Above and Beyond

What Happens When Practice and Technology Exceed the Regulations?

Many of the MSHA regulations that are currently in effect were written in the 1970s; at this time in history, digital meant using your fingers (digits). Since that time, technology has become so advanced that the regulations do not even address the hazards involved in mining.

How is MSHA addressing these situations? There are more issues to discuss on this topic than there is time to address in this article. Here is a brief discussion of some of the more challenging issues operators face.

Cell Phones

Who could have imagined how smartphones would create such a pervasive hazard for drivers? The National Safety Council estimates that 21 percent of all car crashes in 2010 involved talking on cell phones, accounting for 1.1 million crashes that year.

At least 3 percent of crashes are estimated to involve texting. The numbers can only be rising. Despite these statistics, there are no MSHA regulations that prohibit cell phone use while operating machinery. Does that mean you should not have a rule restricting cell phone use? Absolutely not.

Mine operations are increasingly adding cell phone policies to their safety policies procedures, most of which restrict ALL use of cell phones while operating equipment. At most, operators should be allowed to use tablets as part of their work when their vehicle is safely parked and they are standing in a safe location.

Autonomous Drillers and Haul Trucks

What about autonomous drillers and haul trucks? These are becoming very common around the mining industry. 30 C.F.R. 56/57.14207 provides that mobile equipment shall not be left unattended unless the controls are placed in the park position and the parking brake set.

Similarly, 30 C.F.R. 56/57.7012 provides that while in operation drills shall be attended at all times. Looking at these regulations, it would seem that autonomous drillers and haul trucks are not permitted on mine sites. However, MSHA has taken the position that if drills and trucks are being controlled remotely, they will be considered “attended” under the regulations.

High Pressure Injection Injuries

High-pressure injection injuries in the hand and upper extremity are very serious and are on the rise. These hazards were also not anticipated by the regulations, though the agency is likely to cite the defects affecting safety standard (30 C.F.R. 56/57.14000(b)) should an injury or incident occur.

Another standard to consider if an employee has a high-pressure injection injury is reporting under Part 50. In Secretary v. M-Class Mining, LLC, (Docket No. LAKE 2015-587) (ALJ Rae, May 5, 2017), an employee was injured by a high pressure hydraulic hose (4,200 psi). After the accident, the accident victim was conscious and mobile, but he had sustained a serious injury that caused an open wound and he verbally indicated he knew he was seriously injured.

Although his exact injuries were not known to the mine at the time of the accident, the victim was taken to the hospital and underwent emergency surgery for internal injuries.

MSHA issued two citations to the operator: one citation was issued for not maintaining machinery in safe operating condition (30 C.F.R. 75.1725) (this citation was settled) and other was issued for failure to report an injury in 15 minutes that had a reasonable potential to cause death.

The reporting citation was issued as a 104(d) for an unwarrantable failure to comply with a mandatory standard. At hearing, Federal Mine Health and Safety Review Commission Administrative Law Judge Rae upheld the reporting citation and increased the $5,000 penalty to $7,000. While not binding, Judge Rae’s decision would make it advisable that operators should seriously consider whether they need to report them under Part 50.10 when high pressure injuries occur.

Going Beyond the Standard

Have you ever been given a citation for equipment that does not work even though it is not required? Mine operators have received MSHA citations for various additions made to equipment that have failed to operate. However, those additions were not required by the standards.

For example, an operator has received a citation for automated steps on a truck failing to operate, when the original manufacturer’s method of access to the truck was in place and available for use. Operators have also experimented with back-up cameras on trucks when they still maintain compliance with 30 C.F.R 56/57.14132 and use back-up alarms and horn on equipment. They have repeatedly been issued citations for faulty back-up cameras, though they are still in compliance with the standard.

The phrase operators have heard over and over is, “Once you install a new feature, it’s got to be maintained.” This position goes against public policy as it discourages operators from trying innovative new ideas and improving safety features on their equipment. At least during this administration, MSHA has indicated it will stop this practice of penalizing operators for going above and beyond the standard.

From a safety standpoint, the industry must continue moving beyond the regulations in both best practices and in technological advances. Operators must now educate inspectors on new changes in technology. Working with the agency in a cooperative way to show them your new equipment and procedures will go a long way to reduce your enforcement problems.

Even inviting your local field office supervisor to your site (outside of an inspection) might be a great way to improve your relationship with the agency and inform them about your new safety initiatives and new advanced technology.

Please feel free to contact a member of the Husch Blackwell safety and health team to discuss your best practices and new technology and any enforcement challenges.

Donna V. Pryor is a partner at Husch Blackwell LLP. She represents those defending whistleblower complaints and contesting OSHA and MSHA safety citations. Additionally, Pyror offers training and regulatory insights to the firm’s multinational mining, manufacturing and heavy-industry clients. She can be reached at [email protected].

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