By Randy Logsdon
Section 2 of the Federal Mine Safety and Health Act of 1977 (Act) contains seven paragraphs in the form of a declaration by Congress outlining the purpose of the Act. The first four paragraphs describe the national concern over working conditions and practices in the mining industry as they affect safety. The fifth paragraph clearly places responsibility for mine safety: “the operators of such mines with the assistance of the miners have the primary responsibility to prevent the existence of such conditions and practices in such mines.” The sixth paragraph justifies the action under the commerce clause of the Constitution. The final paragraph of Section 2 assigns responsibility to the federal agencies to develop standards, enforce those standards, to assist states’ efforts, engage in research and development and provide training programs; all directed at improving mine safety in the United States.
It’s clearly printed on the first two pages of the Act. The words are to create a foundation for what is to follow. But, in my mind, this foundation is a bit wobbly. I’ve always keyed in on that fifth paragraph that places responsibility for mine safety squarely on the shoulders of the operators (with the assistance of the miners). But why would Congress, two paragraphs later, shift responsibility to federal agencies?
The 33-year-old language in the fifth paragraph can actually be considered insightful: “the operators of such mines with the assistance of the miners have the primary responsibility. . .” Who is better situated to manage such a responsibility? Certainly not the government. The operators have both a moral and financial interest in improving safety. The miners have an even more personal interest. They’re both close to the action. The operators control the operation including procurement of equipment, hiring, training, developing operations systems, etc. The miners perform the work using the tools and systems provided. Both groups functioning cohesively improve the prospects of success.
The second part of the paragraph is probably even more insightful: “…to prevent the existence of such conditions and practices in such mines.” One might have expected in 1977 to see the term “conditions” referenced here. The addition of “practices” was an important step in that there was recognition that conditions are not the only source of injury or illness. I would like to think that Congress added practices not as an afterthought, but in conscious recognition of the fact that miners can be killed or injured as the result of practices (or actions) under otherwise safe conditions.
In other words, paragraph five established a leadership role of the operators (and miners) in affecting safety in the mining industry. Here’s where the foundation shifts. The seventh paragraph and most of the remainder of the Act concentrate on MSHA’s role in leading workplace safety and health in mining. As MSHA assumed that leadership role, many operators assumed a compliance role. And as the agency proceeds to churn out rules, perform inspections and cite violations of the rules that MSHA characterizes as minimum requirements, some operators, still following MSHA’s lead, remain satisfied with compliance to a national (one size fits all) standard. One still hears comments like “What does MSHA require?” “What do we have to do to comply?” or “Just tell me what I have to do.”
In a bold and successful experiment, MSHA instituted Part 46 with built-in flexibility that permitted operators to tailor a training program to the real needs of each individual operation. Still, some operators experienced difficulty assuming the leadership role: “Tell me what training I have to provide and I’ll do it.” Others discovered a unique opportunity to provide really meaningful training and took off.
We are seeing more and more operators and miners in the industry who are taking paragraph five to heart. Effective risk-based safety programs and processes that MSHA officials could previously only dream of are being implemented in mines across the country. Many are tailored to the culture found in the local area or region, or to issues that are characteristic of the production process. They’re even being developed around existing regulation. Would it not make sense at this time for Congress and MSHA to relieve some of the compliance burden to operations that excel in their own safety and health efforts? What if MSHA could function in a supporting role rather than in a leadership role for those organizations?
In 21st century language, that fifth paragraph might read something like this: “the operators must exercise their leadership role in assessing risks to the health and safety of miners and in mitigating those risks in such mines. Likewise, the miners must actively participate in the process of identifying and mitigating the risk of injury and illness in the workplace. The Secretary of Labor will encourage and support such operator/miner initiatives.”