Since the mid-1990s, the Mine Safety and Health Administration (MSHA) has talked about surface haulage accidents and how to prevent them. Organizations including the National Institute for Occupational Safety and Health (NIOSH), mine operators, equipment manufacturers, and safety alliances have engaged in endless meetings, research, debates, discussions, and presentations searching for new ways to address these accidents. Much has been accomplished over the years, including the development of best practices and emerging technologies.
To formalize these decades of discussion, on December 20, 2023, MSHA published a final rule titled, “Safety Program for Surface Mobile Equipment” (the Rule), in the Federal Register. Now comes the fun part — implementing a rule that is only two columns on one page in the Federal Register with a preamble of only 24 pages. It will be fun because mine operators don’t know what to expect from some of the mandates set forth in the Rule. Even though MSHA has stated that it will provide “templates” and “suggestions” in stakeholder meetings, mine operators should take the bull by the horns and set forth what they think is a reasonable surface safety program. Having said that, the elements of the Rule are set out below with some suggestions for implementation, because at the end of the day it is about protecting the safety of the miners in a sustainable manner.
Suggestions for Implementation
- Identify and analyze hazards and reduce the resulting risks related to the movement and operation of surface mobile equipment. With employee participation, conduct a good old-fashioned risk assessment, but this time write it down, listing possible hazards involving equipment inspections, signage, safe zones, road conditions, traffic management, etc., and note solutions for each hazard.
- Develop and maintain procedures for routine maintenance and nonroutine repairs of surface mobile equipment. Indeed, mine operators need to have adequate written maintenance programs. However, this is an area with many pitfalls, since MSHA can issue citations for defective equipment, claim the operator’s maintenance program is inadequate, and require unreasonable abatement to the maintenance program, such as incorporating operating manuals or consensus standards into the surface mobile equipment program.
- Identify currently available and newly emerging feasible technologies that can enhance safety and evaluate whether to adopt them. Start low-tech and move up the ladder. For instance, consider dome lights, then buggy whips, then buggy whips with lights, then collision warning devices, etc. Based on the mine operator’s hazard analysis, it may be that a lower-tech solution works fine.
- Train miners and other persons at the mine who are necessary to perform the work to identify and address or avoid hazards related to surface mobile equipment. Keep it simple. This training should be handled during new-miner training and annual refresher training and be site-specific. Mine operators should be doing this now.
- Identify a responsible person to evaluate and update the surface mobile equipment program at least annually.
Concerns with MSHA enforcement
As a result of the Rule, MSHA was requested by mine operators to use a performance-based approach to put safe operating and maintenance procedures in writing and to give them flexibility regarding technology. While big and small operators believe MSHA did a nice job with the Rule, they fear how MSHA will manage its enforcement due to its proclivity to expand enforcement from “an inch to a mile.”
- While no initial plan approval process is required, MSHA can impose significant obligations under the citation abatement mechanism, such as incorporating third-party documents. Don’t allow the agency to sneak unnecessary requirements into your operation through abatement. Be willing to challenge MSHA’s demands if you feel it is being abusive.
- MSHA is requiring contractors that mine, drill and/or blast, and repair equipment to have their own programs. This will likely require a flexible approach and will definitely require coordination among the parties.
If you have questions concerning this legal insight, please contact Michael Peelish who, in addition to being an attorney, is a mining engineer who had oversight of safety and health at U.S. and international MSHA and OSHA related facilities for almost two decades.
Following a surface equipment fatality at a mine owned by Peelish’s employer in 1995, he led a coal and metal/non-metal industry-only effort to create best practices for surface mines at the request of MSHA. After months of discussions (arguments) and meetings, including with NIOSH, this industry group’s efforts generated 20-plus best practices that were condensed to simple pocket cards and shared across the industry through inspectors, resulting in a significant knowledge gain and a reduction in surface fatalities.