by avi meyerstein

The current system of mine safety and health regulation is at a crossroads. More than 40 years after the passage of the Mine Act, the mining industry has changed significantly, but the government regulatory system has not. 

This is particularly true with enforcement, which is largely as it always has been, with two fundamental presumptions at its core. First, it presumes that workplaces are filled with widespread hazards and violations. Second, it presumes that only the extensive presence of federal mine inspectors can possibly keep mines from hurting their workers.

At one time, these were fair presumptions. In 1919, a staggering 2,904 people died in mining. In 1977, when the Mine Act passed, it was 273. But, today, the landscape is radically different. These tragic numbers are down by more than 99% in the last 100 years. Last year, 27 people died in the mining industry.

The fact that these numbers are historically low, of course, should not in any way diminish the significance of the lives lost. Every death is the end of an entire world. No one should have to work in a hazardous environment. Everyone must always strive toward zero. Yet, safety demands that we look at where we are today compared with where we once were and ask: What has changed about our problems? What should change about our solutions? 

One change is safety resources. Of course, the Mine Safety and Health Administration (MSHA) is a part of that. Also, when the Mine Act passed, there was already under way a massive investment by the industry to professionalize and institutionalize safety and health programs and training. Today, companies often have extensive safety staff and programs that exceed government requirements.

Another change is the outcomes. Mining’s 27 fatal accidents and 2.4 recordable injury rate last year are far below many other industries. In 1977, Congress singled out mining to have its own enforcement agency. If we looked for an industry to single out today, it’s doubtful mining would even make the short list.

Of the accidents that still occur, many result from human factors. Even the most well-meaning, hard-working, and best-trained people are vulnerable to falling asleep, taking a shortcut, suffering a medical event or making a mistake.

If the problems have changed during the last 40 years, what about the solutions? What about the enforcement model and its underlying assumptions?   

Moreover, how can MSHA contribute to the best safety outcomes with the fewest resources? How can it best support safe operations in maintaining and even enhancing safety while also focusing its most significant enforcement attention on those who clearly lack the capacity, knowledge, or will to invest in safety and health as they should? 

One new initiative could address all of these questions — a Voluntary Protection Program (VPP). MSHA would set a high bar for companies to participate in the program. To get in and stay in, a company must show it has the right systems and programs in place and that it gets results, with injury rates better than industry averages. Those that qualify would still have several regular inspections each year, but the focus would change.

First, the inspector could spend time off-site reviewing programs, policies, training, recent incidents and other safety key performance indicators. Then, the inspector could spend one to two days on-site, speaking with workers and walking through key areas to confirm what the numbers should already show — that the site has safety in order. Of course, any violations observed would be cited, but the nature and magnitude of the inspection would be different. From the combination of off-site and on-site auditing, MSHA would be able to confirm that a wall-to-wall, multiweek inspection is not necessary at this site. 

What does MSHA get out of VPP? It gets to multiply its resources and direct them to the operators that still struggle with safety and compliance for one reason or another. Those operators need MSHA’s expertise and/or enforcement attention. What do VPP operators get? They get back more of their own resources, too. Rather than accompanying MSHA inspectors for weeks or months a year, they can reinvest this safety dividend in safety and health — by growing innovative programs and deepening a culture of safety.

What does safety get out of this? Results. When operators who know what they’re doing can do more of it, and MSHA can spend more time and energy on those who are failing, the entire industry takes a step forward.

Where the safety upside could be significant, as with VPP, and the downside is limited by high standards and close oversight, why can’t MSHA rebalance for safety’s sake? It’s worth a close look. The problems in mine safety have changed. The solutions should, too.

Avi Meyerstein is a partner at Husch Blackwell. He can be reached at avi.meyerstein@huschblackwell.com.