Rock Products

JAN 2019

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www.rockproducts.com ROCK products • January 2019 • 61 LAW Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He can be reached at mark. savit@huschblackwell.com. It's the holiday season and, like everyone else, I am looking back over the last year while at the same time, looking for- ward to the next. A new year is filled with hope and this one is no exception. For me, Jan. 1 is like opening day of any sports season; every team is undefeated and, even if only for a single game, we can imagine that that streak will continue until a championship. The same is true in the safety arena. Every Jan. 1, I, like so many of you, am filled with hope that this will be the year in which every miner goes home to his or her family in good shape. Each day creates fresh, hopeful, expectations … until one doesn't. After 47 years in the industry, the bad news comes less frequently, but it still comes. Of course, each one is painful. We are a close-knit industry and every time we lose a colleague, a little piece of each of us passes too. But this column isn't meant to be about loss. Let's focus on the things that we can do to get a better result in 2019. What We Can Do Everyone agrees that compliance with MSHA regulations is no more than a baseline. That merely means that we must develop our own safety programs that go beyond those stan- dards. That effort needs to explore several different avenues in order to be effective. First, we need to recognize that many of the metal/nonmetal standards were first developed in connection with the old Metal/Nonmetal Safety Act of 1966 and incorporated into the current regulations with just minor wording changes. That means that many of MSHA's regulations are pushing 50 years old. According to the Bureau of Labor Statistics, the median age of our workforce (even considering an aging workforce) is 46. That means that most of our miners were not even born when the regulations were adopted. That doesn't mean that the regulations are meaningless or irrelevant, but it does mean that they are so out-of-date that they completely fail to take advantage of the incredible tech- nological advancements that have taken place during that time. Don't just think of cell phones, think computers. The first home computers didn't even appear until 1975. Miners under 35 have never lived in a world without computers. It is unrealistic to think that, as our workforce turns over, the ability of miners to even understand the rationale behind Back to the Future Let's Focus on the Things That We Can Do to Get a Better Result in 2019. By Mark Savit the regulations or why they don't take advantage of current technology will be a significant factor in our safety training programs. All this means that it is up to us to figure out how to incor- porate the technology from our fingertips into our safety programs. We will inevitably have to think beyond or around the regulations to do that. The bottom line is that, as an industry, we need to have the courage to experiment with new approaches taking advantage of – or coping with – the technology that is being incorporated into our operations at an accelerating rate. In order to accompany the modernization of our own pro- grams, we also need to develop better ways to measure success. As an example, baseball essentially counted runs, hits, errors, RBIs, balls and strikes until the late 1980s when, using computerized analysis, they developed advanced sta- tistics (remember the movie Moneyball?) that proved to be far more predictive of success. We are still essentially count- ing incidents and normalizing them over the number of hours worked. We are awash in data that could be analyzed to look at those which are predictive of safety success, rather than reactive to it. There is no reason why we shouldn't be looking hard at this. What MSHA Can Do MSHA has already initiated an effort to modernize its regu- lations. It has asked for industry suggestions on how to do that. But, as I've pointed out before, this process suffers from two handicaps. First, industry is going to be understand- ably reticent to suggest new regulations that it perceives as being more restrictive on them. But more importantly, the process for changing regulations is resource-intensive and time-consuming.

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