The ELA is proud to welcome our newest member firm: LOGOS  in Iceland!
The ELA is proud to welcome our newest member firm: LOGOS  in Iceland!


Honoring National Miners Day: MSHA Stakeholder Meeting Overview

Submitted by Firm:
Steptoe & Johnson PLLC - West Virginia
Firm Contacts:
Bryan Cokeley, Susan Deniker
Article Type:
Legal Article

The Mine Safety and Health Administration (MSHA) appropriately held its last stakeholder meeting of 2023 on National Miners Day, which recognizes the Monongah Mine disaster that occurred on December 6, 1907, near Fairmont, West Virginia. This disaster, that killed 362 miners, is considered the worst disaster in U.S. mining history and is one of the events that led to the establishment of the U.S. Bureau of Mines.

MSHA and industry folks alike are upset that the industry has 38 fatalities already in 2023, the highest rate in many years. MSHA gets upset because it tries the “everything, everywhere, all at once” approach to address injuries and illnesses, and when this doesn’t work, MSHA goes to the old tools in the box and doubles down (i.e., uses more enforcement through more programs). The industry gets upset because it knows it can do better and does not believe that more enforcement and emphasis programs are the answer.

During the meeting, MSHA did a good job of conveying the agency’s areas of concern, which account for 24 of the 38 fatal injuries and include machinery and powered haulage and the inadequate training given to miners. Regarding machinery and powered haulage, MSHA believes the surface mobile equipment rule that is forthcoming will require operators to enhance this aspect of operators’ safety programs and reduce injuries. MSHA also stressed that inadequate training is continuing to contribute to fatal injuries. However, when MSHA had the chance to clarify this point, it missed the mark. Someone who has been through safety training to not climb on top of trucks without fall protection or to not work on moving belts has been thoroughly trained. The fact that the miner goes against the training and does something that causes an injury is not inadequate training; it is a lack of safety management and bad employee behavior. Let’s call it what it is.

By way of example, a front-line mine supervisor is the most influential person in a miner’s safety life. What that means is that the standards established by the supervisor will dictate the thinking of a miner performing work. If a miner sees a supervisor walk past a trained employee doing a task unsafely and says nothing, then that supervisor has “normalized deviance” away from safe practices. If a trained miner believes that a task is easier to do unsafely (e.g., not putting on fall protection to do a five-minute task) and then gets hurt, then that is simply bad safety behavior.

Operators must address both. You address safety management by giving supervisors RAA — responsibility, authority, and accountability — in their jobs. This means you establish expectations for safety, you lead by example, and you address poor employee safety behavior by correcting the little things employees do so that you create a mindset of what is and is not acceptable. You address the underlying employee thinking with visible, concrete acts of good safety supervision (i.e., leading by example) that starts to permeate the way a miner thinks about work. Also, helping each miner find their “safety soul” is important so that they understand that nothing that happens at a mine today is more important than that miner returning home to their loved ones. Supervisors must do this one miner at a time, and in my experience, this is what separates the great supervisors from all others.

MSHA discussed the proposed respirable crystalline silica rule and the expected final surface mobile equipment rule and informed industry folks that the next regulatory agenda will have more timing information. MSHA also discussed causes of fatal injuries, health and enforcement statistics, and the increase in miners asserting their rights through hazard complaints. For its part, MSHA has a lot on its plate, but what I want to know is, are MSHA’s measures working? At the end of the day, what will help miners work more safely are great supervisors leading by example and the employee finding and understanding their safety soul. Any nonenforcement actions MSHA can take to support mine operators’ efforts would be a step in the right direction.

If you have questions concerning this legal insight, please contact Michael Peelish who, in addition to being an attorney, is a mining engineer who had oversight of safety and health at U.S. and international MSHA and OSHA related facilities for almost two decades. In addition to defending clients against enforcement actions, Peelish conducts safety and health audits and training, risk exposure and compliance assessments, and safety and health program development.