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  • Writer's pictureMichael Peelish, Esq.

MSHA Stakeholder Meeting – What’s on the Horizon

MSHA held its Stakeholder meeting on September 29, 2021 with unfortunately more of the same news – too many fatalities. There were 12 fatalities recorded from 6/9/2021 to 9/21/2021. Powered-haulage fatalities led the way, larger mines >50 incurring a greater share, age was not a factor, and experience at the mine and at the activity had an odd pattern with the most and least years having most fatalities.

One common thread that continues to plague the mining industry is that miners need to anticipate better the consequences of their actions. They need to ask the “What If Questions”. What if welding fumes accumulate in the pipe? What if I slip off the ledge or it breaks and falls away? What if this pipe joint moves when it is loosened? This approach has had many fancy safety slogans over the years, but it boils down to common sense safety. What if this bottom roller is adjusted without LOTO since it worked the two previous times? The next safety talk you have with your crews, ask them to ask themselves “What If” before they begin a work activity. Just keep it simple.

MSHA also mentioned several new emphasis programs including roof and rib control and pillar collapses in underground limestone mines. MSHA shared interesting data to support its concerns. Also, as MSHA explained, there has been an ongoing powered haulage initiative for a long time that is now culminating in an issued on September 9, 2021 a proposed rule in which comments are due by November 8, 2021. If MSHA holds public hearings, they will be virtual but none have been scheduled. Any implementation of the rule will involve outreach meetings and materials. As I explained in our article covering the proposed rule, while the rule provides the appearance of flexibility, it provides a simple pathway for MSHA to make unreasonable demands of operators to install engineering controls or other control measures before, and most definitely after, an accident occurs.

The more interesting portion of the Stakeholder calls are the audience questions. Several notable responses from MSHA:

  • An ETS for vaccines will not be issued by MSHA because of the strength of the Mine Act versus OSHA’s laws and regulations. Also stated but not fully explained was the comment that the EO does not cover MSHA.

  • All MSHA inspectors should be following CDC guidance regarding wearing a mask and physical distancing where possible.

  • The silica rule is in the process and is a top priority.

  • For purposes of the booster shots, mining is not included in the CDC guidance that workers occupationally exposed to Covid-19 should receive booster shots.

  • MSHA is not doing pandemic research with any grant money.

  • MSHA has issued 370 citations since March 2020 for Covid-19 related to operator conditions or practices that were not following CDC guidance. While MSHA has not done so, it would have no issue with shutting down a mine if an outbreak occurred.

  • MSHA did note that previous emphasis programs have included contractors and fall protection.

So, what is on the Horizon? Greater opportunity for enforcement of more stringent rules with MSHA pushing around its unreviewable right to cite an operator and call it reasonable discretion. This situation can only be addressed by policy guidance since the courts are hamstrung under existing legal decisions. In my 30 plus years in this industry, the MSHA discretion issue ebbs and flows with each administration. With the current lay of the land, I submit it will be a flash flood.

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