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MSHA program aims to enhance driver safety

By and |  June 20, 2022
Headshot: Margo Lopez

Lopez

Headshot: Bill Doran, Ogletree Deakins

Doran

On the Mine Safety & Health Administration’s (MSHA) website, there is an Enhanced Enforcement Program focused on mine operators’ responsibilities that aims to reduce accidents, injuries and fatalities for contract and customer truck drivers, as well as managers and supervisors performing mining work.

It was posted with little fanfare. Such little fanfare that most operators, and even a few safety attorneys, were not aware of it until inspectors began showing up at operations at the end of May with a copy in their hands dated Feb. 28, 2022.

MSHA says this program is needed because an analysis of accident data indicates that these types of personnel make up a significant proportion of recent fatalities. The bulk of the written program is focused on drivers, with just a brief reminder that managers and supervisors who perform mining work must be task trained like any other miner.

The agency plans to address the driver training issue by having inspectors focus on an operator’s compliance with a number of specific regulations. The effectiveness of that compliance will apparently form the basis for the inspector’s evaluation of an operator’s training. Citations issued for failure to adequately comply with specified regulations or task or hazard training regulations will be considered for special assessment.

Although unmentioned in the program, that certainly means these types of citations will be automatically assigned a higher gravity. Interestingly, the document that inspectors have been distributing states that “[a] special assessment, as a proposed penalty, can be as high as $291,000.” This is apparently a reference to the possibility of these citations being issued as unwarrantable failures and designated as flagrant pursuant to section 110(b)(2) of the Mine Act. This statement does not appear in the version of the program posted on MSHA’s website.

Of particular note, the document states that mine operators “must assure that miners have the skills necessary to perform tasks in a safe manner.” This, of course, goes without saying. But there are some problematic elements in what follows in the document, specifically with respect to its application to customer truck drivers.

The new program goes on to say that this is particularly true for customer or contract truck drivers and that truck drivers must be trained in the tasks necessary to perform their jobs at the mine. MSHA inspectors will focus on standards such as control of equipment, use of seat belts, chocking of wheels and pre-operational inspection.

While most people in the mining community are familiar with the fact that contractors are “operators” under the Mine Act and are obligated to train their personnel in the above requirements, the application of some of these requirements to customer truck drivers creates questions.

Mine operators have never been responsible for conducting task training of customer truck drivers. At most mines, customer truck drivers receive site-specific hazard training – either in written form or by signage. This training contains many of the requirements set out above but certainly does not rise to the level of task training that “assures” necessary skills. The task training requirements of 30 C.F.R. §§ 46.7; 48.7 and 48.27 are applicable to miners only. Customers and over-the-road truck drivers are expressly excluded from the definition of “miner” (specifically at section 46.2).  How MSHA intends to require task training for non-miners remains to be seen.

There are a number of questions, therefore, regarding how this is going to work. For instance, are mine operators required to have customer drivers conduct pre-op checks when they arrive at the property? Do they have to perform functional brake testing? It does not seem like any of this is appropriate without notice and comment rulemaking. The agency certainly needs to provide more information. The enforcement program does say that compliance assistance will be provided to some operators through outreach by the Educational Field & Small Mine Services staff.

At minimum, mine operators should be prepared for increased scrutiny of contractor and customer driver compliance on mine property and the threat of heightened penalties that accompany noncompliance.

Bill Doran and Margo Lopez are with the law firm Ogletree Deakins.


Featured photo: P&Q Staff


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