By Willa B. Perlmutter
The latest big development in the MSHA regulatory space is a proposed rule that would require mine operators to develop and implement written programs that focus on improving the safety of surface mobile equipment. Back in 2018, because of the disproportionately high contribution of mobile equipment to mine fatalities, MSHA asked for input so it could put together a brand-new regulation addressing mobile equipment safety. This past September, the agency published a proposed rule in response to the comments it received.
In broadest terms, the new rule would require every mine operator with six or more employees to develop a written mobile equipment safety plan within six months of the rule’s effective date. (We don’t yet know what that effective date will be.) The operator would have to designate one, and only one, “responsible person” who has both the responsibility and the authority to develop and evaluate that plan.
The plan would include actions the operator would have to take to 1) identify and analyze the hazards associated with their mobile equipment; 2) develop and maintain procedures for routine maintenance and non-routine repairs; 3) identify currently available and newly emerging feasible technologies to enhance safety and evaluate whether to adopt them; and 4) train miners to identify and avoid hazards that the mobile equipment poses.
Under the rule, the responsible person would have to evaluate and update the plan at least annually and also when the equipment or mining conditions change or when accidents or injuries happen. The plan doesn’t have to be approved by MSHA, but it does have to be made available if pretty much anybody (inspectors, miners or miners’ reps) asks for a copy.
All that is well and good, and MSHA’s heart is undoubtedly in the right place. In 2021 alone, powered haulage accounted for 16 of the 37 mining deaths in the U.S. Eleven of those were at surface mines or facilities.
But there are real problems with the proposed rule as it is currently written. One question is why the rule would apply only to mines that have six or more employees, since the Mine Act doesn’t draw that distinction and since the risks inherent in powered haulage aren’t a function of mine size.
Plus, it’s not clear how those six miners will be counted. What happens, for example, if an operation’s workforce varies seasonally, fluctuating above and below that six-miner threshold? Also, although it should, the proposal doesn’t specifically address what a contractor’s obligations would be.
We know that contractors are operators under the definition in the Mine Act, but the proposal’s provisions don’t seem to be a very good fit when it comes to contractors. Also, what qualifies as “surface mobile equipment” isn’t terribly clear.
It includes equipment (whether wheeled, skid-mounted, track-mounted, or rail-mounted) capable of moving or being moved, and anything that transports people, equipment or materials. Belt conveyors are excepted, but really nothing else. Wheelbarrows probably count, as would skateboards and boats. Although the proposed rule applies only to surface mines and surface areas of underground mines, we don’t yet know how MSHA plans to handle underground equipment that sometimes comes to the surface, whether as part of the production cycle or for maintenance.
Another question is whether it makes sense to require an operator to designate one single responsible person – or, frankly, to designate a responsible person at all. Every mine operator already identifies someone who has overall responsibility for safety and health at the mine, and you’d think those responsibilities would encompass powered haulage safety along with everything else.
Even if the rule continues to require naming a person who will have special responsibility for mobile equipment-related safety, it might make sense for a mine to have more than one person oversee different pieces of equipment, or different parts of the operation. The proposed rule doesn’t allow for that. A number of comments already submitted suggest that the agency drop the whole “responsible person” thing altogether, and instead make all of the rule’s requirements the responsibility of the operator.
There are other redundancies in the proposed rule besides the new requirement to have a person specifically responsible for mobile equipment safety. Although a primary aspect of the proposal is to get miners focused on hazards associated with mobile equipment, identifying and correcting hazards are at the heart of the mobile equipment examinations required by Subpart M (for metal/nonmetal) and Subpart Q (for surface coal). The rule requires the operator to train miners to identify and address or avoid hazards, but training like that is already baked into Part 46 and Part 48.
One very troubling feature of the proposed rule requires operators to develop procedures and schedules for routine maintenance and non-routine repairs to mobile equipment. Isn’t the whole idea of a “non-routine repair schedule” an oxymoron? The real problem, though, is that MSHA says maintenance schedules are supposed to take into account the equipment manufacturer’s recommendations, but we all know that in the mining industry, for good reasons consistent with safety goals, operators often plan equipment maintenance on a schedule different from what the manufacturer recommends. The proposed rule is explicitly premised on the understanding that every mine is different and that an operator should have flexibility to develop its own mobile equipment safety plan – yet it sounds like MSHA would try to cite operators for failing to adhere to a manufacturer’s one-size-fits-all approach to maintenance.
Finally, MSHA wants operators to identify available and emerging safety-related technologies and evaluate whether to adopt them, but that could create its own problems. What if new technology seems promising but doesn’t pan out after adoption? Would MSHA cite an operator who decides to remove a feature once considered a safety enhancement? (They do now.)
Moreover, operators, particularly small operators, are not necessarily in the best position to evaluate new technologies. That task is better left to MSHA and NIOSH, who have far greater analytical resources and more comprehensive perspectives on how best to enhance safety.
MSHA held a virtual public hearing on the proposal on Jan. 11 and, consistent with its usual practice, reopened the comment period until Feb. 11, 2022, so stakeholders could have further input before the agency decides what it will do next. And what the agency does next with this rule could have a profound impact on your operation for the foreseeable future. If any aspect of the draft rule troubles you – and we think it should – we encourage you to take a minute to submit your concerns to MSHA.
Law columnist Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group, with more than 30 years of experience as a litigator, focusing for the last 20 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration. She can be reached at [email protected].