As the mining industry continues to wait for any new direction at MSHA to reveal itself, last week, MSHA published a request for information (RFI) in the Federal Register that could be the beginning of a new rulemaking on powered haulage equipment. The RFI covers aspects of both surface and underground mines, as well as both coal and metal/non-metal.
According to Assistant Secretary of Labor David Zatezalo, powered haulage accidents accounted for 43% of all fatalities in 2017 (13 fatalities). MSHA defines “powered haulage” to include both mobile equipment and conveyor accidents. The mobile equipment included in the RFI varies widely. If it moves or moves material, it’s included – conveyors short and long, surface and underground; front-end loaders of all sizes and LHD’s; gators, vans, service trucks, and skid steers; haul trucks of all types, from 40 to 400 tons.
In the request, MSHA asks the mining industry to share details not only about best practices, training, and policies that could reduce risks involving this equipment, but it also asks about innovative technologies and engineering controls. In particular, it mentions engineering controls for mobile equipment at surface mines that could ensure seat belt usage; provide collision warning or avoidance, and identify highwalls and dump points. It also seek comments on engineering controls to prevent accidents involving conveyor belts at both surface and underground mines.
MSHA wants answers to more than 20 specific questions and invites commenters to specifically identify sources of information they rely on and to comment on the technological and economic feasibility of various controls. Comments are not due until December 24, 2018, and MSHA says it will also hold stakeholder meetings to receive feedback on this issue.
Is the accident data reliable?
The RFI appears to be motivated by MSHA’s belief that these very broad categories of equipment are particularly responsible for serious injuries and deaths. For instance, the RFI notes, “Since 2007, 61 miners have been killed in accidents involving mobile equipment. MSHA conducted an investigation of all of these accidents” and “determined that contributing factors in many of these accidents included: (1) no seatbelt, seatbelt not used, or inadequate seatbelts; (2) larger vehicles striking smaller vehicles; and (3) equipment operators’ difficulty in detecting the edges of highwalls or dump points, causing equipment to fall from substantial heights.”
But, as MSHA admits in the RFI, that conclusion is based on MSHA’s accident investigations. As mine operators know too well, those investigations assume operator responsibility for every accident that occurs at a mine. MSHA will not, by policy, identify human error or behavior as a root cause of any accident.
Indeed, per MSHA’s Accident/Illness Investigations Procedures Handbook, “[t]he root cause identifies the reason that the mine operator’s rules, policies, procedures or programs failed to ensure that employees took appropriate actions to prevent the indirect causes that led to the hazard or unplanned event.” As a result, the conclusions MSHA reaches about the cause or causes of accidents are often incomplete or erroneous.
a truck slowly drifting off the edge?
For example, one of the 61 fatalities MSHA refers to in the RFI involved a 2007 haul truck accident. In that case, MSHA’s accident report cited two “causal factors” for the accident. First, “[t]he truck driver did not maintain control of the truck he was operating.” Second, “[m]anagement policies and procedures did not ensure that the truck driver wore his seat belt when operating the truck.”
Without a doubt, the haul truck driver was not in control of the vehicle at the time of the accident, and he was found not wearing his seat belt. However, the driver of the haul truck had more than 40 years of mining experience. He was a model employee and an advocate for seat belt usage. When the accident occurred, he was traveling approximately 15 mph up a 10% grade with a loaded truck on a straight section of the haul road.
The haul road—including the berm—was in good condition, and there was nothing wrong with the haul truck. Speed wasn’t a factor. Weather wasn’t a factor. The truck didn’t suddenly change direction or sharply veer off the road. Rather, it drifted gradually to the right, went through/over a berm and over a highwall. From the evidence, it did not appear that the driver applied the brakes or even attempted to steer out danger.
The mine operator had a seat belt policy, it required miners to wear seat belts, and it trained miners to use them. The fatally injured miner was very experienced, properly trained, and an advocate among the crew for wearing seat belts.
Why did he allow the vehicle to gradually drift over the highwall without trying to brake or steer away? Moreover, why wasn’t he wearing his seat belt when found? To most of us, these are the key questions we would want to answer. But, MSHA’s report doesn’t offer any answer or explanation.
Of course, there was an explanation. The evidence indicated that the miner almost certainly experienced a medical event prior to the accident, that he had lost consciousness before the haul truck traveled over the highwall. MSHA’s report did not mention this.
A truck hits the water
Here’s another example: A couple of years ago, MSHA investigated a haul truck fatality at a surface sand and gravel mine. According to MSHA’s report, the accident occurred when a when a haul truck traveled “beyond the dump site berm and down a slope, about 80 feet, coming to rest in 14 feet of water” in a partially flooded pit. The “cause of death was attributed to drowning.”
The haul truck had all the latest safety gear. It was in good condition and equipped with “a rear facing proximity detection radar unit that was designed to alert the driver when the truck approached objects behind the truck,” as well as a “back-up camera and a display monitor in the operator’s cab.” The driver was an experienced miner who had received all the requisite training. Weather wasn’t a factor.
Why did this experienced haul truck driver lose control of the truck? Was the driver wearing his seat belt before he hit the water? Did he remove his seat belt after hitting the water? Does MSHA have reason to believe that wearing or keeping his seat belt on would have prevented the miner from drowning in the sinking truck?
These are all important and obvious questions. Yet, MSHA’s report doesn’t answer any of them. MSHA’s report doesn’t even say whether the truck was backing up or traveling forward at the time of the accident. MSHA’s “Fatality Overview” of the accident includes a list of “Best Practices.” MSHA didn’t include seat belts on the list, and the presentation doesn’t explain how or why the accident occurred.
In our experience investigating fatal and other serious accidents, these are just two examples out of many. Relying on data in setting policy is appealing. It makes full sense that MSHA would look to what occurred in the recent past to identify issues and hazards that need regulatory attention. The question is whether the data actually represents what it claims. Can MSHA’s accident data can really serve this purpose when it often ignores some of the most pressing questions about what caused an accident?
Stayed tuned. Get involved.
How will this potential rulemaking effort affect you? Do you have experience and lessons learned you can share about mobile equipment or conveyor safety – what works and what does not? What does MSHA need to know about the opportunities and challenges of various technology solutions or other requirements it might issue down the road?
Stay tuned for more updates here, at Safety Law Matters, about this potential rulemaking initiative as it develops. Husch Blackwell’s Mining Coalition, a group of mine operators working together to weigh in on MSHA regulations and initiatives, will certainly be tracking and engaging on this issue. For more information, or to join the Mining Coalition, please contact Avi Meyerstein or Brian Hendrix.