The U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced it is extending the effective date of the agency’s final rule on Examinations of Working Places in Metal and Nonmetal Mines until Oct. 2, 2017. This extension will allow additional time for MSHA to provide training and compliance assistance for its stakeholders. MSHA is developing a variety of compliance assistance materials to assist the industry, which the agency will make available to stakeholders and post on its website.

MSHA claims the extension will enable the agency to hold informational meetings and focus on compliance assistance visits at various locations around the country. Additional time will also allow MSHA to train its inspectors to assure consistent enforcement. The truth is, MSHA’s regulatory authority will be very much curtailed for the foreseeable future.

MSHA has reported five fatalities thus far in the Metal/Nonmetal sector in 2017.

Fatality #1

Fall of Roof or Back - Iowa - Crushed, Broken Limestone NEC 

Linwood Mining and Minerals Corp. - Linwood Mine

MSHA reported that on Jan. 25, 2017, a miner was found in an underground limestone mine after failing to exit the mine at the end of the shift. The miner was located under material that had fallen from the rib in an area of the mine that had been barricaded to prevent entry due to bad roof and rib conditions.

This fall of face/rib/highwall fatality was the first metal and nonmetal mining death reported in 2017. As of that date in 2016, there were no fatalities reported in metal and nonmetal mining.

MSHA recommends the following best practices to avoid a fatality such as this one:

  • Install barriers to impede unauthorized entry into areas where unattended hazardous ground conditions exist.
  • Establish procedures to account for miners in all areas of the mine – surface, underground, shops and facilities – across and at the end of shifts.
  • Do not cross barriers that are intended to prevent access to dangered-off areas of underground mines.
  • Train miners to recognize potentially hazardous ground conditions and to understand safe job procedures for elimination of the hazards.
  • Never enter hazardous areas that have been dangered-off or otherwise identified to prohibit entry.
  • Develop and train miners on a method that clearly alerts miners not to enter hazardous areas.
  • If possible, do not work alone. If working alone, communicate intended movements to a responsible person.

According to 30 CFR § 57:

Areas where health or safety hazards exist that are not immediately obvious to employees shall be barricaded, or warning signs shall be posted at all approaches. Warning signs shall be readily visible, legible and display the nature of the hazard and any protective action required.

Fatality #2

Falling Material - Texas - Construction Sand and Gravel

Trinity Industries Inc. - Cottonwood #1204

MSHA reported that on March 14, 2017, an independent owner/operator truck driver walked behind his raised end-dump trailer while dumping his load, and was engulfed by sand. This was the second fatality reported in calendar year 2017 in metal and nonmetal mining. 

As of that date in 2016, there were two fatalities reported in metal and nonmetal mining. This was the first Fall of Material fatality in 2017. There was one Fall of Material fatality in the same period in 2016.

MSHA recommends the following best practices to avoid a fatality such as this one:

  • Conduct pre-operational checks to identify any defects that may affect the safe operation of equipment before it is placed into service.
  • Ensure workers who operate heavy equipment are adequately informed, instructed, trained and supervised.
  • Do not position yourself near a truck that is actively dumping, or near a truck while it is raising its bed.
  • Ensure that the tailgate is unlocked before elevating the cargo box to the dump position.
  • Do not attempt to dump the material if it sticks in the bed. Stuck material can imbalance the load and affect the stability of the truck. Always deflate trailer air springs prior to raising the dump body.

Fatality #3

Powered Haulage - New Mexico - Construction Sand and Gravel

Black Rock Services - Bonito Pit

MSHA reported that on Friday, March 24, 2017, the victim, working at a New Mexico sand and gravel operation, exited his personal flatbed truck, which was left running in sixth gear, to turn off the genset (diesel generator). Prior to ascending the steps to the diesel generator, it appears the flatbed truck moved forward and pinned him against the genset trailer. The victim was found on Monday, March 27 and pronounced dead at the scene.

As of that date in 2016, there were three fatalities reported in metal and nonmetal mining. This was the first machinery fatality in 2017. There were no machinery fatalities in the same period in 2016.

MSHA recommends the following best practices to avoid a fatality such as this one:

  • Place the transmission in park and set the park brake before exiting vehicle.
  • Do not depend on hydraulic systems to hold mobile equipment in a stationary position.
  • Always chock the wheels when parking vehicles on a grade.
  • Never place yourself in front of an unsecured piece of mobile equipment.

Fatality #4

Powered Haulage - Illinois - Crushed, Broken Limestone NEC

Hastie Mining - Hastie Mine

MSHA reported that on June 8, 2017, a truck driver was operating a Caterpillar 777F haul truck, dumping a load of gravel, when the ground at the dump point collapsed.

The truck went over the edge of the dump point, overturning and landing on its roof approximately 30 ft. below. The victim was transported to the hospital, where he later died of his injuries.

This was the fourth fatality reported in calendar year 2017 in metal and nonmetal mining. As of that date in 2016, there were eight fatalities reported in metal and nonmetal mining. This was the first Powered Haulage fatality in 2017. There was one Powered Haulage fatal in the same period in 2016.

MSHA recommends the following best practices to avoid a fatality such as this one:

  • Ensure seat belts are provided, maintained and worn at all times when equipment is in operation.
  • Incorporate engineering controls that require seat belts to be properly fastened before equipment can be put into motion.
  • Visually inspect dumping locations prior to beginning work and as changing conditions change.
  • While loading out stockpiles, do not excavate the toe of the slopes below dumping points and travelways.
  • Utilize a bulldozer with the “dump-short, push-over” method of stockpiling material. Provide and maintain adequate berms on the banks of roadways and at dumping points where a drop-off exists.
  • Train miners to recognize and avoid dumping point hazards and to understand the hazards associated with the work being performed.

Fatality#5

Electrical - Oregon - Misc. Nonmetallic Mnls. NEC
EP Management Corporation - Celatom Plant

MSHA was reporting a fifth fatality had occurred on July 14, however details were not available at press time.

MSHA has stated that a common thread among fatalities this year is miners working alone. Brian Hendrix, a member of Husch Blackwell’s Energy & Natural Resources group, analyzed MSHA’s response to that:

MSHA used its Quarterly Stakeholder Call in May to announce the launch of a “Working Alone Initiative.” MSHA intends to “engage miners and mine operators in ‘walk and talks’” to “emphasize accounting for all workers at all times and providing operators with best practices for working alone.” As such, MSHA’s initiative will include “both training and enforcement components.”

What prompted this initiative? According to MSHA, in 2017 “five miners have died in accidents that occurred when they were working alone on mine property.” Three of the five were Metal/Non-Metal (M/NM) fatalities, and I’ll focus on those three here. From the information MSHA has shared, I don’t doubt that the three M/NM fatalities occurred when the miners were alone on mine property. However, near as I can tell, MSHA’s working alone standard has virtually nothing to do with those fatalities.

  • One involved a miner who wasn’t working when he was killed. He was alone, but he wasn’t working. Per MSHA, “the miner was found [under a rib failure] in an abandoned section of the mine beyond a barricade berm, along the top of a 20-ft. high, waste material spoil pile.” The area “had been barricaded to prevent entry due to bad roof and rib conditions.” The miner apparently entered this area for purposes other than work. He was not assigned to work in the area, there was no work to be done there and his employer specifically prohibited anyone from entering the area. It seems likely that the miner did not want anyone to know where he was or what he was doing. After more than 200 man-hours, MSHA has closed its investigation without taking any enforcement action.
  • The second fatality occurred when a truck driver “walked behind the end-dump trailer while it was being raised and was engulfed by the sand as it came out in the excess dumping area. The truck had been loaded with 27.5 tons of concrete sand.” The truck driver had more than 13 years of experience. I’d be surprised if the truck wasn’t equipped with a radio, and I’d bet the driver also had a cell phone. In any case, he was engaged in a common task that is almost always performed by one person. So far, MSHA has devoted more than 165 man-hours to its investigation of this accident.
  • The third fatality occurred at a small surface sand and gravel mine, which had been operating intermittently since 2016. It employs seven miners. The accident took place on a Friday night, around 8:30 p.m. The last miner to leave the property stopped to turn off a diesel generator as he was leaving the property in his personal truck. He left the truck running, in 6th gear. He didn’t chock the wheels. As he walked between the front of his truck and a building, his truck rolled into him, pinning him. Three inspectors have already spent more than 100 hours investigating the accident, citing the operator for a violation of 30 C.F.R. § 56.14207 (parking procedures).

If, as MSHA claims, working alone is the common thread linking these three accidents, why hasn’t MSHA cited anyone for working alone violations related to these three accidents? Near as I can tell, the answer is that these three accidents didn’t involve a violation of the working alone standard. For underground mines, 30 C.F.R. § 57.18025 provides that:

  • No employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless his cries for help can be heard or he can be seen.

For surface mines and surface areas of underground miners, 30 C.F.R. § 56.18020 provides that:

  • No employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen.

Neither standard prohibits a miner from working alone. The Federal Mine Safety and Health Review Commission has held that the working alone standard applies “if, and only if, hazardous conditions within the meaning of the regulation are associated with that task.” In subsequent cases, Commission judges have explained that, for a condition to qualify as “hazardous” within the meaning of the regulation, it must be “over and above conditions that exist throughout the mining industry, or indeed any industry.”

Moreover, a miner who’s not working alongside another miner isn’t necessarily “alone” for the purposes of either standard. Underground, a miner is not alone if “his cries for help can be heard or he can be seen.” On the surface, a miner is not alone if “he can communicate with others, can be heard or can be seen.”

You wouldn’t learn any of this by reviewing the information MSHA has so far provided about its working alone initiative. Indeed, MSHA has never offered any real guidance on the working alone standard. Kevin Strickland, the acting administrator for Metal/Non-Metal and the administrator for Coal, recently explained that whether miners work alone is “up to the operator. We just want everyone to be as safe as they can when they’re doing it.” We can all agree with him on that.

With all that in mind, let’s turn to the centerpiece of MSHA’s initiative: MSHA’s list of Best Practices for working alone. MSHA recommends that mine operators:

  • Make an assessment to determine if the task can be safely completed by a miner working alone.
  • Provide training to assure the miner can safely complete the task while working alone.
  • Provide the miner with clear direction regarding any limits to work that can be completed while working alone.
  • Train miners to conduct risk assessments and encourage them to always conduct a risk. assessment before work begins (SLAM RISKS).
  • Know where the miner will be at all times.
  • Establish and follow routine communication procedures.
  • Account for miners working alone at intervals appropriate to the job assignment.
  • Account for all miners at the end of each job assignment and at the end of each work shift.

The practices listed above are basically unobjectionable. That said, the list isn’t particularly useful for much beyond drawing attention to the potential hazards of working alone.

For example, MSHA’s list of Best Practices doesn’t mention radios or other communication devices. Does MSHA agree that equipping miners with radios or other communication devices improves safety? If not, why not? If a miner working on the surface is equipped with a radio is that miner working “alone”? How about a miner who has a cell phone with service? What about a miner working underground near a mine phone? How far away from a phone would a miner need to be for MSHA classify the miner as “alone.”

Similarly, MSHA hasn’t taken a position or provided any guidance about which tasks expose miners to “hazardous conditions” and should not, in MSHA’s opinion, be performed alone. Ask an inspector about a particular task, and he might offer you an opinion, but one inspector’s opinion might/will differ from another inspector’s. And, we all know that MSHA certainly won’t treat such opinions or answers as gospel.

What does MSHA mean when it recommends communicating with miners at “intervals appropriate to the job assignment?” MSHA hasn’t said, and I suspect that it will leave it up to individual inspectors to decide what’s appropriate and inappropriate.

What does MSHA expect “routine communication procedures” to look like? Neither standard requires operators to adopt policies or procedures. Does MSHA think that current industry practices aren’t acceptable? Does MSHA even know what those practices look like?

Similarly, MSHA hasn’t explained how an operator would know miners “will be at all times.” In underground coal, miners are tracked electronically. In M/NM and surface coal, that’s typically not the case. Take an operator of an underground stone mine that knows the general location of all miners but doesn’t track them closely. Miners are free to move around as the job requires and aren’t required to report in when they do. That’s all common. Would MSHA say that it’s not the best practice? Why? Some surface operators electronically track the location of every piece of equipment in the mine but many do not. Is it MSHA’s position that those who don’t aren’t following the best practice?

These are all reasonable questions that MSHA should have anticipated and could answer. Unfortunately, it doesn’t appear that MSHA has thought much about them or that it intends to answer them.

As such, it makes sense for operators to:

  • Review tasks or job assignments with an eye on the frequency of communication assigned to jobs, the risks associated with the tasks, etc.
  • Evaluate the means of communication available to miners, e.g. the feasibility of using radios, mine phones, cell phones.
  • If you require miners to check in or report movements, enforce those requirements and check to make sure that your system works as intended.

Admittedly, if you undertake the tasks listed above, it’s difficult to know whether MSHA would agree with the conclusions you reach and the actions you take. With its working alone initiative, MSHA isn’t offering any substantive advice or recommendations nor any answers to the most obvious of questions.

At most then, MSHA’s initiative may raise awareness about the potential hazards associated with working alone. Raising awareness is fine for what it’s worth, but it’s not worth much.