Back to the Future

Let’s Focus on the Things That We Can Do to Get a Better Result in 2019.

It’s the holiday season and, like everyone else, I am looking back over the last year while at the same time, looking forward to the next. A new year is filled with hope and this one is no exception. For me, Jan. 1 is like opening day of any sports season; every team is undefeated and, even if only for a single game, we can imagine that that streak will continue until a championship.

The same is true in the safety arena. Every Jan. 1, I, like so many of you, am filled with hope that this will be the year in which every miner goes home to his or her family in good shape. Each day creates fresh, hopeful, expectations … until one doesn’t. After 47 years in the industry, the bad news comes less frequently, but it still comes. Of course, each one is painful. We are a close-knit industry and every time we lose a colleague, a little piece of each of us passes too. But this column isn’t meant to be about loss. Let’s focus on the things that we can do to get a better result in 2019.

What We Can Do

Everyone agrees that compliance with MSHA regulations is no more than a baseline. That merely means that we must develop our own safety programs that go beyond those standards. That effort needs to explore several different avenues in order to be effective.

First, we need to recognize that many of the metal/nonmetal standards were first developed in connection with the old Metal/Nonmetal Safety Act of 1966 and incorporated into the current regulations with just minor wording changes. That means that many of MSHA’s regulations are pushing 50 years old. According to the Bureau of Labor Statistics, the median age of our workforce (even considering an aging workforce) is 46. That means that most of our miners were not even born when the regulations were adopted.

That doesn’t mean that the regulations are meaningless or irrelevant, but it does mean that they are so out-of-date that they completely fail to take advantage of the incredible technological advancements that have taken place during that time. Don’t just think of cell phones, think computers. The first home computers didn’t even appear until 1975. Miners under 35 have never lived in a world without computers. It is unrealistic to think that, as our workforce turns over, the ability of miners to even understand the rationale behind the regulations or why they don’t take advantage of current technology will be a significant factor in our safety training programs.

All this means that it is up to us to figure out how to incorporate the technology from our fingertips into our safety programs. We will inevitably have to think beyond or around the regulations to do that. The bottom line is that, as an industry, we need to have the courage to experiment with new approaches taking advantage of – or coping with – the technology that is being incorporated into our operations at an accelerating rate.

In order to accompany the modernization of our own programs, we also need to develop better ways to measure success. As an example, baseball essentially counted runs, hits, errors, RBIs, balls and strikes until the late 1980s when, using computerized analysis, they developed advanced statistics (remember the movie Moneyball?) that proved to be far more predictive of success. We are still essentially counting incidents and normalizing them over the number of hours worked. We are awash in data that could be analyzed to look at those which are predictive of safety success, rather than reactive to it. There is no reason why we shouldn’t be looking hard at this.

What MSHA Can Do

MSHA has already initiated an effort to modernize its regulations. It has asked for industry suggestions on how to do that. But, as I’ve pointed out before, this process suffers from two handicaps. First, industry is going to be understandably reticent to suggest new regulations that it perceives as being more restrictive on them. But more importantly, the process for changing regulations is resource-intensive and time-consuming.

It is so much slower than the rate of technological improvement that any regulations that are eventually adopted will either be overtaken by evolving technology before they can be finalized, or be will be outdated so shortly after adoption that the change will not be worth the effort it would take to make it.

For this reason, MSHA will have to be more open to experimentation. We are already seeing signs that this is happening. In the past, MSHA would routinely cite problems with experimental equipment where the experiment had not been successful.

They argued that, once installed on a piece of equipment, the experimental accessory had to be maintained regardless of whether it worked. MSHA has recently announced in several fora that it will cease that practice. It has gone so far as to say that if an operator is cited in such a situation, they should call headquarters and the citation will be vacated.

The other way in which MSHA could be both more open to experimentation and modernization is by reshaping the Petition for Modification (PfM) process into a facilitating rather than restraining mechanism. Without going into a lot of detail, relatively simple changes to the current PfM procedures would encourage, rather than discourage operators to present technological improvements to MSHA as alternative ways of achieving the same or greater level of safety than is currently achieved by the regulations.

This would be beneficial on a number of fronts. First, it would avoid much of the inefficient process used for changing the regulations themselves.

Second, rather than imposing a “one size fits all” regulatory solution on every operator, it would allow operators to propose solutions that work best for them and, eventually create an evolving menu of innovative, technological solutions to safety issues as they arise. Ideally, it could become a way for a repository of best practices to replace the minimum standards that now form the regulatory basis of MSHA’s mission.

I know these aspirations won’t come easily, but hey, it’s opening day. We’re all undefeated. There’s always hope.

Mark 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 [email protected].

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