Michael Peelish, Esq.
What on Earth Can MSHA do to Reduce Fatalities? Let Me Tell You…
MSHA held its quarterly stakeholder meeting on December 14, 2021 and reported that there have been 37 fatalities year to date versus 29 this time last year. Most alarmingly, there have been 10 fatalities on mine property since October 1, 2021. It is difficult to listen to the MSHA officials reviewing so many fatalities and then listening to a call for help from the agency responsible for enforcing the Mine Act and its regulations. Having been through my fair share of fatal injury investigations over 30 years in this industry, one thing has not changed. MSHA never takes responsibility for anything that happens in the industry because they are an enforcement agency. So, when MSHA tells the industry about the targeted inspection activities, it totally misses the point.
MSHA’s focus must change. It must change from one of citing an operator for a small pile of material or a hose in a walkway that one or two miners may encounter during an entire day to focusing on practices and behaviors and how to change them for the better. Perhaps the better approach is to ask the miners what caused the spillage and then ask the miners how to fix the belt or the chute to eliminate the spillage hoping the miner will discuss LOTO, etc. But no, MSHA's responds that they are an enforcement agency. Frankly, it is getting old to listen to the same tune when MSHA has more authority than any other safety agency in our government including the authority to shut down an operator for unsafe conditions or practices in a heartbeat.
In light of the worst year for fatalities in a long time, MSHA initiated a targeted enforcement program on November 1st that obviously did not have the desired effects. Again, MSHA takes the path of enforcement, not on changing behaviors. However, maybe there is hope insofar as MSHA announced a new safety initiative during the stakeholder call - Take Time, Save Lives – which officially begins on January 1, 2022, and stresses that many accidents and fatalities can be prevented by proper training and focusing on tasks. By initiating a positive program such as this, MSHA implicitly accepts that enforcement is not the answer in every case.
My humble advice to MSHA is to apply the 80/20 rule that good operators apply when addressing a problem. Spend more time talking to miners and reviewing mine operators’ training techniques and practices. Provide information in the form of pocket cards and other information that can be placed in work areas such as at the hopper, in mobile equipment or near the conveyor. The good MSHA inspectors I have traveled with throughout the years did just that. They talked with miners trying to reach their heart and soul. That is what makes a difference in eliminating accidents, not some warmed up and failed approach to enforcement.
Think about it and do the math. A small sand and gravel quarry may see MSHA for 16 hours every 6 months which is less than 0.4% of a year. Thus, while the Mine Act requires a complete inspection, one can easily see how enforcement is not the complete answer. Start talking to mine operators about why there is a pile of material or hose in the walkway? Why does the hopper become blocked and what do you do if it does? Is there a better way? MSHA inspectors have “prosecutorial discretion”, but only use it to their enforcement advantage, not to the advantage of improved safety performance. The bottom line is that MSHA must take responsibility for these fatalities and must be honest with itself in how it can make a difference. Until it does so, the industry is on its own and the best safety results will not be achieved.
Other topics covered during the stakeholder call included,
MSHA’s regulatory agenda, issued on December 10th, included a proposed rulemaking for respirable crystalline silica for May 2022.
MSHA will continue granting extensions on refresher training until the administration changes the status of COVID. There is no extension for new miner training.
MSHA has no plans at this time to issue an Emergency Temporary Standard and operators should continue to follow the March 2021 guidance.
Chris Williamson has been appointed to head MSHA, however it will be some time before he is confirmed by the U.S. Senate.