Detailing MSHA’s recent mobile equipment rule

By Bill Doran and Margo Lopez| February 12, 2024

Lopez

Doran

In December, the Mine Safety & Health Administration (MSHA) issued its final rule addressing surface mobile equipment safety.

The final rule is similar in many respects to the proposed rule. It appears to provide substantial flexibility for operators to develop a program that is best suited to their operations, but how much flexibility the rule provides will depend on how MSHA comes to enforce it over time.

The lack of specificity in the rule ultimately may lead to requirements that operators never anticipated, as well as inconsistent enforcement from MSHA.

The rule requires operators to develop a written safety program for mobile equipment within six months of the effective rule date. It was effective Jan. 19, but compliance through the creation of a written safety program is not required until July 17.

Rule summary

• Scope and timing. The rule covers surface mobile equipment, which MSHA defines as 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 mines and surface areas of underground mines.

MSHA’s proposed rule was for mine sites with fewer than six employees. The final rule expanded coverage to all mines, regardless of number of employees. The final rule also applies to independent contractors operating mobile equipment on surface areas of mines.

• Key requirements. MSHA proposes that a safety program include actions the operator will take to do the following:

• Identify and analyze hazards and reduce risks related to mobile equipment movement and operation

• Develop and maintain procedures and schedules for routine maintenance and non-routine repairs

• Identify currently available and newly emerging feasible technologies to enhance safety and evaluate whether to adopt them

• Train miners and other people at the mine necessary to perform work to identify and address or avoid hazards

The operator will be required to designate one or more individuals as a “responsible person” who shall be responsible for evaluating and updating the written safety program. The program will need to be updated annually or as mining conditions or practices change, as accidents or injuries occur, or as surface equipment changes or is modified. Upon request, the operator will be required to make the written safety program available to inspectors, miners’ representatives and miners.

Issues to consider

• Developing a program. While on the one hand it seems helpful that the rule appears to provide operators with flexibility in how they draft their mobile equipment program, operators may find this ultimately will give MSHA inspectors too much leeway in deciding what is and is not an adequate program.

MSHA providing templates and other guidance may help prevent this if they are specific enough to provide direction for operators and inspectors to follow.

Independent contractors may face additional challenges to ensure their written program is suitable for the mine sites they visit and in complying with mine operators’ site-specific requirements. Likewise, mine operators may be required to coordinate with contractors on content of their programs. There is little guidance in the preamble on how this is to be accomplished, though.

• Implementing a program. As operators draft their programs, they will want to keep in mind that MSHA may issue citations not only where a written safety program is deficient on its face, but where an operator does not carry out what it committed to do in the program.

As operators draft their program, they are essentially creating their own regulatory requirements. MSHA may try to hold them accountable for following to the letter what they say in their program is necessary for safe equipment operation.

Regarding maintenance and repair, MSHA’s preamble states that the rule is not necessarily meant to impose new requirements on operators. But the rule gives MSHA more opportunity to examine operators’ maintenance practices – including reviewing such practices in light of any manufacturer’s recommendations.

• Evaluating and revising a program. It is not clear what specific actions would satisfy the requirement that operators periodically evaluate current and emerging technologies, or what criteria would be used to determine what is a feasible technology.

What is clear is that the rule will require a program to be continually implemented and kept current. This will fall to the individual or individuals designated as the “responsible person.” That person could become the focus of individual enforcement, if MSHA were to consider him to be an “agent” of the operator.