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APR 2019

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www.rockproducts.com ROCK products • April 2019 • 49 LAW Avi Meyerstein is part of law firm Husch Blackwell's Technology, Manufacturing & Transportation team, and focuses his prac- tice on workplace safety and health matters, litigation and appellate law. He can be reached at avi.meyerstein@huschblackwell. com or 202-378-2384. By one critical measure, mine safety just had its second-best year in history: 2018 was the second-lowest year for fatal mining accidents. In fact, compared with other industries, mining is now quite safe. Can this offer a lesson for how to target MSHA enforcement differently in the future? An Industry Approaching Zero That Is Now Safer Than Many Others In 2018, a total of 27 people were killed in mine accidents in the United States. According to MSHA accident reports, 12 of the deaths occurred in coal mines (which account for 44 percent of the industry's deaths but only 24 percent of the nation's miners and 9 percent of the nation's mines). Fifteen of the accidents occurred in metal/non-metal mines. While every fatal accident is an immeasurable tragedy, these numbers continue a remarkable decades-long trend in improv- ing mine safety. According to MSHA, the worst year on record was 1907, when an estimated 3,242 miners died. For decades, mining averaged 1,500 or more deaths per year. That fell to under 100 per year in the 1990s and below 30 for the first time in 2015. The lowest remains 25 fatalities in 2016. Significantly, mining isn't just safer than it used to be; it's now also far safer than many other industries. In 2016, mining's 25 fatal incidents were dwarfed by those in construction con- tracting (631 fatalities), administrative and building support services (372), food services and restaurants (165), and even the performing arts and sports (53). Mining accounted for just 0.5 percent of all U.S. workplace fatalities. With a record- able injury rate of 2.4, mines were much safer than grocery stores (4.6) or nursing homes (10.9). A Growing Gap Between Hazards And Enforcement Resources Because mining was much more dangerous when Congress created federal safety agencies decades ago, mining has its own safety enforcement agency all to itself. But, with mining's dramatic improvement over the last 40 years, the balance has shifted. Today, federal taxpayers spend signifi- cantly more on safety per employee in mining than they do in the rest of private industry, where there are far more dan- gerous workplaces. For instance, in FY 2019, OSHA has a budget of $557 mil- lion to cover 8 million worksites and 130 million employees. That's roughly $69 per worksite and $4 per employee. With about 2,100 OSHA inspectors, there is one inspector for every 3,800 worksites. An Industry Approaching Zero Most Safety Enforcement Goes To Areas Of Least Risk. Is There A Better Way? By Avi Meyerstein By contrast, MSHA has $373 million to cover 13,200 mines and 333,000 mining industry employees. Its enforcement divisions report 1,493 personnel. That means roughly $25,530 spent per site (versus OSHA's $69), over $1,000 per miner (versus OSHA's $4), and just 9 worksites per inspec- tor (versus OSHA's 3,800). It's no surprise that MSHA issued more citations in 2017 (101,018) than OSHA did (92,730) though MSHA has so many fewer sites. It's even more interesting to compare enforcement resources with hazards. When you add it all up, mining accounts for 0.5 percent of workplace fatalities, but it receives 40 percent of federal safety enforcement resources. Put differently, OSHA is responsible for the places where 99.5 percent of fatal work- place deaths occur but has only 60 percent of federal safety and health enforcement dollars. How Can We Best Channel Safety And Health Resources To Areas Of Greatest Hazard? When it comes to the MSHA/OSHA divide, this imbalance is mostly academic. No one in industry or government is talking about re-aligning MSHA and OSHA resources. But, it illus- trates an interesting problem – and opportunity – that also exists within mining. Aside from responding to complaints and accidents, MSHA's inspection resources are spread across the industry regard- less of the true hazards at each site. MSHA believes that it must try to lay eyes on every area of every mine – regardless of whether the mine is a ticking time bomb or, alternatively, has a robust safety and health program, experienced team, excellent training, and below-average injury rates. Is there a better way? OSHA may offer helpful experience. By necessity, it has developed several methods for prioritizing its attention so it spends more time at sites with greater risk. For example, its regional and national emphasis programs target more inspection activity in industries and workplaces with heightened hazards. Likewise, for 30 years, OSHA has run the Voluntary Protection Program. To participate, companies must meet and maintain

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