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2020 Hindsight


Let’s Look Back at Where We Were in 2019 and Formulate Some Goals for 2020.

The time has passed for Christmas wish lists, so as we begin the New Year, let’s look back at where we were in 2019 and formulate some goals for 2020.

As I write this (remember that all columns have to be submitted in advance), the MSHA daily fatality report shows 22 fatalities, the lowest total as of this date in the last five years. We have no matching work hour data to determine actual rates, rather than raw numbers, but even so, any reduction in fatalities and injuries is good news. However, the one thing that we can all agree on is that 22 fatalities is 22 too many and we can always do a better job. What can we do better?

With few exceptions, MSHA has historically taken the view that its principle mission is enforcement of its regulations without any real consideration of whether enforcement is the most effective way to increase the safety and health of miners. It’s time for that consideration to take place.

High Time

It’s high time for all of us to take a hard, objective, dispassionate look at what the best way to reduce fatalities and injuries in our industry actually is. MSHA’s own data shows that fatalities have remained roughly constant over the last five years and that there has been no definitive downward trend in the last 10. Assuming that data is correct, there ought to be no argument that something needs to be done.

The only way that progress can be made is if MSHA and industry engage in a genuinely cooperative effort to develop a new, more effective approach. In that regard, it’s worth repeating that the Mine Safety and Health Act is essentially 50 years old and many of the regulations under it come from pre-existing rules that are even older than that.

What unquestionably worked to reduce hazards 50 years ago will not have the same impact now. Times have changed and solutions need to change with them. We must cooperate in the effort to achieve that change.

A suggestion as to how to start this cooperative process would be to take a different approach to rulemaking. MSHA’s latest regulatory agenda states that a new proposed regulation intended to reduce the potential for mobile equipment accidents.

Suggestions

While the agency did solicit suggestions and comments from stakeholders on this topic, MSHA has not given the regulated community any indication as to even a general concept for such a regulation. If MSHA follows its traditional pattern of rulemaking, the first the regulated community will hear of the rule will be when it is formally proposed.

Rather than taking that approach, MSHA should consider engaging in negotiated rulemaking rather than using the traditional notice and comment process. In the negotiated rulemaking process, all parties gather to try to achieve consensus on the final text of the rule. This approach has been used successfully in the past by OSHA with regard to a number of rules, most notably the regulations on crane safety.

Negotiated rulemaking would be particularly appropriate here given the huge variety of conditions, equipment and circumstances that need to be addressed and the variety of equipment types, models and ages that it needs to cover.

In a negotiated rulemaking, mine operators, miners’ representatives, manufacturers of both equipment and safety accessories, contractors, safety consultants and even insurers could meet and hash through the best approaches to the complex issues associated with this problem. I am sure there will be objections to this, but realistically what is there to lose?

MSHA’s last major rulemaking, workplace examinations for metal/nonmetal mines, was amended shortly after its promulgation then successfully challenged in court two years after it became a final rule.

The challenge struck down the amendment, but the rule remains embroiled in litigation which, if successful, would completely repeal the current rule and reinstate its predecessor. It is not unrealistic to think that, had all of the interested parties been allowed to cooperate on the language of the rule in the first place, the current litigation might have been avoided.

The same approach could bring improvements to the inspection and enforcement process. The Act mandates that MSHA not just inspect conditions, but also inspect “practices.” MSHA might want to take that mandate a bit more seriously.

Success

Rather than concentrating on conditions which technically might be violations of regulations, MSHA could shift some of its efforts to talking to miners at companies with exemplary safety records about what they think is responsible for their success.

Recently, the Society of Mining Engineers was approached by representatives of the construction and manufacturing industries about exactly that. They said they had done their research and that it showed that our industry had improved the most in terms of reductions in injuries and fatalities. They wanted to talk to us to find out what we are doing right.

At one point in the not so distant past mining was by far the most dangerous industry in the United States. We had more than 200 fatalities a year well into the 1980s. Since then, we have reduced that total by approximately 90%.

While mining employment has dropped during that period, the decrease in injuries and fatalities has far outstripped that drop. We have every right to be proud of what we have done.

But even with that amazing performance, we are still losing miners. Everyone agrees that we must do better. In order to do this, we have to look back at what has worked, take stock of what has not and use that analysis as the catalyst for regaining the pace of improvement that has marked the last 30 years but has been lost in the last five. That would be what 2020 hindsight would mean to me.


mark savit mark NEWMark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..