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.