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.