Tales from the Front: MSHA I2P2 Hearing
The following is from Adele Abrams, Esq., who is ASSE’s Federal Representative and a mining safety expert –
On October 8, 2010, I represented ASSE and testified at a hearing on MSHA’s forthcoming proposed rule to mandate safety and health management programs (SHMP) for all types of mines. This was the first of three scheduled hearings, and a proposed rule is on the regulatory agenda for April 2011. MSHA is not using the “I2P2” terminology but the rulemaking appears to parallel the I2P2 initiative at OSHA.
There were 9 witnesses, including myself, scheduled and two additional unscheduled witnesses gave short statements at the conclusion of the hearing. MSHA Assistant Secretary Joe Main gave a brief welcoming statement, but Deputy Assistant Secretary Dr. Gregory Wagner presided over the panel, which included Kevin Burns (of the soon-to-be defunct Small Mines office), Harvey Kirk (metal/nonmetal safety), Greg Fetty (coal safety), Alfred Ducharme (solicitor’s office) and Richard Feehan, Harvey Kirk and Mario Distasio (other MSHA personnel).
Main stated that mine operators must implement effective SHMP because they owe miners accountability. He said the causes and means of preventing accidents are well-known and operators should make best practices part of the standard workday. Wagner said the focus is on prevention, in addition to compliance, and operators have an obligation to monitor the work environment with continued attention to recognizing and eliminating threats to safety and health even where a specific standard is not violated. A SHMP must have full participation of all workers and a culture of safety that extends from management to workers. He took note of several consensus standards (ANSI Z10, ISO 9001, and BSI 1801) as models to look at. He said MSHA will collaborate with OSHA on its I2P2 rulemaking and they can learn from each other’s stakeholder meetings.
The first witness was Jeff Kohler of NIOSH, who said that agency’s researchers are looking at “safety culture.” He said regulations cannot anticipate all changing scenarios and a reactive response is not the answer. Regulatory compliance alone does not equate with “zero harm.” The government is not responsible for safety outcomes at mines, and the mine operator is “fully responsible for safety and health at operations.” Prescriptive regulations are a minimum expectation. He said the core components of a SHMP are: (1) hazard identification; (2) risk assessment; (3) risk management; (4) elimination of hazards through design; and (5) mitigation of hazards through engineering, training, and administrative action.
Kohler discussed NIOSH research that includes 10 field-based case studies with a wide cross-section of mines and commodities. He also suggested learning from the success/failure in the international community, particularly Australia. NIOSH supports implementing SHMP across all mine sizes, without exception. He said a cultural shift will be a lagging indicator of success, and training and education will be needed to make the shift. MSHA culture will also have to change.
The next witness was Dennis O’Dell of the United Mine Workers of America (UMWA). O’Dell discussed safety training and activities under the union (joint projects with MSHA, NIOSH and the Bituminous Coal Operators Assn.), as well as providing members with the same training that inspectors get at the Mine Academy. He discussed the need to address hazards and share information before MSHA issues citations, and favored open sessions to “bounce ideas around about safe mine practices.” The goal is elimination of injuries and hazards. He said that collective bargaining agreements are the reason for the success of these programs, noting that of 62 coal fatalities in recent years, only 2 occurred among UMWA members. He said “we shouldn’t be in the business of risk management – we should focus on risk elimination.” He did not address specifically SHMP.
Andy O’Brien of Unimin Corporation spoke as witness for the Industrial Minerals Association-North America/National Industrial Sand Assn. He explained NISA’s occupational health program as “the gold standard” for elimination of silicosis. A new version has just been completed and the elements include: (1) workplace dust surveys; (2) respiratory medical surveillance; (3) a prevention program that includes medical assessment, dust control, and smoking cessation. The program has been implemented by 37% of association members so far, and the main deterrent is fear that sampling creates enforceable data (subjecting companies to MSHA citations for their proactive dust monitoring if overexposures are documented), and costs. He said that lower worker’s compensation rates make the business case for safety . He said the same approach could be used for injury prevention. His company also uses the MSHA “SLAM Risk” program and they have continuous improvement teams to identify risks, and establish interventions including in the area of ergonomics. Manuel Gomez of the Chemical Safety Board questioned why NISA/IMA-NA don’t “kick out” members who do not commit to the OHP, using the American Chemistry Council’s “Responsible Care” program as an example (ACC members must commit to the program). O’Brien responded that the mining industry is not in the same “place” where the chemical industry is currently, but this might be an aspirational goal.
Ed Elliott of Rogers Group testified on behalf of the National Stone, Sand & Gravel Assn. He explained the company’s injury/illness prevention program, which he called the “Rogers Safety System” that has been in place since 2001 and has significantly reduced injury rates. He said 90 percent of injuries are due to unsafe acts, but Rogers does not blame employees since unsafe acts may result from management-created barriers. Rogers supports a “zero injury safety culture” and Elliott said there are “no accidents, because we know what causes injuries and how to prevent them.”
The main principles of the Rogers Safety System are:
• Management commitment
• Line responsibility for safety
• Safety training (task, occupational health etc. and Rogers requires 40 hours of training BEFORE it provides the mandatory 24 hours of MSHA new miner training)
• Audit process to observe behavior; every manager must do one formal audit per month, and they also conduct informal audits
• Safety committees: their corporate committee has 12 members (5 hourly, 7 management) so they get feedback on what works at the field level
• Job Safety Analysis implementation
• Incident investigations, including near-miss; and
• Employee involvement.
Rogers also has accountability for managers and hourly employees on safety performance, a substance abuse policy, emphasis on regulatory compliance, recognition of excellence, and clear metrics using leading indicators, current indicators and training indicators. With respect to the rulemaking, Elliott recommended broad guidelines with flexibility for each operation, a program that is simple and measurable, giving credit to companies that already have systems in place (such as reduced penalties for violations) and said in the future, MSHA should focus inspections on implementation of the system. He also urged MSHA not to “rush the rule” because consensus is needed among all constituents. He suggested additional public meetings at the district level so small operations can learn about this initiative and provide input. He added that MSHA must have a culture that diminishes the current “enforcement first” approach. He also recommended consideration of the “Core Principles of Safety Program” that was developed through the MSHA/NSSGA alliance.
Elliott got quite a few questions on his company’s program, which MSHA deemed “impressive” and he was asked to submit additional information to help make the business economic argument in favor of such programs. He also detailed how they track injuries, severity, and other factors (such as ergonomics, ageing worker issues). When asked if such a program could work at small operations, he said that it could but that the MSHA/NSSGA alliance program is simpler than the RSS and uses broad concepts that work for any mine size.
The next speaker was Frank Migliaccio of the Ironworkers Union. He discussed training that the union provides for its members, but never really addressed SHMP. The focus was more on how the union acclimates workers used to an OSHA environment to working under MSHA. The Ironworkers union also has an alliance with MSHA.
Two executives (Mark Premo and Dave Partridge) from Chevron Mining Inc. presented next on their company’s SHMP, which covers 1,000 employees at 3 mines (coal and hard rock). The Chevron program is the “Operational Excellence Management System” which covers SHE, plus reliability and efficiency. The goal is “0-100-0” (zero injuries/incidents, 100 percent of production goals, and zero citations/spills/violations). The program has 13 elements, 7 of which have a safety/health focus. The main safety element concentrates on: safe work practices, risk management, JSA, hazard communication, motor vehicle safety, occupational hygiene, behavior-based safety, fitness for duty, training and recordkeeping/documentation. Workers conduct self-performed safety assessments and have significant “Stop Work Authority” (used 1700 times in the past year). The company has five levels of regular audits: (1) a two-week long audit every three years, done by Chevron corporate; (2) annual self-assessment; (3) a one-week audit annually by the Chevron mining group; (4) daily workplace examinations; and (5) monthly union/management safety committee inspections. All actions are documented and tracked, with action plans developed as needed. They urged MSHA to defuse the “us versus them” mindset. They reported that their program resulted in a significant reduction in citations since being implemented.
I was the next speaker and relayed a modified (for MSHA references) version of the ASSE “talking points” that had been approved for use by Tom Cecich at the I2P2 OSHA stakeholder meeting in June 2010. I also spoke from and submitted a powerpoint that I did on basic tenets of an I2P2 program, based in large measure on the ANSI Z10 standard and the OSHA 1989 guidelines. I also suggested: grandfathering in effective programs so that they would not be disrupted, providing additional time for small businesses to get on board, providing MSHA-developed templates for programs and non-enforcement-related technical assistance to mine operators, and restraint in enforcement so as to avoid “double dipping” (e.g., citing for a missing guard and then issuing a second citation for an inadequate SHMP because a guard was missing). The only question I got was from Dr. Wagner, who asked how I would benchmark an “effective” existing program and I discussed employee involvement/awareness of the program, auditing programs to measure effectiveness, safety committees etc. I noted that the SHMP should be a living document, modified as needed, and not something that sits on the safety director’s shelf.
The final formal witness was Dr. Larry Grayson of Penn State University. He discussed the historical view of mine safety, the ILO program elements, and the Mining Safety Management Plan in New South Wales, AU (GNM-003, version 4.1). He said programs need commitment from the top and significant documentation. The Australian system places a “duty of care” obligation on all mining companies. He said, in the US, that companies with systems dramatically reduce their lost-time accident rate, fatalities and disabilities, but most of these are large corporate entities.
Grayson said that MSHA must overcome the following problems: (1) small mine issues (85-95 percent of mines are in this category); (2) operator battles with MSHA to comply (the mindset that MSHA is punishing them precludes cooperation and good relations with the agency); (3) the workforce is busy abating citations, which prevents proactive compliance efforts. He recommended: (1) less formal “paperwork-based” systems, (2) a focus in building a safety culture of prevention; (3) sound risk-based analysis; (4) addressing identified significant hazards; (5) recognition that regulatory compliance is not itself sufficient; and (6) a corporate-wide safety culture of prevention.
The final two unscheduled witnesses were a woman from the Government Accountability Project (who urged MSHA to support passage of HR 5663’s whistleblower protections – not germane to the hearing, obviously); and Jim Sharpe, editor of Sharpe’s Point (who expressed serious reservations about the rulemaking and said MSHA must change before putting out the rule, that this is a big job that will take years). Sharpe said it will be difficult to impose a proactive approach on a “beaten-up industry” that has been subject to a reactive system since 1969. He concluded that “safety has been politicized” and speculated that because the House may go republican and the House controls the budget, a republican House may be vindictive toward MSHA. He predicted a less than 50-50 change that the rule would go through and, it if does, it is likely to be a paper exercise.