MSHA proposes mobile equipment safety rule

The Mine Safety & Health Administration (MSHA) published its long-awaited proposed rule on Sept. 9 addressing surface mobile equipment safety.

The proposal is notable both for what it contains and what it does not. 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 actually provides will depend on how MSHA comes to enforce it over time.

Below is a brief summary of the rule followed by some initial considerations for operators as they prepare for what may come.

Summary

When MSHA began this rulemaking in 2018, it published a request for information that addressed not only mobile equipment at surface mines, but also belt conveyors at surface and underground mines.

With the proposed rule, MSHA decided not to include belt conveyors. The rule is now intended to cover only surface mobile equipment, which MSHA defines as wheeled, skid-mounted, track-mounted or rail-mounted equipment capable of moving or being moved, as well as any powered equipment transporting people, equipment or materials, excluding belt conveyors, at surface areas of mines.

MSHA also says the rule’s requirements will not apply to mine sites with fewer than six employees. Mine operators would be required to have a safety program in place within six months of the effective date of the final rule.

Key requirements

MSHA proposes that the safety program includes actions an operator would 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 others at the mine necessary to perform work to identify and address or avoid hazards

An operator would be required to designate a “responsible person” who shall be responsible for evaluating and updating the written safety program. The program would 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.

The operator would be required to make the written safety program available to an inspector, a miners’ representative or any miner, upon request.

Initial thoughts

Operators will likely welcome the fact that the rule does not require the operator to obtain formal MSHA approval of the safety program. This follows the model for Part 46 training plans, which, unlike training plans required for underground and certain other types of mines under Part 48, are not subject to a formal submission and approval process with MSHA.

While this would appear to give operators flexibility to tailor their program to the mine and revise it fairly easily, operators will want to be alert for any inconsistent enforcement as to the contents of the written safety program. Flexibility for operators also leaves them subject to the discretion of field enforcement personnel. MSHA providing templates and other guidance should help counteract this to some extent.

Operators will also want to be aware of the possibility that MSHA will likely issue citations not only where a written safety program is deficient on its face, but also in instances where operators do not follow any elements in the program. This may be especially concerning with regard to maintenance and repair activities.

The proposal says operators need to integrate existing compliance processes under MSHA’s standards with any manufacturer’s recommendations and assure that hazards in all phases of work are examined and analyzed. Perhaps further guidance on this will be forthcoming, but, as it’s currently drafted, the proposal would appear to broaden MSHA’s enforcement over maintenance and repair.

These are just a few things operators may want to consider in preparing comments on the proposed rule, which are currently due Nov. 8. Operators and other stakeholders also may want to encourage MSHA to issue detailed policy guidance to aid in understanding how MSHA intends to enforce these new requirements.

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

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Featured photo: Pit & Quarry Staff