In December, the Mine Safety & Health Administration (MSHA) published its final rule on safety programs for surface mobile equipment.
MSHA included a deferred compliance date, giving operators six months to comply with the new standard before the agency and its inspectors begin enforcement during inspections. That compliance date is July 17, 2024, which means MSHA inspectors cannot enforce the rule as a whole – or any of its provisions – before that date.
Surface and underground mines
One change to the rule is that MSHA expanded the rule’s application.
MSHA originally proposed that the rule would not apply to mines with five or fewer miners. That is no longer the case, and any mine that operates equipment covered by the definition of “surface mobile equipment” as defined by MSHA must comply. This change will bring many more small operators, contractors and portable plant operators into the rule’s coverage.
Surface mobile equipment is defined by MSHA as “wheeled, skid-mounted, track-mounted or rail-mounted equipment capable of moving or being moved, and any powered equipment that transports people, equipment or materials, excluding belt conveyors, at surface metal and nonmetal mines.”
MSHA specifically states that the rule applies to independent contractors working at surface mines or surface areas of underground mines. Contractors will not be able to work under a production operator’s program, and production operators should ensure that contractors coming on-site are aware of the new rule and have compliant programs in place by the July 17 deadline.
Program evaluations, updates
Each company will have to designate at least one “responsible person,” defined as “a person with the authority and responsibility to evaluate and update a written safety program for surface mobile equipment.”
The program will have to be evaluated and updated at least annually, and “as mining conditions or practices change, as accidents or injuries occur, or as surface mobile equipment changes or modifications are made” that adversely affect safety and health.
Further, MSHA maintains that the programs need to be evaluated and updated when accidents or injuries occur. This is not specifically limited to accidents or injuries involving the use or operation of surface mobile equipment.
While reasonable minds would hope that the changes and accidents or injuries would be related to mobile equipment to necessitate an update to the surface mobile equipment program, MSHA does not say as much.
Operators and contractors should seek clarification on this during the compliance assistance process and monitor MSHA’s enforcement closely, to gauge what MSHA considers a triggering event of evaluation and update.
Maintenance prodecures
MSHA clarified that operators have the option of transferring existing maintenance procedures and schedules into the program, rather than developing this section from scratch.
The final rule still requires operators and contractors to “identify and evaluate currently available and newly emerging feasible technologies that can enhance safety at the mine.” This open-ended provision is likely to impose a considerable burden on companies as the years pass.
Now, operations will need to evaluate what technologies are available each year and determine the feasibility of installing these on surface mobile equipment. If an operator or contractor determines a technology is not feasible, they should be prepared to defend that position if MSHA comes to a different conclusion.
Putting the plan together
Operators and contractors will need to solicit input from their miners during initial program development, as well as when updating the written safety program.
MSHA also clarifies that the programs do not need to be submitted for review and approval by the agency. These programs will become one of the regular records reviewed when MSHA is on-site for its mandatory safety and health inspections.
MSHA has said that it will develop compliance assistance materials, including a template plan, for operators before the compliance deadline, but it has not said when those materials will be released.
Companies should not wait to begin drafting a program.
Mobile equipment safety has long been a focal point of MSHA’s, and this new rule will give the agency another opportunity to hold operators and contractors accountable.
Related: Do you have the right training records for MSHA?
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
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