A Disturbing New Reality

We As An Industry Are Searching For the Answer to Increased Fatalities – So Is MSHA.

By Mark Savit, Jackson Lewis P.C.

By now, everyone has heard about the recent surge in fatalities in our industry. Beginning in October of last year, there has been a disturbing increase in the number of fatalities year after year.

As of publication, there have been 12 fatalities in the metal/nonmetal sector as opposed to seven at this time last year, and only 16 during the full year for both 2011 and 2012. What makes this even more disturbing is that there have been steady decreases in both total injury rates and total reportable injury rates.

Just to further complicate the issue, a number of the fatalities have taken place at operations with historically exemplary injury rates. In other words, looking back at a successful safety program should not be taken as an opportunity for complacency. Whether this sudden tragic increase is just a statistical anomaly or a real trend is yet to be seen, but it certainly raises questions about the traditional view that fatalities are generally a fixed percentage of total injury rates.

Why would this be a subject of the lawyer’s column? The answer is simple; just as we as an industry are searching for answers – so is MSHA.

MSHA has made it clear that it will be focusing on two regulatory areas – training and workplace examinations – in addition to its “Rules to Live By” program. Furthermore, MSHA has said that it is going to concentrate on mines with what it believes to be troubling compliance histories, apparently regardless of past safety performance.

What does this mean from a legal standpoint and what should operators do to reduce MSHA liability to the maximum extent possible? Here are a few ideas:

Keep track of your enforcement history. If MSHA is going to target operators with what they consider to be troubling compliance histories, it would be wise to know where you stand as compared to other similar operations, especially within the same field office or the same district.

If you are at or above the average S&S rate, citation rate, or elevated action rate for your sector and district, you should take whatever action necessary to spot potential violations in advance and address them before your next inspection. This may seem obvious, but believe it or not, many operators have no idea where they stand and wonder why they have been selected for extra inspection activity.

Task Training
Task training rules are not exactly a model of clarity and MSHA tends to look for any deficiency that they can find relating to that part of a specific task which appears to have a relation to an accident. In the last several task training matters that I have worked on involving mobile equipment, MSHA has stressed using an operator’s manual as the basis for task training.

They have also taken the position that not having a manual available for such training is an indication of increased negligence. The bottom line is that having an operation manual on hand and training based on that manual limits the allegations of inadequacy that can be made against you in an enforcement proceeding.

Similarly, having an SOP (and, almost more importantly, following it) will also provide a basis for maintaining that training was adequate. CAUTION: From a liability standpoint, having procedures and not following or enforcing them is worse than having no procedures at all.

Inexplicably, Section 56/57.18002(a) only requires that workplace examinations be made “at least once each shift.” In other words, contrary to the commonly held view (also held by quite a few inspectors) that it is a “preshift exam” requirement, it clearly is not.

So while technically no workplace exam is required to be made at any particular time during the shift, good safety practice would dictate doing such an exam before work begins in the area. Given MSHA’s recent emphasis on doing good workplace examinations, it would be advisable from a liability standpoint to conduct the examination early in the shift, get the paperwork filled out and take any corrective or preventative action necessary before beginning work.

None of this guarantees that MSHA will not issue a citation under this standard for failing to have discovered whatever caused the accident, no matter how subtle or difficult that might have been when the exam was actually conducted. But remember, the fact that there was an accident doesn’t mean that a standard was necessarily violated.

The advice above is not safety advice – it is compliance advice. I always remind folks that I’m not the safety guy, I’m just the lawyer. But I think you can see that the advice also has a safety payoff, especially with regard to workplace exams, where strict adherence to the letter of the regulation would not be very good safety policy.

And that is an important distinction to make. I cannot tell you how many times I have heard that compliance with MSHA regulations alone will not create an adequate safety program. The converse is also true. Having a good safety program will not necessarily create a good compliance history.

Getting a Handle
Notwithstanding any of this, the onus is on us as an industry to figure out what is behind the recent surge in fatalities. If we cannot get a handle on this, we face even more scrutiny and restrictions from regulators. Enforcement of the regulations is MSHA’s job.

Compliance is ours. But beyond that, we have an independent obligation to get to the heart of the problem that has led to these recent tragedies. It will likely be answered outside of the regulations and we are the only ones equipped to figure that out.

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