Operating safely when there is no MSHA standard

With another ConExpo-Con/Agg in the books, it is once again evident that the mining industry continues to make tremendous technological strides.

Aggregate operations are testing autonomous haul trucks and new types of automated mining equipment. Within the last decade, drones have come into more widespread use for many different purposes. Improved conveying systems, virtual reality training for equipment operators, enhanced respiratory protection options, and video cameras that prevent mobile equipment accidents, driver fatigue and attention monitoring systems are all being deployed.

And the list goes on.

These new technologies have the potential to improve safety and health at mines, either as a direct or indirect result – and many do. But they can also introduce new potential hazards.

Additionally, new technologies nearly always require new or revised procedures for operation and maintenance, and certainly new training.

The impact of new tech

When a new technology is introduced, it is tempting to assume that, at the time of implementation, all of the new associated risks will be identified and addressed. This, however, would be a mistake.

It is not unusual for new potential safety issues to emerge over time. From a legal perspective, as well as for safety, it is important for operators to be on the lookout for new issues and make any necessary adjustments to operating procedures, safety rules and training.

It is also important not to become overly reliant on tech solutions where safety is concerned. All too easily, complacency can creep in when we assume all the new bells and whistles take care of everything. It is important not to forget the limits in the technology.

Additionally, it is essential to be mindful of the human element in all of this. We see in our practice time and again that people can be unpredictable, including sometimes overestimating the protections new technology offers. Shortcuts can be taken, and new equipment can be misused, leading to exposure to safety hazards. Training and regular observation of work practices can help detect and correct these.

MSHA’s role

So where is the Mine Safety & Health Administration (MSHA) in all of this?

The agency is generally far behind in adapting its enforcement capabilities to deal with newly introduced technology. This is because formal rulemaking to adopt new safety standards can take years to complete. As a result, the agency is left having to try to apply existing standards to address new hazards, or face the reality that there simply is no current standard to apply.

Sometimes, inspectors try to apply an Occupational Safety & Health Administration (OSHA) standard to fill a gap where there is no MSHA regulation to enforce. This is not appropriate, and any such citation should be vacated.

MSHA is only authorized to enforce its own standards in the 30 C.F.R. and, where there is no MSHA standard, there can be no violation under the Federal Mine Safety & Health Act.

Often, MSHA will try to fill the gap by expanding the meaning of an existing MSHA regulation. We’ve seen this where MSHA will issue citations under one of its broadly written standards, such as the safe access standard at 30 C.F.R. § 56.11001. MSHA will use that standard to issue citations covering a range of situations, including fall hazards associated with new mobile equipment design or, perhaps in the future, a miner entering an area where automated mobile equipment is operating.

MSHA also issues citations under the safety defects standard at 30 C.F.R. § 56.14100, alleging that things such as backup cameras on equipment, once installed, must be maintained in functional condition – even though they are not required under any specific MSHA standard.

Unlike OSHA, MSHA does not have a general-duty clause to provide for wide latitude in enforcement. OSHA can use the general-duty clause in certain circumstances to require employers to implement feasible measures to provide for safety protections when there is no specific OSHA standard on point. The Mine Act does not include a general-duty clause. MSHA is limited in its enforcement powers by the specific standards it has promulgated.

This is not to say operators are in the clear if there is no MSHA standard. Operators know that to provide for a safe worksite, they must go beyond what the government’s standards require. Legal compliance is important, but it is not enough to provide a safe workplace.

Bill Doran and Margo Lopez are with the law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com. 

Featured Photo: Julian-Enrique/iStock/Getty Images/Getty Images Plus