MSHA’s Working Alone Standard Has Virtually Nothing To Do With Recent Fatalities.
By Brian Hendrix
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.
Brian Hendrix, a member of Husch Blackwell’s Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. [email protected], 202-378-2417.