Autonomous vehicles and MSHA

For years, one constant complaint by operators about the Mine Safety & Health Administration (MSHA) is that the agency is too slow to embrace new technology.

Critics point to advances in areas like guarding and respiratory protection, arguing the agency has been historically reluctant to innovate its rulemaking and enforcement efforts to allow more flexibility for operator compliance.

As dramatic strides are being made in the area of autonomous vehicles, a technology that is increasingly being tested and studied for use in underground and surface mining operations, there is some concern in the industry that MSHA is not adapting quickly enough to enable producers to deploy this new tech.

The apprehension basically relates to the fact that there are no regulations or policies relating to autonomous vehicles. Consequently, operators have no guidance with respect to whether or how MSHA will enforce certain rules.

For instance, is a traditional pre-operation examination required for an autonomous vehicle? What if the vehicle conducts its own self-monitoring exam? Do the wheels of an unattended autonomous vehicle have to be chocked? What safeguards will have to be in place when maintenance personnel enter the autonomous vehicle’s operating envelope to avoid a safe access violation?

MSHA is not alone in terms of a lack of regulations addressing these issues.

The Occupational Safety & Health Administration has not conducted any rulemaking regarding autonomous vehicles, either. And given the current administration’s effective moratorium on new regulations, there are probably no new rules on the horizon from either agency.

Where MSHA stands

Still, it would not be fair to say MSHA has its head in the sand on this topic. In a number of public settings, MSHA leadership has indicated it is open to working with the industry with respect to the use of this type of equipment.

MSHA leaders offer the opinion that unless there is a specific hazard to a miner who is in close proximity to the autonomous vehicle, MSHA enforcement personnel would probably not consider its regulations to be applicable.

Ultimately, they point out, those regulations are focused on miner safety. If a miner is not exposed to the risk identified in a standard, a citation is not warranted.

In this regard, agency leadership has indicated it does not think it is necessary for operators to file a petition for modification of every specific standard when there is no miner exposure to an autonomous vehicle. MSHA leaders, however, acknowledge the perspective on what constitutes exposure can differ widely depending on the specific observer’s level of experience and training. Given this circumstance, they suggest operators consult closely with their field office and district office to address gray areas.

It is clear MSHA leadership has also thought through some of the administrative implications of this type of equipment, as well. Leaders recently stressed that the agency does not anticipate operators will have to file for a separate Mine ID for each piece of autonomous equipment.

One senior MSHA manager recently emphasized that the agency does not want to be an impediment to the industry deploying autonomous equipment that can reduce the risk of miner exposure to hazards. That said, it was acknowledged that the agency is still developing its understanding of this tech.

Opportunity for discussion

On Feb. 4, MSHA introduced a new special emphasis initiative designed to address the recent spate of collisions between large and small equipment. The initiative is focused on promoting the exchange of industry best practices and training materials. This represents an opportunity for the industry to expand on the autonomous equipment discussion.

Of course, future enforcement will ultimately boil down to the procedures and safeguards surrounding a particular piece of autonomous mobile equipment. At some point, some level of rulemaking will probably guide most of this. In the absence of such rulemaking, however, consultation with MSHA will have to be the rule.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.