Coal Age

SEP 2017

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48 www.coalage.com September 2017 legally speaking MSHA Changes Could Make a Real Difference by avi meyerstein As the Mine Safety and Health Administration (MSHA) gets new lead- ership, what chang- es are in store? Over 40 years, technolo- gies, safety records and industry econom- ics have changed dramatically, but MSHA has not always kept up. Here are some suggestions that could make a difference. MSHA should show that safety and health are its No. 1 priority. Some MSHA inspectors leave the impression that they write citations to fill a quota rather than to improve safety. Enforcement is an import- ant tool, but finding fault first and fore- most is counter-productive. Miners often talk about the "good old days," when in- spectors would raise a concern to prevent a hazard, not just to write a ticket. Most inspectors mean well. MSHA's new leadership should ensure that no one feels pressure to write citations for its own sake. MSHA can encourage and empower inspectors to be partners with responsible mine operators, working together to im- prove safety as the highest priority. MSHA should apply standards con- sistently. Congress only authorized one MSHA. But, some MSHA districts have gone rogue. They will allege that the way a mine has done business for decades is now a violation. One district has even re- quired different compliance at different mines under the same standard. This arbitrary approach weakens safe- ty policies and training; confuses everyone about what the rules are; and is simply unfair. MSHA's new leaders need to keep a closer eye on the locals so the agency speaks with one voice nationwide. Be clear about what it takes to comply. In order to comply, you need to know the rules. But, inspectors sometimes refuse to say, claiming they can't tell an operator how to run its business. Instead, they'll demand a series of proposals from the operator and reject each one until they find one they like. This guessing game is a waste of time and resources. MSHA should be clear about what it takes to comply. MSHA should provide meaningful in- formal conference. Conferences at the dis- trict office should be opportunities to cor- rect inspector errors. While it's easier to get a conference now than before, it remains nearly impossible to get a meaningful one. When our clients conference a ci- tation, there's usually a good reason. A productive conference helps both sides cooperate and avoid unnecessary litiga- tion. MSHA's national office can help by requiring districts to offer meaningful conferences. It can also provide a national hotline or ombudsman to call when con- ferences are dead ends. Make sure inspectors collect all the in- formation. MSHA inspectors can't deter- mine whether a violation is an unwarrant- able failure or involves high negligence without considering knowledge and miti- gating circumstances. Yet, inspectors often only seek out ev- idence of misconduct, not good conduct. Some inspectors have testified (incor- rectly) that it's not their job to ask about mitigation. These inspectors clearly need more guidance and training. Learn to recognize accidents and mis- conduct. MSHA's accident investigations re- peatedly show two major blind spots. First, they almost never recognize an accident as an unavoidable, unintentional event. Sec- ond, MSHA pretends that miner error never causes accidents even though all humans make mistakes. MSHA has even refused to consider an unsafe act by a miner impaired by drugs or alcohol. The result: unfairly blaming miners for a co-worker's injury and accident reports that teach us nothing. MSHA's accident investigation hand- book actually tells inspectors to cast root causes as management failures. Human errors are mere "indirect causes." Respect the burden of proof. How many times have you seen inspectors assume that each violation is at least moderate negligence or S&S? In a recent deposition, one inspector didn't know the difference between an injury that "could" happen and one that likely "would" happen. So, he marked almost everything S&S. These citations are bad for both oper- ators and MSHA. They're likely to spawn litigation and undermine inspector cred- ibility. Inspectors need better guidance and training to respect the burden of proof. They cannot assume anything. They should collect evidence, follow the facts, and be confident that MSHA can prove any violations beyond a reasonable doubt. Complete inspections efficiently. Some mines say inspectors seem to take their time conducting routine inspections that stretch on for weeks. It would be more ef- ficient if inspectors were to put in some- what longer days and get inspections done as efficiently and as soon as possible. Support, train and demand more from inspectors. Inspectors in the field deserve more support and training, and in turn, MSHA should expect more of them. MSHA's new leadership should be curious: How many inspectors have academic degrees? Safety professional certifications? Meaning- ful mining experience? Mine management experience? Working knowledge of the types of mines they inspect? How many inspectors can correctly define negligence or S&S? How many have citations frequently overturned? MSHA should align resources for to- day's needs. In 1978, there were 242 mining fatalities. In 2015, there were 29. Everyone agrees that 29 is too many. Every worker deserves to come home safe. It's fair to recognize this is an 88% im- provement. While injury comparisons can feel unseemly, we have a duty to send re- sources where most needed. The number of coal mines is down 35% in the last five years, but the number of inspectors is only down 5%. While met- al/non-metal mines decreased by 9%, in- spectors there actually increased 5%. With fewer mines, MSHA may need fewer inspectors to cover inspections. Could MSHA's resources be better applied to maximize safety outcomes? Avi Meyerstein is a partner with Husch Blackwell. He can be reached at avi.meyer- stein@huschblackwell.com.

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