by brian hendrix
Last year, the mining industry experienced its second lowest annual fatality rate, and the injury and illness rates remained low. The industry doesn’t appear to have lost any ground on safety or health during the current global pandemic, but holding ground will be easier than improving upon it. To improve, many in the industry are looking to technological solutions. Last year, Assistant Secretary of Labor for Mine Safety and Health Administration (MSHA) David Zatezalo told S&P Global, if “enforcement doesn’t get it done… It’s time for technology to come to the rescue.”
Unfortunately, enforcement may get in the way of technology as it races to the rescue. The assistant secretary and MSHA could easily change that.
It’s fair to say that most would agree with the assistant secretary about the promises and potential benefits of technology. Technology is the “application of scientific knowledge for practical purposes.” That sounds simple, but we all know the process is not. Developing and acquiring that knowledge, applying it and making it work in the real world is typically complex and difficult. Without the right people, resources, innovative engineering and design work, and a lot of trial and error, the process fails. Often, even with all of that, it still fails.
So, what can MSHA do to facilitate this process? From an enforcement standpoint, MSHA may be hostile to the trial and error that is vital to the process.
Let’s use blind spots on mobile equipment as an example of a hazard that manufacturers and mine operators are working to address with a range of different technologies. Haul trucks, like all equipment, have blind spots. Practices, policies, (e.g., traffic control plans) and training mitigate — but don’t eliminate — the risks to miners created by those blind spots. Audible warning devices, cameras and proximity detection systems are all technological means to further mitigate risks.
When a mine operator installs a new camera or proximity detection system on a haul truck, they do not know if it will work or not. It might not work at all or work well in certain environments. It might not work as expected or might not be rugged enough. It might be too unreliable, complex or time-consuming to maintain. Miners might reject the device because of this.
Even with all of that, a mine operator (often working with the supplier) may still figure out how to make the device work. If not and if the operator removes the device, the operator might have a problem with MSHA.
Take the mine operator of a surface mine who purchases a new haul truck loaded with all sorts of options. It’s equipped with every bell and whistle, including a proximity detection system. The manufacturer trains the operator’s best haul truck drivers and maintenance crew on the new truck and it is put into service. Three months later, everyone agrees its proximity detection system is poorly designed and completely unreliable. It has yet to make it through a single shift. The haul truck itself is great, but the proximity system is terrible. So, the manufacturer offers to remove the system and reimburse the operator for the cost. The mine operator readily agrees.
Problem solved, right? After all, the operator was not legally obligated to purchase the new haul truck with the optional proximity detection system. The operator was free to purchase the new haul truck without the optional proximity detection system.
When the friendly, neighborhood MSHA inspector arrives for a regular inspection and hears that the new system was removed from the truck, we don’t know how they will react.
Will the inspector cite the mine operator for violating 30 CFR 77.404(a) by failing to maintain the truck in a safe operating condition? Will the inspector cite the operator for violating 30 CFR 77.1606(c), reasoning that the removal of the proximity detection system created a defect that affected safety that was not corrected? Or will the inspector simply encourage the operator to keep at it, continue working to develop, identify and implement ways to further mitigate the hazards?
The inspector shouldn’t cite the operator, and many wouldn’t. If the inspector cites the operator, the commission should vacate the citation. Nevertheless, the uncertainty is a problem.
However, it is a problem the assistant secretary could easily address with a very simple policy on the enforcement of standards like 30 CFR 77.404, 77.1606, etc., in situations like the two described above. If as the assistant secretary said, it’s time for “technology to come to the rescue,” it’s also time for a policy that keeps MSHA enforcement from hobbling the development of technological advancements in mine safety and health.
Brian Hendrix is a partner at Husch Blackwell. He can be reached at brian.hendrix@huschblackwell.com.
