The Mine Safety and Health Administration (MSHA) is rolling out an aggressive fatality prevention initiative in response to a spike in fatalities at metal and non-metal (MNM) mines over the last sixteen months.  Since October 2013, 37 MNM miners have lost their lives, more than double the number of MNM fatalities in the previous three fiscal years combined. MSHA announced the initiative during two stakeholder conference calls last week and explained that the agency will focus on outreach, education, and enforcement to improve miner safety.  Operators should expect the agency to focus on the enforcement prong, however, as MSHA has already temporarily reassigned coal mine inspectors to inspect MNM mines, dispatched teams of inspectors to “walk and talk” with hourly miners under special emphasis designations, and directed inspectors to scrutinize a number of hazards, job categories and standards associated with fatal accidents over the past two fiscal years.

Outreach:

On January 30, 2015, Assistant Secretary of Labor for Mine Safety and Health, Joseph A. Main, announced via letter that MSHA would redouble efforts to address the “unacceptable increase” in fatalities at MNM mines in recent months.  MSHA then held two public conference calls on January 30 and February 2 to introduce the initiative and ask for participation and buy-in from all stakeholders.  Assistant Secretary Main repeatedly underscored that MSHA feels a sense of urgency to improve safety and health for MNM miners.  Administrator for Metal and Non-Metal Mines, Mr. Neil Merrifield, also made clear that MNM operators should not expect a business as usual approach from MSHA in the coming weeks and months because “business as usual is not working” to keep miners safe and healthy.  The agency’s swift rollout of the fatality prevention initiative suggests that operators should heed that warning.

Education:

MSHA released a detailed presentation summarizing the agency’s investigations into the MNM fatalities over the past 16 months.  The presentation, intended to be an educational tool for stakeholders, includes descriptions and photographs of the location of all 37 fatalities and identifies trends in the accident data.  Data is categorized by accident classification (e.g., powered haulage, falling / sliding material), commodity, state, occupation of miner, mine size, and years of mining experience.  Both Assistant Secretary Main and Administrator Merrifield emphasized that MSHA would focus its training and enforcement efforts on the spikes in fatality data for particular occupations, job classifications, and commodities.

Enforcement:

Effective immediately, underground and surface MNM operators should be prepared for heightened MSHA presence on their mine sites.  A number of coal inspectors have been temporarily reassigned to assist with MNM inspections, and inspectors operating under a “Special Emphasis Program” (E17 Inspection Activity Code) have already been dispatched to “walk and talk” to miners throughout MNM operations.  The content of these conversations will no doubt be relayed to the appropriate Field Office representatives, and operators should expect follow-up MSHA inspections and enforcement, particularly for those operations where training or safety is perceived as lacking.

Enforcement efforts will focus on the areas that, according to MSHA’s data, have contributed to the uptick in deaths in the last several months.  Specifically, operators can expect scrutiny in the following areas:

•  Supervisor Training: Supervisor fatalities have increased dramatically since October 2013 – with 9 fatalities of miners in supervisory roles – up from 3 in the FY 2011-2013.  Thus, operators can expect MSHA to look closely at supervisor training records to ensure that supervisors are trained properly, including task trained, for the duties they are performing on the job.  Operators should also be aware that MSHA’s renewed inspection-interest into supervisory behavior could yield increased reliance on Section 110(c) of the Mine Act.

• Task Training: Both stakeholder calls and MSHA’s stakeholder letter stressed the importance of miner training.  Indeed, of the 28 accident inspections that have been completed to date, MSHA has issued six task training citations to operators.  We recommend that operators review their task training policies and ensure that miners are properly trained for all elements of their day-to-day tasks.

• Work Place Examinations / Pre-operational Inspections: MSHA identified several pre-shift inspection standards as contributory factors in a number of the 37 fatal accidents, including 30 C.F.R. §§ 56.18002 (examination of working places), 56.14100(b) (examination of equipment for defects affecting safety), 56.3200 (correction of hazardous conditions).  Operators should expect increased interest in performance and documentation of work place examinations and pre-operational inspections.  Inspectors will look to assure that hazards or safety defects are being identified and promptly fixed.  If an inspector determines that an operator knew or should have known about a safety defect and failed to take timely remedial action, operators should expect heightened enforcement and increased penalties under Section 104(d) of the Mine Act.

• “Rules to Live By” (“RTLB”) Standards: Of the 28 accident investigations that MSHA has completed, RTLB standards have been cited 24 times.  For example, in addition to the six violations of 30 C.F.R. § 46.7(a) (New task training), MSHA has issued five violations of 30 C.F.R. § 56.9101 (Operating speeds & control of equipment).  Enforcement personnel will be looking closely for alleged violations of RTLB standards, and where found, operators should expect serious paper and penalties.

• Protective Equipment: Both Assistant Secretary Main and Administrator Merrifield emphasized during the stakeholder calls that the agency will be focusing on proper use of seatbelts, fall protection, as well as personal protective equipment.  We recommend that operators examine their PPE policies and re-train miners on proper and appropriate use of seatbelts, life vests, and fall protection.

• Sand and Gravel / Cement Operations: Nine miners died at sand and gravel operations and four at cement plants, up from three fatalities and one fatality, respectively, between 2011 and 2013.  Thus, sand and gravel operations and cement plants should also expect immediate inspection and careful scrutiny.

Reversing the fatality trend at metal and non-metal mines is an MSHA enforcement priority, and we expect the agency to use all available tools under the Mine Act to bring about change.  MNM operators should, in turn, reexamine and consider enhancements to existing supervisor, task, and PPE training procedures. Similarly, operators should consider reexamining pre-shift and workplace inspection procedures, in addition to compliance with all standards associated with MSHA’s Rules to Live By program. As always, modeling a “culture of safety” from the top down is the best strategy, and particularly so, given the increased scrutiny that MNM operators will no doubt face in the weeks and months ahead.