As an attorney and certified mine safety professional (CMSP), Adele Abrams works with both regulatory agencies and miners. In this interview, Abrams explains how to manage unique populations within the mining industry and discusses new federal initiatives to improve mine safety.
Please provide a brief description of your professional background and of your work with your law office in Beltsville, MD.
I began working in safety (construction-oriented) in 1986 with the American Road and Transportation Builders Association, where I responded to U.S. Occupational Safety and Health Administration (OSHA) rulemakings and also worked on projects such as WorkZone Safety.
From 1989-1996, I was Director of Government Affairs for the National Stone Association, serving as the organization’s primary liaison with OSHA and the U.S. Mine Safety and Health Administration (MSHA). I also organized multiple safety conferences, produced and wrote scripts for safety training videos. During this time, I also attended law school (George Washington University) at night.
In 1996, I joined the environment, safety and health practice group of the Washington, DC law firm, Patton Boggs. In 2001, I started my own firm because I wanted to have a more diverse practice that included safety training and consulting as well as litigation of OSHA/MSHA citations.
In addition to representing companies in litigation with regulatory agencies, I conduct MSHA and OSHA training, safety audits at mine sites and consulting on program development related to OSHA and MSHA. I also teach employment and labor law at Catholic University of America, which includes coverage of OSHA legal issues.
You have presented on managing safety for unique populations. How are unique populations defined, and what issues must be addressed with respect to these populations?
The employer owes the same duty to all workers—to provide a safe and healthful work environment—and it is the safety professional’s role to help effectuate this. If a “one-size-fits-all” approach is used, many workers’ special needs will be overlooked. A demographic profile of the workforce can help tailor programs to meet these needs as well as ensure that PPE is designed to fit each worker. I have worked on fatality cases in which the company never bought XXXL lifejackets so the heaviest workers did not use them when they were on workboats. This was discovered after a worker died in a dredging accident.
Similarly, safety harnesses may not be small enough to fit small-framed men or women in the workforce. In another case, a ladder collapsed because its rated capacity was less than the heaviest worker who used it. That worker also died.
You are a CMSP, and you also provide mine safety training, consultation and litigation services. What unique populations are present in the mining industry? How are training and compliance managed among these populations?
Mining is the heaviest regulated industry, perhaps second only to nuclear power. Congress found that mining is inherently dangerous, so each surface mine is inspected twice a year. Underground mines are inspected quarterly at a minimum. This means that mine safety professionals’ work is under the enforcement microscope much more frequently than other worksites, and the Mine Act also imposes “strict liability” on mine operators, which eliminates the ability to offer affirmative defenses to citations. Thus, even mines that have gone ten or more years without a lost-time accident are likely to have a fair number of citations issued, even though they may be for minor things or for recordkeeping-type violations. This is a challenge for mine management, as it is a dynamic work environment that requires (by law) complete inspections of all active areas once during each shift.
Mandatory training requirements are also extensive (24/40 hours for new miners, eight hours for annual refresher training) and must be fully documented. In some cases, the trainer must be MSHA-certified, which limits the ability to have many trainers available from within the workforce. Unique populations here are similar to those described, although women have just begun to have significant representation. In some areas of the country, a majority of miners may speak Spanish and have minimal English skills. The mining workforce also skews older, so many of the most experienced miners will retire in the next two to five years.
There will be a real loss of institutional knowledge at many mines as well as a loss of miners who can mentor young miners coming into the workforce. The same approaches described are needed here—proper PPE, programs that address unique needs and training that is designed to be effective for all different sectors of the workforce. The National Institute for Occupational Safety and Health (NIOSH) has conducted some great research on training needs in mining and is a valuable resource for developing mining-oriented training materials for the different groups.
How have the training and services you provide your clients changed in light of recent years' U.S. mine accidents?
Unfortunately, the recent high-profile mine accidents of Sago and Crandall Canyon have shifted MSHA’s emphasis from partnership with mine operators and compliance assistance to a pure enforcement posture. As a result, I have much greater demand for training on “how to manage inspections” and legal liability reduction. I conduct new miner and annual refresher training, but I am also asked to address things from a defensive approach rather than emphasizing proactive, programmatic safety improvements.
However, on the plus side, I am asked to conduct more safety audits these days because we can legally privilege our work product (as both an attorney and CMSP), and some mines want a “second pair of eyes” to see their facility and to identify/correct problems before MSHA finds them.
You are Co-Chair of NIOSH’s NORA Mining Sector Council. What are the council’s plans and goals for the next year?
The mining sector comprises over 300,000 workers in multiple areas (coal, metal, non-metal, surface and underground). The NORA Mining Sector Council has identified key risks including falling materials, explosions, fires, powered haulage, overexertion, electrical equipment and exposure to particulates and dusts such as diesel emissions, coal dust and silica dust. Ongoing research is taking place in many of these areas, and the Council is also focusing on surveillance as well as outreach to small mines (those with 20 or fewer workers) since they often lack in-house safety departments and are most in need of assistance.
The Mining Sector Council also participates in the NORA Cross-Sector Research Council and constantly looks at what is going on in other areas that could apply to mining (e.g., construction work that relates to the same types of equipment, noise reduction, ergonomic hazards, etc.).
What new challenges do U.S. mine safety professionals face as they are called upon to assist with or to provide consultation for mine accident investigations in other countries?
I have only visited two mines overseas, and I was impressed (not favorably) by one I visited in South Africa, where it was about 120°F for underground workers, and the diesel particulate was so thick you could chew it!
The biggest challenge is imparting a proactive attitude in work environments where there is minimal governmental oversight and where workers may not be given the same level of value and respect as in the U.S. China is known for its horrendous mine conditions, and I understand that fatalities are not even recorded unless six or more miners die in a incident. Wages are low, and it is an entirely different culture in many nations (some ban women from working in mines to this day). However, to the extent that we can “export” training materials and technological advances, we should strive to do that.
Many of the U.S. mining companies also operate in these “frontier economies,” and they often have consistent levels of safety program implementation regardless of where the mine is located. Hopefully, that will help raise the bar for other mines in those nations.
Based on your legal work and experience, what current U.S. mine safety issue do you believe requires the most urgent attention?
That is a tough question because each mine is somewhat unique. Certainly, permissible exposure limits are woefully outdated, but as a practical matter, most mines adhere to current standards and offer levels of protection above the mandatory minimum, so the urgency is not as great to update the regulations.
Crandall Canyon drew attention to the practice of retreat mining where miners go in to collect the remaining minerals and remove vital roof support as they do so. This clearly must be revisited as a general practice.
Mine tracking/communication also needs improvement. If we can readily locate men on the moon and at the bottom of the sea, why can we not locate miners who are trapped in a mine below the surface in a clearly mapped area? It is tragic that the six miners in Utah could never be located and recovered. This is one area where other countries may be ahead of the U.S. U.S. Department of Defense and National Aeronautics and Space Administration applications could have utility in the mining industry in this regard.
You work closely with MSHA. How is MSHA addressing the needs of unique populations in the mining industry?
MSHA’s Educational Field Services unit and its training academy in Beckley work on outreach and development of training materials. Many of the older videos are being translated into Spanish and are available for free or cheap through the government. Unfortunately, with the emphasis on enforcement, training and compliance assistance budgets are not getting the same juice as they did before. In addition, funding for state grant programs, which help state mining agencies fund training and other initiatives to supplement MSHA staff efforts, has been flat. This means program cuts.
How frequently do new unique populations emerge, and how can SH&E professionals best keep pace with them?
As older miners retire, which will create a 50% turnover in the mining population during the next five years, the “face of mining” will look different. These are well-paying jobs, and more women and immigrant workers will fill the work boots of those who retire. Many miners will be relatively young and inexperienced (by law, you must be at least 18 to work in a mine).
Identifying programs that work in other heavy industrial or construction operations and modifying them to suit mining may eliminate “reinventing the wheel.” Becoming familiar with available government resources is also critical.
I welcome feedback on behalf of the NIOSH NORA project so that we can tailor our work program most effectively. Finally, networking among safety professionals remains a great way to learn solutions to problems that you might not even realize you have.
Adele L. Abrams, Esq., CMSP, is an attorney and Certified Mine Safety Professional who provides mine safety training, consultation and litigation services. She is also Editor of the Mining Practice Specialty’s technical publication, Inside Global Mining.
Abrams may be reached at (301) 595-3520 or email@example.com.