MSHA Likely to Target Metal/Non-Metal Mines for Increased Enforcement

The Metal/Non-metal mining industry has recently experienced what MSHA is calling a dramatic spike in mining-related deaths.  Specifically, there were 9 mining deaths in Metal/Non-metal sector in the fourth quarter of 2013 and 9 more since the beginning of this year.  

Assistant Secretary of Labor for MSHA, Joseph Main, recently addressed this spike in fatalities in the Metal/Non-metal sector at the recent Special Institute on Mine Safety and Health Law sponsored by the Eastern Mineral Law Foundation and the Department of Labor. Assistant Secretary Main indicated that MSHA would utilize all tools at its disposal to reverse this trend, including increased enforcement.  MSHA also recently distributed a news release that echoed Assistant Secretary Main's comments:

"The recent news on the rise in mining fatalities is disturbing," said Joseph A. Main, assistant secretary of labor for mine safety and health. "We plan to engage all of our tools: enforcement, education and training, and technical support, to respond to this trend."

MSHA also announced that it would convene a stakeholder meeting on May 5, 2014 at its headquarters in Arlington, Virginia to discuss the recent increase in fatalities and the actions needed to reverse the trend.  

Based upon the recent comments coming from MSHA, mining operations in the Metal/Non-metal sector can expect the Agency's enforcement efforts to be stepped up considerably, including an increase in impact inspections.  Metal/Non-metal operations with questionable or poor compliance histories and/or high rates of injury are particularly susceptible to being targeted by MSHA. 

MSHA Releases Final Rule on Coal Dust Exposure

One of the primary objectives of Assistant Secretary of Labor for Mine Safety and Health, Joseph  Main, has been to overhaul coal dust exposure regulations in order to further eradicate black lung disease among coal miners. In furtherance of that objective, MSHA launched an initiative in 2009 entitled "End Black Lung - Act Now!"  In 2010 MSHA proposed a new rule regarding coal dust exposure as the centerpiece of that initiative.  On April 23, 2014 MSHA announced the final version of that rule at the National Institute for Occupational Safety and Health  (NIOSH) headquarters in Morgantown, West Virginia.  

MSHA's new coal dust exposure rule contains several important changes of which operators should be aware.  The highlights of the new rule include:

  

the overall dust standard is reduced from 2.0 to 1.5 milligrams per cubic meter of air;

the standard for certain mine entries and miners with pneumoconiosis has been reduced from 1.0 to 0.5 milligrams per cubic meter of air; 

immediate corrective action is required when samples are obtained with high dust levels;

more frequent sampling is required of areas known to have high dust levels, including areas closest to production;

the number of positions to be sampled at surface mines is significantly  increased;

several requirements previously applicable to underground miners have been extended to surface miners, including  periodic x-rays and the right for miners with pneumoconiosis to transfer to less dusty areas;

 the method for averaging dust samples has been altered;

 dust sampling is required for entire shifts instead of only 8 hours;

 MSHA will cite operators for any single sample collected by the Agency exceeding the citation level;

the term "normal production shift" is redefined to require that dust samples be taken when mines are operating at a minimum of 80% of production rather than the previous minimum of 50% of production; and

 operators are required to conduct verified on-shift examinations of dust controls.

The entire text of the final rule and some analysis of the same can be found on MSHA's website.  The rule will take effect on August 1, 2014.  Some of the requirements, however, will be phased in during a two-year period after the rule's effective date. Most notably, the reduction in dust limits does not become effective until August 1, 2016.  

 MSHA will be holding field seminars in coal mining regions to provide a comprehensive review of the new requirements.   Operators would be well advised to examine the full text of the new rule and attend the MSHA field seminars.  

West Virginia Legislature Mandates OSHA Training for Public Contractors

By: Mike Addair

The 2014 regular session of the West Virginia State Legislature is in the books.  Several bills affecting the construction industry were introduced during the session and some passed.  One of the construction bills that passed was Senate Bill 376, which requires public contractors to use employees who have received OSHA safety training. 

S.B. 376 prohibits any person or entity providing services as a contractor or subcontractor in the construction, reconstruction, alteration, remodeling, or repair of any public improvement (buildings, structures, highways, sewer systems, etc.)  from employing anyone on the construction site for more than 21 days unless the employee has completed a 10-hour construction safety class certified by OSHA.  Projects on which the cost of all work performed by all contractors is less than $50,000 are not subject to this requirement.  The following classes of persons are also exempt on all projects, regardless of cost:  (1) persons employed by law enforcement (traffic control and security); (2) local, state, and federal government employees and inspectors; and (3) suppliers whose sole function is the delivery of materials to the construction site. 

Pursuant to S.B. 376, if a person is found to have worked on the construction site for more than 21 days without the required training, the Department of Labor will issue a cease and desist order requiring the person to stop his work at the site until he completes the training.  The Department of Labor may also assess a civil penalty of not less than $100 and not more than $1,000 to any person or entity who violates the training or record-keeping requirements of S.B. 376.

S.B. 376 also includes a requirement that contractors maintain records verifying that their employees have received the required training.  Any person who presents fraudulent training records, or falsely represents that an employee has received the required training, will be guilty of a misdemeanor and fined not less than $250 and not more than $2,500. 

S.B. 376 will be codified in the West Virginia Code at W. Va. Code §21-3-22.  It will be effective July 1, 2014.  For the first year after the effective date, contractors will be afforded 90 days after starting employment at the public improvement site to obtain the required training. Accordingly, the 21-day requirement will take effect July 1, 2015.  Nevertheless, contractors who wish to bid on public contracts would be well advised to immediately plan for all their employees to complete a 10-hour OSHA-certified safety class as a matter of course.   

MSHA Releases Results of January 2014 Impact Inspections

by Mike Addair and Alex Greenberg

The Mine Safety and Health Administration (“MSHA”) recently announced the results of impact inspections that were conducted in January 2014. MSHA’s press release states that it conducted impact inspections at 11 coal mines and 3 metal/nonmetal mines in January. These inspections led to federal inspectors issuing 198 citations and 11 orders. Many of these citations were related to ventilation, electrical, and health violations, among other allegedly hazardous conditions.

Since 2010, MSHA has conducted over 700 of these “impact inspections”, which have led to the issuance of 11,670 citations, 1,087 orders and 49 safeguards. MSHA began conducting impact inspections shortly after the April 2010 mining disaster that occurred at the Upper Big Branch Mine in West Virginia.

MSHA conducts impact inspections on mines that merit increased enforcement activities due to poor compliance histories or particular compliance concerns. MSHA typically conducts impact inspections at mines that have the following characteristics: a high number of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries, or illnesses; fatalities; adverse conditions such as increased methane liberation, faulty roof conditions, inadequate ventilation, and problems with respirable dust.

Operators should be aware that MSHA has stepped up its enforcement practices when it comes to impact inspections. MSHA may deploy additional inspectors to ensure that the completeness of an inspection or it may conduct the inspections during “off hours” (i.e., evenings and weekends). Also, MSHA has been securing lines of communication as soon as it arrives at a mine to ensure that operators do not provide advance notice of the inspectors’ presence. In January 2014, MSHA claimed that it “secured mine communications” before conducting an impact inspection in the evening, despite the fact that this was the mine’s first impact inspection.

To ensure that a mine stays off MSHA’s radar for impact inspections, it is essential for operators to pay close attention to their compliance history. Also, operators should vigorously challenge questionable citations and orders. As always, it is important for operators to ensure that their safety practices meet industry regulations.

OSHA to Target Communication Tower Industry in Wake of Rise in Fatalities

More communication tower workers were killed on the job in 2013 than in the previous two years combined.  Thirteen communication tower workers were killed in 2013, compared to 6 fatalities in 2011 and 2 fatalities in 2012.

In addition to the rise in fatalities in 2013, four more tower-related deaths have occurred in 2014.  Three of those deaths occurred in Clarksburg, West Virginia when two towers collapsed as workers were making structural repairs.  One of the towers, standing 300 feet tall, collapsed as workers were removing bracing in the course of reinforcing the legs of the tower, killing two of the workers.  The collapse of the first tower put stress on the guy wire of a second tower, which also collapsed and killed a firefighter responding to the scene.

The increased fatalities in 2013 and the rash of fatalities early in 2014 has caught the attention of the Occupational Safety and Health Administration ("OSHA").  The agency recently announced that it will be increasing its enforcement efforts in the communication tower industry.  Accordingly, firms who construct and/or maintain communication towers should review their safety policies and ensure that their operations are in strict compliance with all applicable OSHA regulations.  Such firms should also be prepared for increased scrutiny, including increased inspections and more severe penalties for violations.

West Virginia Proximity Detection Rule Remains Open for Comment

On January 27, 2014 the West Virginia Board of Coal Mine Health and Safety filed for public comment a rule entitled Haulage Safety Generally, which would require, among other things, the installation of proximity detection devices on certain underground mining equipment to prevent injuries resulting from being struck by mobile equipment.  The period for public comment was initially set to expire on February 28, 2014, but was recently extended to March 11, 2014.  

West Virginia's proposed haulage safety rule would place the State at the forefront of requiring proximity detection technology, which employs cameras to warn equipment operators and shut down their equipment when it comes within certain distances of hazards or other miners.  The federal Mine Safety and Health Administration ("MSHA") proposed a proximity detection rule in August of 2011, but that rule has remains stalled as of this date.

The haulage safety rule proposed by the West Virginia Board of Coal Mine Health and Safety contains, among others, the following significant provisions:

• Installation of proximity warning systems on all new place change continuous miners within 6 months of the effective date of the rule and installation of proximity warning systems on all rebuilt place change continuous miners within 12 months of the effective date of the rule. All existing place change continuous miners in operation must be refitted with a proximity detection system within 36 months of the effective date of the rule.

• All scoops and other battery-powered section haulage equipment not provided with a proximity detection system must, at a minimum, employ cameras or other approved alternatives that provide alerts or warnings to persons traveling in the area.

• All proximity detection units must be tested at the beginning of each production shift and must be maintained according to manufacturer's specifications and recommendations. Knowingly tampering with or attempting to tamper with proximity detection equipment is made a felony punishable by up to 10 years in jail and a $100,000 fine.

• Equipment Operators are tasked with the responsibility of ensuring proper visibility by removing from their equipment all items that inhibit or restrict visibility.  

• Equipment Operators must physically walk the path of travel to ensure the absence of hazards or persons in the path of travel, and they must sound the audible alarm on their equipment when approaching any blind spot, turn, or offset in the haulage way or through any brattice material.

• Mine operators must provide all underground miners with at least 100 square inches of reflective or highly visible clothing to be worn at all times while underground.

• At least two devices from among approved strobe lights, pogo sticks, or cones must be employed where work is being performed that presents a high risk of collision or contact by equipment.

These provisions represent major change in the safety requirements for mobile equipment employed in underground coal mines.  Operators are encouraged to review West Virginia's proposed haulage safety rule in its entirety to determine precisely how they will be affected. Comments on the proposed rule can be submitted to Joel L. Watts by email at joel.l.watts@wv.gov or by regular mail at 1900 Kanawha Blvd. E., State Capitol Complex, Building 6, Suite 652, Charleston, West Virginia 25302.

Company Pays Former Miner to Resolve Suit Alleging Termination in Violation of MSHA’s Whistleblower Provisions

by Alex Greenberg

A company that operates a stone crushing plant in Maine will provide compensation to a former employee and take other corrective action to resolve a lawsuit filed by the U.S. Department of Labor. The stone crushing plant, which produces gravel for the public and cement mills, operates under MSHA’s jurisdiction. The lawsuit was brought before the Federal Mine Safety and Health Review Commission.

In 2011, a general laborer filed a complaint alleging that the company had terminated his employment in retaliation for making safety complaints. MSHA’s investigation concluded that the laborer had engaged in a protected activity when he alerted the company about unresolved safety problems.

For example, the laborer refused to turn on the plant’s generator until the required safety guards had been installed and called MSHA to report the company’s failure to install the guards. The laborer alleged that this type of activity resulted in his termination.

In December of 2013, a settlement was approved that requires the company to pay $6,000 in back wages to the former employee, along with a $10,000 fine to MSHA. Also, the company has to post a notice at the workplace that outlines the employees’ whistleblower rights.

Under Section 105(c) of the Federal Mine Safety and Health Act, a miner who refuses to work in unsafe conditions or identifies hazards is protected from retaliation. Keep in mind that all persons working in a mine, including contractors, construction and demolition workers, are considered “miners” entitled to exercise whistleblower rights. MSHA further warns that whistleblowers should not be in fear of discrimination or retaliation because such intimidation can cause employees to remain silent about hazards.

More information on a miner’s rights and responsibilities under the Federal Mine Safety and Health Act is available on MSHA’s website:

www.msha.gov/S&HINFO/minersrights/minersrights.asp

OSHA'S Proposed Silica Rules Open For Comment Until February 11, 2014

A recent post to this space discussed OSHA's publishing of its Notice of Proposed Rulemaking (NPRM) for Occupational Exposure to Respirable Crystalline Silica in the Federal Register. The NPRM seeks to decrease the OSHA PELs for silica exposure to 50 micrograms per cubic meter of air (μg/m3) on an 8-hour time-weighted average. The new rule would also include new provisions governing the measurement of silica exposure, limiting workers' access to areas where silica exposures are high, methods for reducing exposures, provision of medical exams to workers with high silica exposures, and provision of training for workers regarding silica-related hazards. The new rules would apply to all OSHA industry standards, including the General Industry Standards. 

 The proposed proposed rule was published in September of 2013 and was initially open for comment until December 11, 2013.  The deadline for submitting comments has since been extended.  The comment period will remain open until February 11, 2014.  Employers who may be affected by this proposed rule should review its provisions and immediately submit any comments they have by following this link. 

MSHA Announces Results of December 2013 Impact Inspections

The Mine Safety and Health Administration ("MSHA") announced shortly after the massive explosion that killed 29 coal miners at the Upper Big Branch Mine in Montcoal, West Virginia that it would begin conducting "impact inspections" of mines that merit increased enforcement activities due to poor compliance histories or particular compliance concerns.  The following characteristics will typically place a mine on MSHA's radar for impact inspections:  high numbers of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries, or illnesses; fatalities; adverse conditions such as increased methane liberation, faulty roof conditions, inadequate ventilation, and problems with respirable dust. 

Impact inspections do not mean only increased numbers of inspections at a particular mine.  Enforcement practices are also stepped up to include inspections during "off hours", such as evenings and weekends.  MSHA will deploy additional inspectors on impact inspections to ensure that the mine is more thoroughly inspected.  MSHA may even take control of the operator's phone and other lines of communication to prevent advance notice of the inspectors' presence. 

MSHA has recently released the results of impact inspections conducted in December of 2013.  According to MSHA's press release , the Agency conducted impact inspections at 11 coal mines and 2 metal/nonmetal mines in December, which resulted in the issuance of 135 citations, 24 orders, and 1 safeguard.  

MSHA has conducted 700 impact inspections since April of 2010, issuing 11,562 citations, 1,076 orders, and 49 safeguards as a result. The last place that an operator wants to find itself is on MSHA's radar for impact inspections.  Accordingly, it is important for operators to closely monitor its compliance history, challenge questionable citations and orders, and ensure that its safety practices meet industry regulations. 

MSHA Releases Results of October and November 2013 Impact Inspections

The Mine Safety and Health Administration ("MSHA") announced shortly after the massive explosion that killed 29 coal miners at the Upper Big Branch Mine in Montcoal, West Virginia that it would begin conducting "impact inspections" of mines that merit increased enforcement activities due to poor compliance histories or particular compliance concerns.  The following characteristics will typically place a mine on MSHA's radar for impact inspections:  high numbers of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries, or illnesses; fatalities; adverse conditions such as increased methane liberation, faulty roof conditions, inadequate ventilation, and problems with respirable dust. 

Impact inspections do not mean only increased numbers of inspections at a particular mine.  Enforcement practices are also stepped up to include inspections during "off hours", such as evenings and weekends.  MSHA will deploy additional inspectors on impact inspections to ensure that the mine is more thoroughly inspected.  MSHA may even take control of the operator's phone and other lines of communication to prevent advance notice of the inspectors' presence. 

MSHA has recently released the results of impact inspections conducted in October and November of 2013.  According to MSHA's press release , October impact inspections of six coal mines and three metal and nonmetal mines resulted in the issuance of 120 citations and 10 orders.  November impact inspections of 12 coal mines resulted in the issuance of 174 citations, 11 orders, and 2 safeguards.  One mine was cited for providing advance notice of an impact inspection, which was detected by MSHA while monitoring the mine's communication system.  

MSHA has conducted 687 impact inspections since April of 2010, issuing 11,427 citations, 1,052 orders and 48 safeguards as a result. The last place that an operator wants to find itself is on MSHA's radar for impact inspections.  Accordingly, it is important for operators to closely monitor its compliance history, challenge questionable citations and orders, and ensure that its safety practices meet industry regulations.