Draft MSHA regs may save $27.6 million

Although many of us think that it didn't go far enough, one of the more important first steps that President Trump took in January was the promulgation of Executive Order (E. O.) 13771 which imposed a ceiling on new regulations. "For every new regulation issued, at least two prior regulations [shall] be identified for elimination … the cost of planned regulations [shall] be prudently managed and controlled through a budgeting process."

For the natural resources industries in Alaska, including mining, this first step toward deregulation was a godsend. As the mandate has filtered down to the regulatory agencies, its benefits are becoming increasingly clear.

There are examples galore of the problems associated with regulatory overreach. An egregious example was the midnight promulgation by the Obama administration of a final Mine Safety and Health Administration rule that requires the examination of the workplace in a hard-rock mine to be conducted before miners begin work in that place so that conditions that may adversely affect miners' safety and health are identified before miners are exposed to those conditions and corrective action is promptly initiated.

On its face this might seem to be a reasonable requirement. No one wants anyone to work in a place that "may adversely affect a miner's safety and health," but the hidden burden was the administrative record-keeping requirement associated with that "examination."

As is often the case, the imposition of record-keeping on a business is very expensive, especially when the only identifiable purpose for imposing such a requirement is to support a subsequent sanction.

In the case of this MSHA regulation, the documentation requirement existed regardless of whether the supposedly adverse effect was resolved well in advance of any miner being exposed to the condition.

Pursuant to E. O. 13771, MSHA now proposes to revise the Obama regulation, reasoning that if adverse conditions are corrected promptly and no longer present a danger to miners, a description of the adverse condition should not be required as part of the examination record. MSHA argues that this change may actually improve safety by encouraging mine operators to correct adverse conditions as they are found and before they potentially cause an accident, injury or a fatality.

MSHA estimates that the change will result in an annual cost savings of $27.6 million, given the number of mines and administrative costs that were involved.

MSHA is famous for its Draconian rules. Anecdotal stories of MSHA inspections are rampant. The one I like best is the story about the small ditch that was on a property that miners were routinely stepping over. A MSHA inspector dinged the operator because the condition was allegedly unsafe, so the operator bridged the ditch with a plank. The next inspector then wrote the operator up because the plank lacked a handrail.

There is no doubt that mine operations can be dangerous, as is the case at any industrial operation or location where heavy equipment is being employed. Nor is there an argument that reasonable health and safety requirements save lives and reduce the risk of injury.

The problem, however, is always the hyperactive bureaucrats who generate hyper-technical regulations to address hyper low-risk issues.

MSHA inspections are supposed to be unannounced, presumably on the theory that no one would comply with reasonable health and safety obligations if they weren't enforced.

This cynical worldview is belied by the extremely low incidence of time-lost injuries at hard-rock mines. Our mines in Alaska rarely have such incidents; and, even then, such injuries are as likely to occur in the offices among clerical employees as they are in the equipment yard, on the drill site or even underground.

The most dangerous place for a miner to find himself is on the highway driving to work. Statistically, it is safer for a person to work at a mine than a Walmart.

No one advocates doing away with MSHA at this point, but it is fair to say that firm pressure from the top to question the efficacy and value regulations that impose unreasonable burdens on our industries is fair game.