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MSHA’s Mine Fatality Prevention Efforts

Agency Will Explore Task Training, Mine Examinations, Causes Of Mining Fatalities and Best Practices to Prevent Mine Accidents.

By Donna Vetrano Pryor, Jackson Lewis P.C.

As you all know by now, there have been a disturbing number of fatalities in the metal/nonmetal mining sector over the last six months. As a result, on May 28, 2014, MSHA announced that in the wake of two mine stakeholder safety summits, the agency will be stepping up efforts to counteract the recent spike in mining deaths.

These efforts will involve MSHA enforcement personnel from coal and metal and nonmetal programs (along with staff from the agency’s Educational Policy and Development division) making visits to mines across the country to conduct safety “walk and talks” with miners and mine operators to encourage them to apply their safety training and remain vigilant for unsafe conditions.

The agency announced that discussion topics will include: task training, mine examinations, causes of mining fatalities and best practices to prevent mine accidents.

An agency press release states that “[i]nspectors will continue to look for the types of conditions that led to recent mining deaths and exercise their enforcement authority.”

Up for Debate
The issue of whether task training and mine examinations will prevent mine accidents is up for debate, as some recent cases have shown that even experienced miners with proper training who have done the required mine examinations sometimes make mistakes, resulting in serious accidents and injuries.

However, an examination of recent fatality-related citations show the agency has typically issued training citations in one form or another. Workplace exam citations are also commonly issued.

How can operators ensure compliance with the regulations in the current climate?

30 CFR 48.7(c) provides:
Miners assigned a new task not covered in in paragraph (a) of this section shall be instructed in the safety and health aspects and safe work procedures of the task, including information about the physical and health hazards of chemicals in the miner’s work area, the protective measures a miner can take against these hazards, and the contents of the miner’s HazCom program, prior to performing such tasks.

Paragraph (a) of this section gives more specific guidance on task training for mobile equipment operators, drilling machine operators, haulage and conveyer systems operators, roof and ground control machine operators, and those in blasting operations. Moreover, all training required under Part 48 must be given by a qualified trainer or supervisor experienced in the assigned tasks or “another person” experienced in the assigned tasks. 30 CFR 48.7(e).

When determining the program for task training of a particular task, operators are not required to create a detailed checklist for the training. However, creating a checklist based on an SOP or an operating manual and using it to make sure operators cover each of the items during task training would be a useful way to demonstrate the appropriate training was provided.

Additionally, if a miner has been operating a piece of equipment at another mine he may not need task training on that equipment when he joins a new mine. Operators would be prudent to get copies of old training records or to retrain miners on equipment to ensure there is a record of compliance.

Operators should also consider how they are defining “new work tasks.” In Secretary of Labor v. Twentymile Coal Co., the D.C. Circuit Court of Appeals found that an operator violated 30 CFR 48.7(a) in failing to provide new task training to miners before they began unclogging a new rock chute. The operator argued that it was not required to provide task training because unclogging the chute was not a “task” that “occurred on a regular basis,” referring to Part 48.7(f)’s definition of a “task.”

The Court of Appeals gave deference to the agency’s interpretation of the standard as applying to work assignments that a reasonably prudent person would recognize would occur on the regular basis, even if it had not occurred before. The court found that “to read the regulation’s use of the term “occur” in a way that precludes coverage of events that have not previously occurred yet promise to occur with regularity in the future would lead to absurd results.”

The court stated it “cannot take seriously the suggestion that the Commission endorsed a policy promoting that the Twentymile miners attempt work when it is most dangerous: that is, when the miner is utterly ignorant of the task at hand.” This case is instructive on how the agency views which tasks require training.

Another Standard
Another standard the agency is focusing on is 30 CFR § 56.18002(a) which provides that a “competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.”

The regulation does not state when the examination of the workplace must take place. However, in order to ensure compliance and provide proof of that compliance, operators would be prudent to require miners perform and record their workplace examinations at the beginning of each shift.

Foreman, shifters and supervisors should make a practice to spot check workplace inspection cards as they do their rounds and make sure miners are not “pencil-whipping” the workplace inspection cards.

Moreover, these completed cards should be reviewed and in a timely manner. Morning toolbox or safety meetings should focus on the importance of completing these inspections in a thoughtful and thorough manner, as they proper completion ensures not only their safety, but the safety of their colleagues.

The prior cases decided regarding this regulation, although by no means definitive, tend to say that MSHA must meet a very high burden to show that a given workplace examination is inadequate.

Most of the cases focus on whether the exams have been made at all and, if so, whether they were recorded. ALJs have held that the mere fact that conditions existed at the time of inspection is insufficient evidence from which to infer the conditions existed at the time of the on-shift examination or that the operator knew or should have known of their existence. CEMEX Inc., 32 FMSHRC 1897 (ALJ Rae). Nevertheless, it can be anticipated that MSHA will focus more and more on both the adequacy of these examinations, based on the statements that they have made recently.

The cause(s) of the recent increase in accidents is anything but clear. What is clear, is that injuries are occurring and safety programs need to be assessed to be sure operators are doing all they can to send everyone home safely after each shift.