the mandatory training. The act states:

   If, upon any inspection or investigation ... the Secretary or an authorized
   representative shall find employed at a coal or other mine a miner who has
   not received the requisite safety training ... the Secretary or an
   authorized representative shall issue an order under this section which
   declares such miner to be a hazard to himself and to others, and requiring
   that such miner be immediately withdrawn from the coal or other mine, and
   be prohibited from entering such mine until an authorized representative of
   the Secretary determines that such miner has received the training
   required....

The law also provides specific protections to untrained miners who are removed from work owing to an MSHA withdrawal order.

   No miner who is ordered withdrawn from a coal or other mine ... shall be
   discharged or otherwise discriminated against because of such order; and no
   miner who is ordered withdrawn from a coal or other mine ... shall suffer a
   loss of compensation during the period necessary for such miner to receive
   such training and for an authorized representative of the Secretary to
   determine that such miner has received the requisite training.

Withdrawal orders issued by MSHA often prompt special investigations. The purpose of a special investigation is to determine whether any manager or supervisor should be prosecuted. (Note: Responding appropriately to special investigations is critical given the potential liability that is associated with them. While special investigators may be insistent, there is no requirement for any management representative, or anyone else for that matter, to proceed immediately. Investigations are not like inspections; there is always time to get advice.)

As for responding to inspectors or investigators who are making initial inquiries into training compliance, the importance of proper documentation cannot be overemphasized. Documents are mandated by law and they are critical to proof of training. Not having documentary evidence that mandatory training has been completed as required is a violation of law.

However, documents alone do not always suffice as proof of training. MSHA compares the content and circumstances of completed training with the documents to evaluate accuracy of the documents, and also to see if the training conformed to the company plan, covered all of the required subjects, lasted the proper amount of time and was effectively delivered. Having the documents, therefore, is important. Making sure they are completely truthful is even more important.

Any training certification that is not considered accurate by government investigators could result (and frequently has resulted) in criminal prosecution for false statement or certification. The Mine Safety Act provides: