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No One Accepts Fatalities, Injuries or Illnesses as Cost of Doing Business

Our mines and our miners have never been safer. Injury and illness rates across all sectors of the mining industry are at historic lows. The number of fatalities in 2015 dropped 38 percent from 2014. A miner is in a lot more danger driving to work than he is once he’s at work. Mining is not one of the most dangerous occupations in the country any longer. According to the Department of Labor, the injury and illness rates for retail are higher than mining. Retail! That’s amazing.

For mining, this is a huge accomplishment, and we all industry and MSHA – made it happen. As I see it, the best reaction to this accomplishment is to ask: how do we get even better, keep the trend moving in the right direction and speed up our progress? There are a good ways to answer that question. Here, I want to talk about a bad way to answer it.

Here it is: “I get upset when I hear people say that mining is an inherently dangerous occupation and that we have to expect fatalities,” the head of MSHA, Joe Main, told attendees at the National Stone, Sand & Gravel Association’s 2016 convention on March 22nd, as quoted by Bloomberg BNA. “We don’t have to accept fatalities as the cost of doing business in this industry.”

So, Assistant Secretary Main’s answer (or one of his answers) to “How to do we get even better?” seems to be “don’t accept fatalities as the cost of doing business.” Near as I can tell, he’s suggesting that fatalities occur simply because mine operators just don’t spend enough money or pay enough attention to the safety and health of miners.

Who accepts fatalities as the cost of doing business? Who has Main been talking to? Those were my first thoughts when I saw the Assistant Secretary’s remarks. I grew up in a mining family and have represented clients in the mining industry all over the country for many years. My partners have done the same and a lot more for almost four decades now. None of us have ever once met anyone in mining – in aggregates, metal, non-metal or coal – who just accepts “fatalities as the cost of doing business.”

Assistant Secretary Main has been around a lot longer than I have, and it’s certainly possible that he met someone in the industry at some point in the past who thinks that way. I don’t know who he had in mind, but I do know that the accomplishments in mine safety and health over the last decade alone clearly demonstrate that the industry as a whole does not act or operate as an industry that just “expects fatalities.”

Turn this Around

Let’s turn this around: have you ever seen the injury and illness rates for MSHA inspectors or for MSHA’s workforce more broadly? MSHA employs north of 2,200 people. Those are Assistant Secretary Main’s employees. I assume he considers himself accountable in some way for their safety and health, and I am certain that he cares deeply about their safety and health. Yet, according to the Department of Labor, one MSHA inspector was fatally injured in 2015, there were 35 lost time cases reported for the year, MSHA’s total case rate was 5.41 and its lost time case rate was 1.53. MSHA employees were injured on the job more frequently in 2015 than other Department of Labor employees (including OSHA’s employees). Compared to the entire federal government, MSHA’s safety performance was either average or slightly below average in 2015, depending on the metric you use for the comparison. A comparison of MSHA’s safety performance in 2011 to its performance in 2015 shows little improvement over that period. At best, the trend for MSHA is basically flat.

Why? If Main thinks industry can get to zero if it doesn’t treat fatalities, injuries and illnesses as the cost of doing business, why can’t MSHA get to zero with its own workforce? Does Assistant Secretary Main just chalk up the injuries and illnesses suffered by his own employees as the cost of doing MSHA’s work?

Main’s answer to the “how do we get even better” question also ignores the economic and financial realities of the mining industry. Good mine operators aren’t committed to safety because it saves money or because it’s smart business. First and foremost, mine operators work hard to prevent accidents and injuries because that is the right and proper thing to do. That said, working safe and the commitment to safety is also smart business. Unsafe mines are or will eventually be unprofitable mines. A mine operator who treats accidents and injuries as the “cost of doing business” will not be able to bear those costs for long.

Recognize the Cause

Finally, Main’s comments also reflect an unwillingness to recognize the cause of many accidents and injuries: unsafe acts. The simple fact is that unsafe acts cause many of the accidents and injuries that still occur in our industry. To be sure, hazardous conditions and practices still play a role, but that role grows smaller by the year and will continue to shrink. It’s also the case that the Federal Mine Safety and Health Act is largely a product of the approach to safety and labor/management relations prevalent in the 1960s.

The Act itself leads MSHA to focus on conditions and practices more than behavior. However, it does not prohibit MSHA from acknowledging the role that unsafe acts play, and it certainly does not prohibit MSHA working with the industry to address unsafe acts.

The industry can’t force MSHA into the 21st Century, but it can and has moved on from MSHA’s dated, 1960s approach to mine safety and health. Today, safety professionals and the mining industry as a whole are increasingly focusing on behavior and working hard to create a true culture of safety for a very good reason: they know that the elimination of unsafe conditions and practices will only take us so far. Training, accountability and shared responsibility for behavior and culture are essential to our collective success.

Assistant Secretary Main is, without any doubt in my mind, personally and very deeply committed to miners’ safety and health. His intentions are honorable and his commitment is unwavering. That said, if his goal really is zero, he’ll not achieve it by claiming that fatalities are simply caused by mine operators who accept fatalities as the cost of doing business. He’ll not achieve it by thinking of industry as the “other side.” He’ll not achieve it with a dated, ideological and almost monomaniacal focus on conditions and practices. The mining industry knows that the only way to get where we all truly want to go is to increasingly focus on behavior and culture. That’s the way, and industry is following it. I truly hope MSHA will eventually follow along.

R. Brian Hendrix is a shareholder in the Washington, D.C., Region office of Jackson Lewis P.C. He advises clients on matters involving environmental, health, and safety law, focusing on litigation, incident investigations, enforcement defense and regulatory compliance counseling. Hendrix has extensive experience with federal and state agencies and has represented a host of clients engaged in a wide variety of manufacturing, production, extraction and service-related industries.