New machine guarding policy

Pit & Quarry, Nov, 2004 by Michael T. Heenan

The Mine Safety and Health Administration (MSHA) has come out with revised guidelines on how mining operations may safely and lawfully guard machinery and equipment. In MSHA's "Guide to Equipment Guarding," revised 2004, MSHA has done several things that are hoped will provide more flexibility to mine operators.

Possibly the most significant thing about this guide is that it recognizes for the first time the lawfulness of what has been called "area guarding." If properly constructed, implemented and maintained, guards that cover multiple pinch points will be accepted by MSHA as lawful compliance. The guide provides details on what would be necessary to protect multiple pinch points with a single guard.

Policy vs. law and regulation

It must be remembered that policy is just that. It is not law. Unlike a regulation, which is law because it is developed according to procedures prescribed by Congress, policy may be adopted by an agency without the safeguards of mandatory procedures for rulemaking.

For MSHA to make rules that have the force of law, it must follow all the procedures prescribed by Congress in the Mine Act. These procedures allow the public and all regulated parties ("stakeholders") to: 1) have an opportunity to be informed in advance, by public notice (in the Federal Register), of what rules and standards are being proposed; 2) have an opportunity to comment on those rules and have their comments considered; and 3) have an opportunity to immediately challenge final rules in court after they are finalized by the agency.

In making policy, on the other hand, there is rarely even a semblance of such safeguards. Usually, MSHA simply announces how it thinks a regulation should be followed. However, in the case of the new guarding policy, MSHA worked closely with the National Stone, Sand and Gravel Association to respond to the many issues the association had brought to its attention.

In rulemaking, the agency tries to achieve a rule that is clear and says exactly what the agency believes should be required. Many rules turn out to be less than completely clear and that is when the agency tries to explain what it thinks is required under the rule. That is where policy comes in. It explains what the agency says the regulation means and how the agency thinks the requirements can and should be met.

Policy on guarding

The guarding regulation has caused much consternation in industry over the years. At metal/nonmetal mines, it has been by far the most frequently cited standard year in and year out for more than two decades. During the same period, multiple versions of MSHA's Guide to Equipment Guarding have been issued. None of the prior versions appear to have worked to help reduce the number of citations.

Obviously, no mine operator wants machinery to be in a condition where it could catch and injure someone. Operators are clearly motivated to comply. Probably there are two principal reasons why citations of this standard continue to be so prevalent. For one, it is not difficult for an MSHA inspector to detect that a guard is missing or if it is ineffective because it has deteriorated or has been left off after maintenance. What is easy for an inspector to see is easy for an inspector to cite--and also to characterize as resulting from "high negligence."

The other reason the machine guarding regulation is cited so frequently is that MSHA's many revisions in policy over the years have typically "raised the bar" at each juncture. Moreover, MSHA inspectors have become increasingly demanding with respect to what constitutes effective guarding.

Inspectors do not just look for whether something is adequately covered by a guard, they look to see if there is any possible way a miner could intentionally defeat the guard short of removing it. Any gap that would permit a person to intentionally reach a pinch point is invariably cited. There does not appear to be any reason to think that this will change under the new policy.

As with previous editions, the new guide comes with pictures of effective guarding, now including instances where a single guard can protect more than one item of equipment. MSHA officials have stated that they do not want inspectors issuing citations based on what is in the policy, but operators will want to consult the policy to determine what is currently accepted by MSHA as effective and lawful guarding.

MSHA recommendations

The guide lists numerous considerations and recommendations as to what will constitute effective guard design. Here are select examples, paraphrased for brevity:

* Does the design prevent contact with all moving machine part hazards?

* Will the guard stand up to wear and tear?

* If a conveyor belt breaks, will the whipping action be contained?

* Is the guard securely installed?

* Are guard openings small enough to keep persons from reaching a hazard?

* Is the guard free of sharp edges or other hazardous parts?

* Is the guard designed so that it can be safely handled during maintenance?

* Is the guard tamper resistant?