Does MSHA Enforcement Curb The Adoption Of Developments In Mobile Equipment Safety?
By Brian Hendrix
Last September, MSHA proposed a new rule on powered haulage safety, the “Safety Program for Surface Mobile Equipment” rule. MSHA has since held a (virtual) public hearing on the proposed rule, received several dozen comments from a range of industry stakeholders and is working on the final rule.
According to its Spring 2022 Semiannual Regulatory Agenda, MSHA plans to publish the final version of the new rule sometime in October. However, agency rulemaking plans and schedules aren’t exactly set in stone. It might be October. It might be early next year.
The final rule should be similar to the proposed rule. If so, the final rule will require mine operators to develop a written safety program for surface mobile equipment. Instead of universal mandates or a one-size-fits-all approach to powered haulage safety, MSHA proposed a more “flexible approach to reducing hazards and risks” that requires mine operators to “identify controls that prevent or mitigate these hazards, including the use of technology to reduce accidents, injuries and fatalities.”
That makes sense. The rule should encourage the development and “use of technology to reduce accidents.” Unfortunately, MSHA enforcement can frustrate (and has frustrated) the development and use of new technology.
Technology
Technology is the “application of scientific knowledge for practical purposes.” That sounds simple, but we all know the process is not. Developing and acquiring that knowledge, applying it and making it work in the real world is typically complex and difficult. Without the right people, resources, innovative engineering and design work, and a lot of trial and error, the process fails. Often, even with all of that, it still fails.
So, what can MSHA do to facilitate this process? From an enforcement standpoint, MSHA may be hostile to the trial and error that is vital to the process.
Let’s use blind spots on mobile equipment as an example of a hazard that manufacturers and mine operators are working to address with a range of different technologies.
Haul trucks, like other mobile equipment, have blind spots. Practices, policies, (e.g., traffic control plans) and training mitigate – but don’t eliminate – the risks to miners created by those blind spots. Audible warning devices, cameras and proximity detection systems are all technological means to further mitigate risks.
When a mine operator installs a new camera or proximity detection system on a haul truck, the operator may not know for certain whether or how well it will work.
- It might not work at all or work well in certain environments.
- It might not work as expected or might not be rugged enough.
- It might be too unreliable, complex or time-consuming to maintain.
- Haul truck drivers may not like or appreciate the new devices.
Even with all of that, a mine operator (often working with the supplier) may still figure out how to make the device work. If not and if the operator removes the device, the operator might have a problem with MSHA.
Options
Take the operator of a surface mine who purchases a new haul truck loaded with all sorts of options. It’s equipped with every bell and whistle offered by the manufacturer, including a proximity detection system.
The manufacturer trains the operator’s best haul truck drivers and maintenance crew on the new truck and it is put into service. Three months later, everyone agrees its proximity detection system is poorly designed and completely unreliable. It has yet to make it through a single shift. The drivers hate the system because it’s unreliable, but also because they find it loud and annoying.
The haul truck itself is great, but the proximity system is terrible. So, the manufacturer offers to remove the system and reimburse the operator for the cost. The mine operator readily agrees.
Problem solved, right? After all, the operator was not legally obligated to purchase the new haul truck with the optional proximity detection system. The operator was free to purchase the new haul truck without the optional proximity detection system.
Here Comes MSHA
When the friendly neighborhood MSHA inspector arrives for a regular inspection and hears that the proximity detection system was removed from the truck, we don’t know how that inspector will react.
Will the inspector cite the mine operator for violating 30 C.F.R. 56.14100 by failing to maintain the truck in a safe operating condition, reasoning that the removal of the proximity detection system created a defect that affected safety that was not corrected in a timely manner? Or will the inspector simply encourage the operator to keep at it, to continue working to develop, identify and implement ways to further mitigate the hazards?
The inspector shouldn’t cite the operator in this example, and a good MSHA inspector wouldn’t. However, I know the commission has interpreted “affecting safety” broadly, and I’m sure there are inspectors out there who’d cite the operator on these facts.
This is a problem MSHA could easily address with a very simple policy on the enforcement of standards like 30 C.F.R. 56.14100 in situations like the two described above.
If MSHA expects mine operators to use technology to reduce powered haulage accidents, injuries and fatalities, MSHA should adopt a policy to keeps MSHA enforcement from hobbling the development of technological advancements in mine safety and health.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected].