Proposed Mine Rule Focuses on Wrong Targets: Industry

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By Stephen Lee

July 26 — Human error, often the result of drug or alcohol impairment, is the real cause of most mining accidents, rendering a proposed federal rule unnecessary, industry representatives told the Mine Safety and Health Administration July 26.

Between 80 percent and 90 percent of all mining accidents are caused by human factors, said Todd Ohlheiser, executive director of the Colorado Stone, Sand and Gravel Association, testifying at an MSHA public meeting. Even when miners and managers aren't under the influence, they commonly break rules and take shortcuts, Ohlheiser said.

Yet the mining administration's proposed rule (RIN:1219-AB87) focuses entirely on inspecting equipment, which most mines already do a good job of, testified Joseph Casper, vice president of safety services at the National Stone, Sand and Gravel Association.

Under the mining administration's proposal, metal and nonmetal mine operators would have to examine their facilities and fix problems before a shift begins. The agency's current rule lets operators examine mines during a shift, when workers may already be active in unsafe conditions, the agency says.

The meeting was held to gather public input as the mining administration works toward finalizing its rule.

Giving MSHA More Ammo?

More broadly, business interests said mine environments are ever-changing and can't be fully inspected before each shift starts.

For example, at Martin Stone Quarries' mines, a full exam can take two hours, said Anne Kelhart, the company's safety director.

Kelhart also told MSHA that requiring examinations before the start of each shift will mean that at least some examinations will take place in darkness. Without daylight, “the most competent person in the world can miss hazards,” she said.

Other industry speakers warned MSHA about a proposed provision that would require operators to record the results of all mines examined, and for the examiners to sign and date those records.

Henry Chajet, an attorney with Husch Blackwell LLP, told the agency that individuals won't want to sign the examination records for fear of being held liable if an accident should happen and the mining administration later finds that the problem hadn't been identified during the exam.

“This change would not benefit safety,” Ohlheiser said. “Rather, it would simply give MSHA more ammunition for writing citations.”

Addressing the same concerns, Brett Smith, senior director of government relations at the American Iron and Steel Institute, asked the agency to consider including a safe harbor provision to protect examiners.

Lawyer Queries Hurry-Up Timing

Chajet further said the mining administration hasn't quantified the rule's monetary benefits in its Federal Register preamble (81 Fed. Reg. 36,818).

“That tells us that you have not done the homework for this rule,” Chajet said.

He also noted that the mining administration appears to be rushing the rule through the pipeline, presumably in order to finalize it before President Barack Obama leaves office.

Other industry commenters said the rule would hamper the already-struggling mining sector, and that the current rule has been highly successful in preventing mine accidents and doesn't need to be replaced.

Union Defends Rule

Pushing back, James Frederick, assistant director of the United Steelworkers' health, safety and environment department, said the proposed rule is a good one because it focuses on prevention, which he called the key to protecting worker safety.

Most accidents—including falls, electrocutions and machine guarding incidents—can be identified and controlled in a thorough mine exam, Frederick said.

And Josh Roberts, health and safety administrator at the United Mine Workers of America, testified that the only examiners who need worry about the new requirement are those who either deliberately cut corners or turn a blind eye to problems that are too expensive to fix.

“Honest people who try to follow the law have nothing to worry about,” Roberts said.

Frederick and Roberts were the only worker-side commenters at the meeting. They were outnumbered by 10 industry-side speakers.

Business groups also have asked MSHA to extend its comment period, which is set to expire Sept. 6. Sheila McConnell, director of MSHA's Office of Standards, Regulations and Variances, said the agency will consider those requests.

In June, mining administration chief Joseph Main said that requiring mine operators to find and fix hazards before miners start work “makes the most common sense in the world.”

To contact the reporter on this story: Stephen Lee in Washington at

To contact the editor responsible for this story: Larry Pearl at

For More Information

Information about MSHA's mine inspection rule is available at .

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