AMERICAN SOCIETY
OF SAFETY ENGINEERS

1800 East Oakton Street
Des Plaines, Illinois 60018-2187
847.699.2929
FAX 847.296.3769
www.asse.org

March 17, 2006

The Honorable Michael B. Enzi
Chairman

The Honorable Edward M. Kennedy
Ranking Minority Member

Committee on Health, Education, Labor and Pensions
United States Senate
SD-428 Dirksen Senate Office Building
Washington, DC 20510-6300

Dear Chairman Enzi and Senator Kennedy:

On behalf of Michael Neason, who testified for the American Society of Safety Engineers (ASSE) at the Committee on Health, Education, Labor and Pension’s March 2, 2006 hearing on the State of Mine Safety and Health, please find below his direct answers to the questions provide by you. Your interest in Mr. Neason’s views is greatly appreciated by ASSE as well as Mr. Neason, as is the overall leadership your Committee is providing in finding better directions to making this nation’s mines safer workplaces.

If Mr. Neason or ASSE can provide any additional assistance or further clarification, we hope that you will not hesitate to ask. Below, please find Mr. Neason’s responses to your questions.

Questions from Chairman Enzi:

  • 1. As I am sure you are aware, much of overall regulation of workplace safety focuses on the elimination of potentially dangerous conditions. Some have criticized this approach because if does not adequately address the issue of human error or behavior that is often an element in workplace accidents. Do you have any suggestions as to how we might address this issue more directly, or completely?

Mr Neason's response: Our internal trend analysis studies would certainly support your concern that behavior issues are often behind many of the injuries in mines. Nearly 80% of our injuries happen during unscheduled (or “breakdown”) maintenance, and practically all of those injuries are the result of an employee taking an unnecessary risk.

It has taken a great deal of work over the years to advance our program to the point where physical hazards are routinely identified and corrected before they can cause an accident. As a result of these efforts, our facilities are more efficient, more profitable and we are better able to retain good employees.

In other words, our health and safety program has advanced considerably since 1977. MSHA’s has no kept pace with this advancement. While the MSHA inspectors I have walked with seem to understand this reality, their responsibilities under the Mine Act limit their ability to focus adequately on the areas that truly need attention. As such, MSHA’s compliance activity routinely fails to consider either accident trends or risk assessments. For the most part, the citations that are issued do not correlate with fundamental controls commonly acknowledged as the primary causes of most injuries.

To address the issue, MSHA should de-emphasize the “gotcha” enforcement of broad standards in favor of emphasizing positive initiatives such as their “Small Mines Office,” “Educational Field Services” and “S.L.A.M” program. With the current focus, operators are encouraged to dedicate resources to satisfying regulators as opposed to protecting their employees.

  • 2. How often does MSHA come to the mines you supervise? What is your evaluation of the efficacy of MSHA’s inspection policy?

In 2005, MSHA inspected the 21 mines I supervise 45 times. We were issued a total of 38 citations with all but 5 being marked as “not significant or substantial”. Each inspection took 2 to 3 days to complete. Essentially, MSHA dedicated over 100 inspection days to a solidly performing operator who maintains an incident rate less than half of the national average.

The difficulty with MSHA’s inspection program is that it denies them the flexibility to allocate resources where they are truly needed. There should be some means for an operator to earn a “good performer” status that would allow MSHA to inspect the facility less often or possibly to conduct an abbreviated inspection. This would improve miner safety in two ways. First, MSHA would free up resources enabling them to focus on operators who could benefit from greater oversight. Second, it would provide an incentive for well-meaning operators to tighten safety standards in an effort to earn their “good performer” status.

There is something fundamentally wrong when a safely run quarry is constantly scrutinized by one federal agency (MSHA) while a shoddily maintained asphalt plant on the same property has never even seen an OSHA inspector. While the Mine Act demonstrates that the government values a quarryman’s life above that of a construction worker, it is a tremendous disincentive to the conscientious quarry manager to bear the brunt of multiple annual inspections that do not correspond to saving lives or preventing injuries.

One thing we all seem to agree on is that miners in this country need to have better communications technology available to them. At the Subcommittee Roundtable that Senator Isakson and Murray hosted last week, it was apparent that while there is some technology commercially available that may allow miners in some mines to receive text messages, however, for the most part the communications technology we all dream of is not yet on the market for mining applications. Do you have any thoughts on what we can do to parlay the expertise and resources of NIOSH and MSHA and private industry to create and manufacture this technology?

I would like to believe that this issue is somewhat more complicated than a simple matter of “supply and demand,” but it most likely is not. With all of the pressure to have instant and effective communications equipment for all miners in all mines, we have to prudently determine the most appropriate way to create the demand for technology that will actually improve safety in each application.

In this era when communications products are actively being developed, it makes the most sense to provide a positive incentive for mines to experiment with technology, or perhaps a highly managed set of pilot projects through a cooperative effort between NIOSH and MSHA. I am afraid that the effect of a regulatory standard mandating the use of advanced communication equipment would be to encourage operators to adopt the cheapest system that would meet the minimum requirements. This would stifle the development process and leave the miners to rely on sub-standard equipment. Better to first encourage experimentation. Then, once this practical experimentation yields a pool of options that have proven successful in a variety of applications, we could consider mandating systems with specific elements of functionality.

Questions from Senator Kennedy:

  • 1. Since your testimony acknowledges that some mines have inadequate breathing protections and obsolete communications systems, while other mines go beyond what is required, shouldn’t we require all mines to aim high and meet a high standard for safety?

As a safety professional, I wholeheartedly agree that all employers should be required to meet a high standard for safety. The trouble with this particular problem is that there is that no existing technology that can fundamentally perform to the degree necessary to satisfy any meaningful standard that would be written.

As I indicated above, I fear that a regulatory standard at this point might actually be counter-productive. If we require operators to implement underdeveloped communications technology, they will be inclined to select the most cost effective option that meets the broadest interpretation of the standard. At that point, the demand for the technology drops off and development will stall. It might be more prudent to begin with positive incentives for operators to implement advanced communications systems. This will have the effect of driving the demand for such systems, which will, in turn, encourage both competition and technological advancement. Once proven systems are identified, a more effective standard can be written that will provide a higher level of protection to miners.

    2. With regard to your suggestion that onsite rescue team and 15-minute accident notification requirements may be unachievable for small mines, wouldn’t you agree that the life of a miner is equally valuable, whether he works in a small mine or a large mine? Do you have suggestions about how we can help small mines comply with strong safety protections without exposing their miners to greater risk?

As many of the mining operations I oversee employ less than 12 people, I appreciate your sentiment that miners deserve the same level of protection whatever the size of their mine.

The 15-minute notification requirement, however, is unworkable no matter the size of the operation. MSHA is not a first responder and the first critical moments after an accident should not become even more complicated than it already is with a reporting requirement that detracts from immediate response and care or miners.

In regard to onsite mine rescue teams, it is important to recognize the key element that makes these teams so special. That is the fact that every team member is a dedicated volunteer who willingly risks his personal safety to rescue another miner in a very hazardous environment. Small operations may not have six able-bodied employees who are willing to accept such a risk, much less endure the harsh physical requirements of the job.

As such, the current consortium option actually offers the best possible response in the event of an emergency. To improve the response, however, I would suggest a provision that mandates any group exercising this option to hold practical rescue training exercises in each mine they will cover. Further, I support the idea of reducing the current requirement of locating teams within 2 hours ground travel to require teams to locate within 1 hour of the mine to which they are responding.

    3. In countries such as Australia, mine operators are required to perform a detailed and rigorous risk analysis before they begin operations. Is this kind of risk analysis done in any of the mines you are familiar with? Should this kind of comprehensive and continuing risk analysis be required in American mines?

I am admittedly not familiar with the Australian requirement referred to in the question. In the US, however, MSHA enforces several different standards that require the examination of working places, ground conditions, tools and mobile equipment each shift and again as conditions warrant.

Risk assessments themselves are very detailed and structured exercises that give tremendous insight on the best allocation of resources to provide the highest level of protection for an organization’s employees, the public and the environment. Progressive companies employ this technique at measured intervals to ensure that their controls are still appropriate.

My company, Hanson Aggregates, employs a formalized risk assessment program for our mining operations.

The Job Safety Analysis (JSA) may be a more appropriate tool to use in addition to the examinations already required. This is a technique for identifying each step of a job and addressing the potential hazard of each step. MSHA is currently promoting a form of this in their “S.L.A.M.” campaign, which encourages miners to Stop, Look, Analyze & Manage hazards.

  • 4. With regard to your concern that different mines and industries face different health and safety risks, wouldn’t you agree that in an accident in any underground mine, in order to ensure the safety of the miners, miners must be able to communicate with rescuers, be located, have sufficient oxygen, and have access to either an area of refuge or an escape route?

More importantly, it is critical to first have a warning system to alert miners that they should evacuate the mine or implement the proper emergency response plan. Beyond that step, all mines will have very different needs that will be primarily dictated by their ventilation and egress.

While it is true that the safety assurances presented in the question are important in some entrapment scenarios, the degree to which they would be needed and the means by which they should be provided are still very different. Miners in a 36- inch coal seam will have an immediate need for breathable air that miners in a 36 foot high stone mine will most likely not have. Those who work in single leveled horizontal mines will not have the complex escape issues that miner in a vertical shafted multiple level facility will. Mandating controls that do not fit individual applications will have a negative impact on safety.

Again, thank you for including Mr. Neason in the March 2 hearing. If there is anything ASSE can do to support the Committee’s efforts, we trust your staff will not hestitate to ask.

Sincerely,

David L. Heidorn, JD
Manager of Government Affairs and Policy

 

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