Mandatory training contributes to record-low fatalities

Mining deaths have been on a long downward trend.

The 28 deaths that occurred in mines in 2015 were an all-time low. A number of factors contribute to this continuous improvement. Conscientious operator implementation of mandatory safety training requirements is significant. There is nothing comparable in general industry.

The Federal Mine Safety & Health Act of 1977 introduced training requirements. A Senate report referred to the Scotia coal mine disaster in 1976, in which an initial explosion followed by a second during recovery took 26 lives. Miners claimed they were sent underground to work without being trained – even on how to use their self-rescuer devices.

The Senate report also referred to the 1972 Sunshine silver mine fire in which 91 miners died because they were unable to escape carbon dioxide fumes. The report says miners were not adequately trained in secondary escape routes and did not know how to use their self-rescuers.

Today, efforts are focused on preventing individual deaths. There have been good results from comprehensive training – 40 hours for new underground miners and 24 hours for surface miners; annual refreshers for all miners; training of newly employed experienced miners; and the all-important task training.

Parts 48 and 46

Since 1999, training requirements are divided into Part 48 and Part 46. MSHA’s website explains: Training requirements are governed by sections of the federal code – 30 CFR Part 48 and Part 46. Part 48 covers all underground mining and surface mining of coal and some metals, like gold. Part 46 covers the aggregates industry, including granite, sand, gravel, lime and cement operations.

There are key differences. Part 48 trainers must be Mine Safety & Health Administration (MSHA) approved, and the agency keeps their instructor certification on file. Part 46 trainers do not need MSHA approval, but the mine operator must deem them competent.

Also, MSHA must approve training plans for Part 48 mines. Part 46 training plans do not require MSHA approval as long as they meet the requirements of the rule. The history of this division is interesting.

MSHA promulgated the Part 48 regulations in October 1978 to govern all mines. The National Industrial Sand Association, the National Stone Association, other associations and many operators challenged the initial regulations in the U.S. Court of Appeals for the Third Circuit. I argued the case.

The court noted: “The training regimen established by the regulations is rigorous and generally costly and the scope of coverage is broad.” This was an understatement in the eyes of mine operators, especially small operators, given the extensive administration requirements for small and large mines, which included conducting extensive and continuing training; creating written plans for MSHA approval; updating plans for all changed circumstances; securing trainers who could obtain certificates of MSHA approval; and preparing and maintaining records of all training provided.

The court held that the regulations “represent a reasonable and statutorily authorized exercise of the Secretary [of Labor’s] rulemaking power,” but this was not the end of the story. Representatives of sand, gravel and stone operations sought relief from Congress, which they got, not by a change in the law, but a change in MSHA’s budget.

A memorandum from the assistant secretary of labor describes the effect: “[N]one of the funds … shall be obligated or expended to carry out [the statutory training mandates] … with respect to any sand, gravel, surface stone … mine.”

This did not eliminate training requirements, but it prohibited MSHA from enforcing the requirements against the mines named. After years of exemption from enforcement, the aggregates industry, recognizing the value of mandatory training, asked to join with MSHA to develop new training requirements that would be appropriate for aggregates operations.

In 1999, the more flexible Part 46 regulations were adopted for these mines. The aggregates industry does well with comprehensive scheduled training and specifically targeted task training. Record-low fatalities reflect this.

Michael T. Heenan is with the national labor, employment and safety law firm Ogletree Deakins. His book MSHA Compliance Essentials is available in English and Spanish (2016). Contact him at michael.heenan@odnss.com.