Michael Peelish, Esq.
MSHA’s New Powered Haulage Standard – Step Carefully Through the “Mine Field”
On September 9, 2021, MSHA issued its proposed Powered Haulage Rule which will require mine operators with six or more miners to develop a written safety program for mobile equipment and powered haulage equipment used at surface mines and surface areas of underground mines. The following are highlights of the proposed rule, what to watch out for, and concerns on how MSHA will enforce any final rule.
The proposed rule:
Does not impose universal mandates, but rather uses a flexible approach which is important for small operators.
Requires mine operators employing six or more miners to create and implement a powered haulage safety program addressing mobile equipment (but not conveyors) at surface mines and the surface areas of underground mines. No initial plan approval process is required.
Requires a responsible person evaluate and update the written safety program at least annually or as mining conditions (such as seasonal weather changes) or practices change, accidents or injuries occur, or as surface mobile equipment changes, or modifications are made.
Require operators to train miners and other persons at the mine necessary to perform work (e.g., office workers) to identify and address or avoid hazards related to surface mobile equipment. This training would be met through existing training requirements.
What to watch out for:
Requirement that the program include actions the mine operator would take to evaluate currently available and newly emerging feasible technologies that can enhance safety and evaluate whether to adopt them. The safety program would include a process by which operators would periodically evaluate new and existing technologies that could enhance safety. MSHA assumed in the proposed rule that mine operators will spend 60 hours each year evaluating technologies that enhance safety while only requiring 15 hours annually for hazard identification. That stark difference in approach indicates that MSHA is pushing mine operators towards engineering controls.
Requirements that operators develop and maintain procedures and schedules for routine maintenance and non-routine repairs for surface mobile equipment integrating manufacturer’s recommendations into the safety program. This is how MSHA will require a safe operating and maintenance program which it has always wanted but not able to require across the board. Now MSHA has its enforcement teeth in the mine operator.
It appears MSHA will require mine operators to incorporate operating and maintenance manuals and consensus standards (e.g., SAE) in its programs. Does all your different equipment have a readable manual? Do you follow all recommendations?
What if your maintenance is contracted out? What role does the contractor play in this program?
Concerns regarding MSHA enforcement include:
While the program does not have to be “approved” by MSHA, the first citation issued to a miner operator for an inadequate program will place the program in an “approval” mode. It will no longer be the mine operator’s program but will become MSHA’s program by way of citation abatement. Once this happens, the mine operator will have forever lost control. This is the part of the regulation that concerns me. Yes, we like the program approach and the flexibility, but all that ends when MSHA requires conditions in the abatement of a citation.
To avoid the inevitable abuses of MSHA’s discretion, the mine operators should be given a hearing on the conditions required for abatement under a program, like OSHA when challenging a citation delays abatement. This is the only way to push back on MSHA wanting more and more and more. At first blush, MSHA’s approach is a good approach until the Agency decides to push its weight around on what it wants in a program versus what the mine operator wants. Trust me, this will happen, and the mine operators will be left to endure the abuses of MSHA’s discretion.
Since the mid-1990’s MSHA has talked about powered haulage accidents and how to prevent them and for good reason. Organizations including NIOSH, mine operators, equipment manufacturers, and safety alliances have engaged in endless meetings, research, debates, discussions, and presentations searching for new ways to address these type accidents. Much has been accomplished over the years including development of best practices and emerging technologies. With this proposed rule, MSHA is using the program approach to require mine operators to put in writing safe operating and maintenance procedures and to require mine operators “evaluate” technology annually. However, the fear of big and small operators is how MSHA manages the enforcement of any rule because of the financial impact and implementation nightmares for mine operators, and MSHA’s proclivity to get what they want in programs and plans.
The industry has a chance to comment on this proposed rule which are due by midnight November 8, 2021. Our firm has expertise that can assist mine operators in developing surface haulage programs to meet what MSHA will ultimately finalize in a rule.
Link to proposed rule: https://www.regulations.gov/document/MSHA-2018-0016-0111