Nothing Says ‘Happy New Year!’ Quite Like A Brand New Regulation From Your Friendly, Neighborhood Enforcement Agency.
By Brian Hendrix
To close out 2023, MSHA published a new rule, Safety Program for Surface Mobile Equipment. This latest contribution to the Code of Federal Regulations requires all mine operators to develop, implement and update a written safety program for surface mobile equipment.
For most mine operators, compliance with the new rule won’t require much. The new rule is relatively short and simple. It is a process and paperwork rule. Unfortunately, it is also simplistic.
By way of background, MSHA spent more than five years on the new rule, and it does not show. MSHA first published a request for information on mobile equipment and belt conveyor safety in June 2018, held a half dozen stakeholder meetings and “one webinar” and accepted comments for a short period.
In September 2021, MSHA published the proposed rule, accepted comments on the proposal for a few months and the held a public hearing on it. Almost two years later and just in time for Christmas, MSHA published the final version of the rule.
It applies to all surface mines (metal/non-metal and coal) and to surface areas of all underground mines. It does not apply underground. In MSHA’s words, the new rule is “performance-based” and requires operators “to identify and analyze hazards and “allows operators the flexibility to devise and tailor a safety program that is appropriate for their specific and unique mining conditions and operations.” The rule does not require mine operators to submit the programs to MSHA for approval.
As I said, it’s a relatively short, simple rule. Here are the key provisions:
§ 56/57.23002 Written Safety Program
(a) Each operator shall develop and implement a written safety program for surface mobile equipment that contains the elements in this subpart, no later than July 17, 2024.
(b) Each operator shall designate at least one responsible person to evaluate and update the written safety program, no later than July 17, 2024.
§ 56/57.23003 Requirements for Written Safety Program
(a) The operator shall develop and implement a written safety program that includes actions the operator will take to:
- (1) Identify and analyze hazards and reduce the resulting risks related to the movement and the operation of surface mobile equipment.
- (2) Develop and maintain procedures and schedules for routine maintenance and non-routine repairs for surface mobile equipment.
- (3) Identify currently available and newly emerging feasible technologies that can enhance safety at the mine and evaluate whether to adopt them.
- (4) Train miners and other persons at the mine necessary to perform work to identify and address or avoid hazards related to surface mobile equipment.
(b) The responsible person shall evaluate and update the written safety program at least annually, or as mining conditions or practices change that may adversely affect the health and safety of miners or other persons, as accidents or injuries occur, or as surface mobile equipment changes or modifications are made.
(c) The operator shall solicit input from miners and their representatives in developing and updating the written safety program.
§ 56/57.23004 Record and Inspection
(a) The operator shall make the written safety program available for inspection by authorized representatives of the Secretary and provide a copy upon request.
(b) The operator shall make the written safety program available for inspection by miners and their representatives and, at no cost, provide a copy upon request.
Under the rule, a “responsible person” is a “a person with authority and responsibility to evaluate and update a written safety program for surface mobile equipment.” 30 C.F.R. § 56.23001. MSHA also defines “surface mobile equipment” to mean wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being moved, and any powered equipment that transports people, equipment, or materials, excluding belt conveyors, at surface metal and nonmetal mines.” 30 C.F.R. § 56.23001.
After reading the above, you are probably thinking: “We’ve been doing all of this for years.” The simple fact is that most mine operators already “identify and analyze hazards” posed by mobile equipment and have a “safety program” aimed at mitigating those hazards.
Most mine operators have all sorts of site-specific and equipment specific policies, procedures and rules related to mobile equipment safety and cover the topic extensively in training. Preventative maintenance programs for mobile equipment are standard in the industry.
The cost side of MSHA’s cost-benefit analysis of the rule reflects the fact that it is a paperwork rule. MSHA estimates that “[i]n the first year, the average burden per [mine] for developing a safety program, combining hazard analysis and technology evaluation, identifying actions operators will take to maintain and repair equipment and train miners as well as making available and copying the written safety program, is 39.85 hours.” After the first year, MSHA estimates that it will take operators an average of 7.58 hours annually to “update a safety program.”
On the benefit side, MSHA’s claims that the new rule will prevent “60 fatalities, 7,298 injuries, and 240,954 workdays lost annually” over the next 10 years. I am, to put it very mildly, skeptical.
First, the rule essentially requires mine operators to create a record (if they haven’t already) of everything they’ve been doing (for years, in many cases) to address mobile equipment safety. That’s it. Yet, MSHA claims that, by making a list of everything that operators are doing to address mobile equipment safety (and by checking it not twice, but annually), operators will prevent six fatalities and thousands of injuries every year.
Like I said, I’m skeptical. I’ve participated in a lot of accident investigations over the years. I have never, not once, thought “If only they’d had a written program, this accident wouldn’t have occurred.” Programs, policies, procedures, training, etc. all play important roles, but a culture of safety isn’t created by or fostered with more paperwork.
MSHA’s new rule almost certainly won’t improve safety or health. It’s not a sound, wise or effective regulation. Nevertheless, it (or soon will be) the law.
Compliance won’t be difficult or all that time-consuming, given that it’s a paperwork exercise, and I would take it as an opportunity to genuinely reevaluate or reassess mobile equipment safety at your mine. It’s something, and it can’t hurt.
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].