Newly Proposed MSHA Workplace Exam Law is Unnecessary, Counterproductive, and Ineffective. The Good News? We Can Still Stop It.

MSHA is pushing for new, unnecessary rules again. This time they’re holding public comment meetings for a potentially disastrous MSHA workplace exam law.

The proposed rule change was immediately met with a chorus of skepticism from industry leaders when it was introduced last month.

MSC co-founder, Kim Redding, attended the first public comment meeting in Salt Lake on July 19^th with a representative of our partner organization CalCIMA. Both experts had an opportunity to ask questions in an attempt to clarify potential troubling points within the proposed rule change. Kim’s goal was to discern the agency’s goals and motives in pushing for the new MSHA workplace exam law.

Unfortunately, our suspicions were confirmed.

MSHA is honing workplace exams from a blunt instrument for handing out fines to a razor sharp axe. This new rule will affect everyone: mine workers, mine management, owners and even mine contractors.

How? I’ll go through that in detail in a bit.

First, we need to go over the current rule and how it compares to the proposed regulation.

The Current MSHA Workplace Exam Law

Here’s a very clear summary of the current regulation from William Doran and Gwendolyn Nightengale of Ogletree Deakins:

The existing regulation requires that “a competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health” and then “promptly initiate corrective action to correct such conditions.” In addition to this examination and corrective action, the operator is also required to maintain a record that the examination was conducted. Under the existing rule, any imminent danger that the operator identifies must be brought to the immediate attention of management, and all persons are to be withdrawn from the affected area.

The current workplace examination rules (30 CFR Part 56 and 57) have also gotten significantly stricter over the past 2 years through program policy letters. Kim even addressed the Program Policy Letter changes to Workplace exam in a video update:

MSHA inspectors already lack consistency from one person to the next. The new MSHA workplace exam law would only make this problem worse.

What is the proposed MSHA Workplace Exam rule?

According to MSHA’s press release the new workplace exam rule would require that:

• A competent person examine the working place before miners begin work in that location.
• Mine operators promptly notify miners of any conditions that may adversely affect their safety or health.
• A competent person sign and date the examination record before the end of each shift. The examination record must include a description of locations examined, conditions found and corrective actions taken.
• Records must be made available for inspection by MSHA and miners’ representatives, and operators must provide a copy of the records upon request.

At the meeting, Kim and our partner CalCIMA representative attempted to get clarification on the glaring ambiguities within the new rule. Unfortunately, the Question and Answer session can be boiled down pretty easily:

Q: What is MSHA’s definition of “adverse conditions”?

A: MSHA representatives would not get specific.

Q: How are the mine operators supposed to inform everyone on site of an “adverse condition” discovered in a workplace exam

A: MSHA representatives did not have an answer

Q: Kim asked MSHA about the end game for this new rule. Why create a new rule when we already have one and it was the safest year ever last year?

A: MSHA’s representatives dodged the question.

The full transcript of the hearing will be online in 2 weeks. I’ll dive into more specific questions and arguments then. But for now, let’s look at the information we have.

What’s The Endgame?

MSHA claims they’re not changing the current rule but industry experts have been through this process before. If the rule wasn’t changing, why devote huge amounts of valuable time and government resources making this change?

MSHA’s goal is clear:

There’s a long list of reasons this rule change is a bad idea. Keep reading for what a former MSHA inspector has identified as the 3 worst potential consequences of this law:

1. The “New” MSHA Workplace Exam Law Has Already Been Tried and Is Ineffective

This proposed “new” rule, has been tried before and history has shown it doesn’t accomplish the goals of lowering fatalities and injuries. As anyone on a coal mine knows, a worker must have an MSHA Blue card in order to complete a coal mine workplace exam.

Essentially, MSHA has been individually verifying who is competent to conduct a coal mine workplace exam for years.

How has that worked out?

There have been huge, deadly disasters under MSHA’s watch where MSHA’s own report cited “insufficient workplace exam” as a root cause.

MSHA approved every person conducting those “insufficient” workplace exams.

Joe Mains cited the 122 deaths on M/NM sites from 2010 to 2015 as a reason this new law is necessary. But how will this standard improve safety at M/NM operations when it hasn’t worked in coal mines? Insanity is trying the same thing over and over while expecting different results.

2. The New Rule Could DECREASE Miner Safety

This law would not improve safety and may actually make workers less safe. Constant assessment of the work environment is the strength of the current MSHA workplace exam law.

But in the new rule, MSHA wants workplace exams conducted with documentation of all “adverse conditions” (the definition which was not clarified by MSHA, mind you) “before work can commence.”

Unfortunately, there’s a gaping hole in this thought process that could affect mines all over the country. What about the rest of the day?

A changing environment is in the nature of mining. Site terrain changes when you remove dirt. That’s a law of nature. That doesn’t even take into account constantly changing stockpiles or wear and tear on machines and tools.

How is MSHA defining a competent person? MSHA would apply the Part 46 competent person standard to this rule change. This would force managers to declare anyone who is doing a workplace exam a “competent person” Why? MSHA wants to “hold specific workers accountable” (read, heavily penalize) if anything changes between the time of workplace exam and work occurring. I’ll get into the specifics on that in a few seconds.

This New Rule Could Have Disastrous Results. Here’s How:

Let’s go through a scenario that will DEFINITELY happen if this new rule is put into place:

A miner in Wyoming conducts his workplace exam before beginning operations (as required by the new law). Let’s call him Jim. Jim’s boss wants to start work at 8 so Jim completes his workplace exam and paperwork at 6am.

It’s early fall in Wyoming, so the temperature is 25 degrees when Jim is conducting his workplace exam. But by noon the temperature jumps to 55 degrees. A temperature swing like that will dramatically change conditions at the quarry:

• As temperatures rise, ice melts which causes water to seep and erode areas within the high wall
• Large rocks are fall from the high wall face as erosion occurs and the center of gravity changes
• The high wall naturally heaves as temperatures rise

All of these changes are dangerous, potentially even deadly.

But they can be observed and avoided with the proper procedures, training, and a constant workplace exam.

What if an MSHA inspector shows up at noon and takes a look at the workplace exam Jim conducted at 6am? Conditions have definitely changed. Under the new rule, that’s a violation and a giant fine for Jim’s company and maybe his personal bank account.

Why should Jim and his company get fined for the earth’s response to temperature swings?

How big is Jim’s personal fine? What does that do to his family? The MSHA can use the IRS to enforce personal fines. Does that drain Jim’s college fund for his kids?

On top of that, Jim’s managers are all open to personal fines.

Think this is overly dramatic? Think again. Kim learned MSHA’s tricks and tendencies when he was an inspector. The ambiguity within this proposed rule would be used as a weapon whenever an inspector chooses. This “hypothetical” situation WILL occur.

3. New MSHA Workplace Exam Law Will Affect Every Employee (And Contractor) At Every Mine

As I mentioned at the beginning of this article, this new rule would open up every worker on a M/NM site to personal fines and liability. When the new rule proposal was announced last month, Doran and Nightengale pointed out that:

These new requirements present significant enforcement liability exposure for mine supervisors. Past enforcement experience has demonstrated that MSHA will focus closely on any conditions and issues identified in workplace examination records to evaluate management’s knowledge of hazards. Identified conditions that cannot be matched up with corresponding corrective actions will then form the basis for allegations of “aggravated conduct” to support the issuance of 104(d)(1) “unwarrantable failure” citations and orders. MSHA will, in turn, use those citations to initiate 110(c) special investigations to determine if agents of the operator have “knowingly violated or knowingly authorized the violation of” a mandatory safety standard. The workplace examination record will likely be the primary evidence of this agent knowledge.

Jim’s scenario above? It could happen to:

• Mine Workers
• Mine Managers
• Contracting Companies
• Human Resources for both the mines and their contractors

If you think the mining industry has an issue attracting talent now… just wait until potential employees hear about a low-level worker having his financial savings wiped out for signing a piece of paper.

Or as Nick Scala put it on the MSHA Defense Report:

At a time when mines are already experiencing problems with finding miners willing to become agents of management because of the fear of prosecution by MSHA, the proposed rule could amplify that issue. The requirement to sign and date the examination report, and its potential to create unintended liability issues, will be a major hurdle, if this rule becomes finalized in the current form. As an examiner would be certifying that a working area is free of hazards, or that all hazards were recognized in an area, the likelihood of a Section 110 action, or personal lawsuit, in the event of an injury or death is more ominous than ever.

Every single person on a mine will have their financial stability in the balance – Every Day – if this new MSHA workplace exam law gets through.

I think we’ve established this proposed rule is a potential disaster for both safety and mine workers.We need to stop the proposed new MSHA workplace exam law, but how? What can you do about it?

Tell MSHA Why This Proposed Law Is A HUGE Mistake

Getting your opinion on the public record makes a massive difference in a rulemaking case like this. Telling MSHA what you think could be the difference between this proposal becoming law and not.

Here are the 5 ways you can help stop this rule change:

1. You can comment on the proposed rule change here.
2. Go to the final public comment meeting for this proposed rule. The meeting information is: August 4, 2016 – Sheraton Birmingham Hotel, 2101 Richard Arrington Jr. Boulevard North, Birmingham, AL 35203 – Contact Number: (205) 324-5000
3. CALL MSHA Directly. The correct phone number is: (202) 693-9400
4. Mail MSHA at: MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E40
5. Or our personal preference:

MSHA requires a “competent person” to deliver and sign all Part 46 training and paperwork. But that raises a lot of questions with very few clear answers. What exactly does “Competent Person” mean? Who decides if someone is competent and how? Does our competent person need to be MSHA approved? Does my MSHA competent person need to provide all of our training?

You’ll get an answer below to the most frequently asked Part 46 MSHA competent person questions. And if I don’t answer your question, let me know in the comments. I want this article to be as useful for you as possible.

What is the Definition of an MSHA Competent Person?

According to 30 CFR § 46.2 (d), MSHA’s Definition of a Competent Person is:

“A person designated by the production-operator or independent contractor who has the ability, training, knowledge, or experience to provide training to miners in his or her area of expertise. The competent person must be able both to effectively communicate the training subject to miners and to evaluate whether the training given to miners is effective.”

A bit vague, no? On top of that, there is a completely different (and more strict) set of rules for MSHA Part 48 trainers – more on that later.

Let’s get more specific.

Who decides if a person is qualified to be an MSHA competent person?

According to MSHA, a Competent Person must be “designated by the production-operator or independent contractor.” Essentially, management chooses who is a competent person.

What qualifications does a Part 46 MSHA competent person need in order to fulfill MSHA part 46 training requirements?

MSHA says “ability, training, knowledge, or experience to provide training.” Basically, do you know the job well enough to teach it to someone else. The competent person can also be overseeing a trainee taking an online MSHA course or watching a mine safety video

When is a competent person required?

A competent person is needed any time a company must complete Part 46 MSHA training. This includes New Miner Training, Annual Refresher Training and even Task and Site-Specific Training.

Does a Part 46 Competent Person need to be “MSHA Approved”?

No, Part 46 (§ 46.4(a)(2) to be exact) does not require MSHA review or approval of any competent person. This is extremely different from MSHA’s Part 48 trainer requirements.

How does a company officially designate a Competent Person?

Every company’s competent person must be listed in the cover letter of their Part 46 MSHA Safety Training Plan. There is no limit to the number of Competent People a company can list.

Does the Operator or Contractor Need to Explain the Rationale for Choosing an Individual as a “Competent Person” or Justify their Training Background?

No. Part 46 does not require companies to document the background of a competent person. Choosing a Competent Person is left at the company’s discretion.

MSHA may question companies “in cases where MSHA has reasonable concerns that an individual designated as a ‘competent person’ does not have the necessary expertise to instruct or to evaluate the effectiveness of the training.” But this is rare.

You know who’s qualified at your company. Just use your best judgment.

Does the same standard apply to Part 48 trainers?

No, the competent person standard only applies to Part 46. Part 48 training must be conducted and verified by a trainer with an MSHA Blue Card. A Blue Card trainer goes through extensive testing and must be approved by MSHA to receive their certification.

Only a Blue Card MSHA trainer can sign a Part 48 5000-23 form.

How do I know if I’m on a Part 46 or a Part 48 site? What’s the difference between Part 46 and Part 48?

This is one of our most asked questions.

In fact, we get this question so much that we created a tool to get you immediate answers. Just fill out a few simple questions on MSC’s free Part 46 or 48 tool and instantly get an expert’s answer.

What does the Competent Person need to cover during the MSHA training?

That depends on what type of Part 46 training they’re conducting. You can go here for detailed information on MSHA’s Part 46 training requirements.

Can a competent person who provides training to miners be credited with the training they provide?

Yes. A competent person can apply any training they instruct toward their own training certification requirements. It may feel weird filling out and then signing your on MSHA paperwork, but the practice is MSHA approved.

Can a contractor list their client, the mine operator, as a competent person?

Yes, in fact many times it’s required. Under § 46.4(b), you may arrange with a mine or independent organization to provide all or part of your training, including site-specific hazard awareness training. However, site-specific hazard awareness training must be conducted by an organization that has access to the site and is knowledgeable about the site-specific hazards at the mine.

Section 46.3(b) specifically provides that you must indicate in your training plan the organization and/or the competent person who will provide the training. If a mine is providing the site-specific, they must be listed on your training plan.

Does all of a company’s training need to be conducted by the same competent person?

No, and sometimes this won’t even be possible. Trainees can get instruction from any number of people as long as the trainer is qualified in the subject and listed as a competent person in the company’s Part 46 training plan.

Does a contractor’s MSHA Competent Person need to be on site when they’re working?

No. The employer must ensure that a competent person performs designated duties defined in 30 CFR § 46.2(b). The employer must also ensure that all employees are trained to recognize developing hazards. The competent person doesn’t need to oversee operations.

“Enhanced” MSHA Rules To Live By Enforcement Begins July 1st, Will Affect Both Operators and Contractors

In a press release distributed on June 26th, MSHA announced “Enhanced” enforcement of its MSHA Rules To Live By standards.

MSHA’s news release states:

On July 1, the U.S. Department of Labor’s Mine Safety and Health Administration will begin enhanced enforcement of “Rules to Live By,” its initiative of standards commonly cited following mine deaths, and nine underground coal mine exam rule standards focused on the greatest risks to miners in underground coal mines.

While 2015 was the safest year ever for mining in the US, it appears Joe Mains is determined for one final push during the last few months of his tenure.

In the announcement of this push, Joe Mains states:

We will more extensively employ our web-based calculators on Rules to Live By and the exam rule to determine the number of respective citations and orders issued during the most recently completed inspection periods for which data are available. Inspectors will provide mine operators with a copy of the results, encouraging them to use the tools to monitor their own compliance and take action to eliminate violations. The results will be added to criteria for consideration of impact inspections, particularly targeting mines with elevated noncompliance of these standards.

You know what that means…

Enforcement initiatives are nothing new with this administration. But there are signs that this  might be especially far reaching with large numbers of coal inspectors potentially flooding the M/NM sector.

“Since the [MSHA Rules To Live By] programs began, MSHA has issued more than 45,000 “significant and substantial” citations and orders for violations of Rules to Live By standards. More than 15,000 citations and orders were issued for violations of exam rule standards since implementation of the rule. These represent violations MSHA has cited during mine inspections on critical, frequent hazards that cause or contribute to fatal mining accidents. Mine operators need to conduct site examinations to find and fix conditions and hazards if miners are to be better protected,” said Mains.

That number is bound to climb steeply in the coming weeks.

Prepare Your Operation and Contractors For “Enhanced” MSHA Rules To Live By Enforcement

Go over your operation with a fine-toothed comb, obviously with a heavy focus on the Rules To Live By Enforcement Standards. Here is a link to the MSHA Rules To Live By standards. And here is an MSHA document outlining what inspectors look for when focusing on Rules To Live By standards.

But you should also go through your paperwork. Make sure you have the fully completed New Miner training certificate for every employee. Make sure every employee is task trained for every job they conduct and tool they use to complete their work.

If you have any contractors working on site make sure they’re informed. I’d recommend doing an audit on their MSHA compliance yourself. That way if you find anything, they have time to correct the issue before MSHA shows up.

Dedicate significant time to this audit. A thorough self-inspection could save you a lot of time and money down the road.

And if MSHA does show up at your operation watch out for the tricky tactic I wrote about last week that some MSHA inspectors use to triple MSHA fines.

What Else Can You Do?

Forward this information to your colleagues. Everyone needs as much time as possible to audit their operations and get prepared.

Here is the entire press release:

MSHA launches enhanced Rules To Live By enforcement to encourage better examinations by industry’s operators 

ARLINGTON, Va. – On July 1, the U.S. Department of Labor’s Mine Safety and Health Administration will begin enhanced enforcement of “Rules to Live By,” its initiative of standards commonly cited following mine deaths, and nine underground coal mine exam rule standards focused on the greatest risks to miners in underground coal mines. The agency announced these measures on May 12, 2016, at a mining industry stakeholder meeting in Arlington.

How A Few Words Cost Thousands in MSHA Fines

MSHA inspectors are at your mine for one reason: to find violations and write tickets. Once they find a violation, they must determine how they should mark the violation to assess MSHA fines.

One of the major determining factors for marking MSHA fines as “Negligence” or “High Negligence” is how long management knew about a violation without taking action. When I was an MSHA inspector I would always ask “How long has that existed?” when writing a ticket. Many times inspectors will suggest how long a violation existed. Something like, “It looks like that’s been broken for a few years, don’t you think?”

This is where you can really step in it.

Some managers agree thinking it will get the inspector off the property faster. Instead, they may have tripled the MSHA fine up to $242,000.

How? You probably already know. The manager confirmed a time frame.

If you don’t know how long a violation has existed that should be your answer, “I don’t know.” Nothing more.

I’ve seen 3 words cost a mine operator $7,000. Here’s How:

To fill fuel the tank at this mine, a person must climb a ladder with a fuel hose. Recently, an inspector came to the site and pointed out that the person climbing the ladder can’t keep 3 points of contact because they need one hand to hold the fuel hose.

While the inspector is right and the tank should be (and was) corrected, this fuel tank has been repeatedly inspected for literally decades with no warnings, no MSHA citations, and no MSHA fines.

The inspector then asked my client, “How long has this tank been like that?” This leading question prompted the 3 words that cost my client $7,000.

“Heck, 25 years.”

By agreeing to a time frame, he acknowledged that he knew a violation existed and did nothing to fix it – even if he didn’t know it was a violation. And that is how a violation escalates from low or moderate negligence to high negligence or reckless disregard.

(Oh, and since you’re in management, making this mistake can also expose you to personal MSHA fines – going after YOUR bank account – as high as $242,000. But that’s another post.)

What he should have said was…

“That was a violation? I didn’t know. No one has ever said that was a violation before.” Don’t accept the premise of his leading question.

You can even lose money when the inspector is wrong

That’s right. You can lose money if an inspector incorrectly cites a condition as a violation.

I’ll give you an example from a client in the northwest.

At this particular mine there is roadway on top of a hill with a slope on either side. A little while ago a new inspector was at this mine and decided this roadway needed berms and the mine was in violation. The inspector asked how long the road had been like this. The owner’s response?

“About 30 years.”

That’s a major MSHA fine. It’s also incorrect.

The MSHA regulation for berms states:

30 cfr 56.9300(a) – Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.

This roadway was compliant with MSHA regulations. Unfortunately, my client accepted the premise of this inspector’s question. Even though it wasn’t a violation the mine operator received a $23,000 ticket.

Yes, the operator can fight the ticket and win. But legal fees will cost almost as much as the ticket and take a significant investment of his time. Going to court also comes with a big risk. Depending on the judge, he could lose his case which would cause him to pay the ticket AND his attorney.

Prevent MSHA Fines By Spotting Incorrect MSHA Citations Before They’re Filed

He should have argued the ticket on the spot with something like, “What’s the problem? You guys have inspected my site for years and that’s never been an issue. Why didn’t all the other inspectors think this was a violation?”

If after this conversation the inspector still believes it’s a violation, the operator should have been issued a warning with the chance to re-mediate.

But because he slipped up, this operator paid the fine plus the cost of fixing the berm (which also caused weeks of downtime).

The simple question of “how long has that existed?” opens a nasty can of worms.

If someone at your site falls into this trap you’ll be getting a visit from a Special Investigator.

How is a Special Investigator different than an MSHA Inspector and what should you do if one is on your site? That’s a topic for another day.

MSHA Inspector Actions and Transfers Are Cause For Industry Concern

I think you’ll agree when I say complying with MSHA regulations is harder than ever. Regulations seem to vary wildly from one inspector to the next. You never know what will happen when an MSHA inspector shows up.

MSHA seems determined to constantly push (and expand) the boundaries of federal regulations.

This week there were serious signs that MSHA will be stepping up their M/NM enforcement even further and is pushing for more jurisdiction – yet again.

MSHA Inspector Crosses The Line

Our expert, Kim Redding, reports that MSHA is attempting to claim jurisdiction over commercial sales yards, even if they don’t have any mining activity. MSHA has no precedent for claiming jurisdiction (more on that later) and has – to our knowledge – never previously attempted to regulate commercial sale yards.

This new development occurred while Kim was conducting an on-site audit for of his client mines in the Northwest. His client operates a Sand and Gravel pit with a connected sales yard where they both store material and load customer trucks.

Recently, an MSHA inspector showed up while the operation was closed. Normally this would cause the inspector to return when the mine was open for business. But not this one.

This MSHA inspector claimed that being open or closed is “a formality” (which it’s not) and began his inspection.

And when I say he began his inspection, that included the commercial sales yard that does not fall under his jurisdiction. This site has been in operation for years and never been inspected by MSHA.

He asked for everyone’s MSHA training certificates and other compliance documents. He inspected a Front End Loader that only worked on the sales yard filling customer trucks. I think you can guess, how that went….

On top of that, he forced the operator to TURN ON their processing plant and create product so he could inspect the shut down plant. This is the first time we’ve ever heard of this kind of an incident.

Here’s the thing:

There have been rumors that MSHA is angling for expansion of their jurisdiction to include recycling, concrete and asphalt plants. This week’s attempt appears to further those suspicions.

And the agency certainly has a well documented history of expanding their jurisdiction whenever they get an opportunity.

Why does MSHA want to expand their jurisdiction?

(Hillary wants to shut down coal- Source: Money.CNN)

The 2nd incident this week may provide an explanation.

Coal has become a political punching bag in recent years.

It’s not just talk, though. Coal mines have been shuttered at a seriously concerning rate. Take a look at the stats from the past few years:

The number of coal mining operations in the US has fallen off a cliff.

That’s almost 200 operations per year closing their doors. And coal mining man hours are lower than they were during the great recession.

How does that affect the rest of the industry?

With fewer coal operations occupying their time those coal inspectors will have nothing to do. And do you think MSHA is going to fire any coal inspectors?

Not a chance.

Especially when MSHA continues to hire new inspectors (even if the quality and training of MSHA inspectors was declared to be a widespread and growing problem by an independent DOL internal review).

When coal mines close, MSHA will send inspectors elsewhere; the M/NM sector.

And it may have already begun.

MSHA Inspector On The Move

A coal inspector from Kentucky conducted an inspection in Washington State this week.

On its face that may seem innocuous but as Jim Sharpe has pointed out in the past, even MSHA’s seemingly small actions can cause enormous, seismic shifts. Why?

This transfer shows MSHA has already started shifting their resources from coal to M/NM. This may very well be the beginning of coal inspectors flooding Metal and Aggregate mining operations across the country.

These two incidents could combine for serious trouble in the near future. MSHA could simultaneously expand their jurisdiction and flood the M/NM mining sector with more inspectors with just these two actions.

And don’t expect an adjustment period. MSHA’s past actions show they will expect immediate compliance if they are able to get jurisdiction over commercial sales yards, recycling, concrete and asphalt operations.

That means every Commercial Sales yard, Recycling, Concrete and Asphalt operation will need to immediately be MSHA compliant. If (and more likely when) the companies aren’t prepared – they’ll be subject to the same large fines that mine operators and contractors already experience.

Are you and your colleagues ready if that happens?

This jurisdiction incident needs clarification before the horses leave the barn. As we’ve seen in the past, once MSHA sets a precedent it will be too late to go back. Fortunately, these issues haven’t been brought to the courts yet so there is no precedent…. yet.

You Can Make A Difference In 1 Minute – What Can You Do?

Get the word out. Email colleagues.

Share this article with colleagues on social media (using the buttons to the left).

You can contact any industry organizations where you’re a member. I know we’ll be speaking with our friends at CalCIMA and the Kentucky Crushed Stone Association to determine a course of action.

You can call MSHA themselves at 1-800-746-1553

Whatever you do, don’t let these incidents pass quietly. MSHA overreach and expansion is not inevitable. You can do your part.

Don’t Let Your Colleagues Get Blindsided By MSHA

Notes on the Q1 Quarterly MSHA Training Call

The Q1 Quarterly MSHA training call was held on April 27th, 2016 and contained quite a few bits of new information. Assistant Secretary of Labor for Mine Safety and Health, Joe Mains opened with an overview of 2015 and looking forward at 2016. Mr. Mains commented that the safest year ever in the U.S. for mine safety and health. He specifically pointed to the drop in silica and respirable dust levels every year since the black lung initiative began.

Mr. Mains also touted the new pattern of violations rules as a success.  When MSHA established the new POV rules in 2010 there were 51 mines that were subject to POV status. In 2016 there was only 1 which didn’t even fully meet the criteria. (I would argue at least some of that drop was companies adjusting to the new rules, but I’ll get into my thoughts in a bit.)

MSHA Looking To Learn from 2015 Tactics

MSHA has “taken an aggressive all hands on deck approach” since August 3rd, 2015 when three miners tragically lost their lives in separate incidents, a first since 2002. Jeff Duncan, MSHA’s Director of Educational Policy and Development, went so far as to call it “aggressive actions on steroids” but was quick to point out the cooperation from industry associations and companies (More on that later).

MSHA officials declared that last year is the template and road map for the future. Coal will now take up best practices discovered on M/NM side. What might that look like?

MSHA Initiatives and Enforcement in 2016

During the call there were repeated statements that MSHA will continue and potentially increase their heightened presence at sites across the country. That includes “more boots on the ground and more focus on enforcement.” We will also see the increase in impact inspections continue.

MSHA indicated they plan to:

• Put more focus on outreach which officials say keeps safety awareness higher.
• Continue talking with industry, and encouraging industry officials focus on learning the lessons from recent serious injuries and fatalities. Especially focusing on an increased use of best practices in pre-op exams.”
• Release Safety Alerts monthly to “keep industry the focused on safety.”
• Conduct more walk and talks on coal side.
• Encourage companies to “look hard at conditions that have cost miner’s lives.” pre-shift examinations. Curb injuries with walk and talks.

Quarterly MSHA Training Call Signals Continued Enforcement

Over the past year MSHA has consistently extended an olive branch to industry associations and leaders. They are involving the mining industry in their safety initiatives through partnerships and meetings, more than ever before. That may be the carrot in MSHA’s carrot and stick approach.

But MSHA officials are also on site more than before. More walk and talks, inspections and meetings.

MSHA sounds convinced their increased involvement has been the crucial factor in improving mine safety. Maybe they’re right when you take the long view. Fatalities and injuries have trended steadily down since the Mine act was passed in 1977.

But they only have 6 months of data to back up their conclusions on these latest, drastic initiatives. It remains to be seen whether it’s a wise choice to base what sounds like an overhaul of the administration’s operating procedures with so little data.

I’m rooting for better industry and MSHA cooperation. The goal of both groups is a safe and productive work force. I’m still leery of Joe Mains’ history of overzealous citations and fines.

What does this mean for you? Get ready to see a lot of your friendly, neighborhood MSHA inspector and other officials this year. Focus on the safety basics and you should be fine.

Let’s just hope MSHA doesn’t turn it’s olive branch into a club over the next few months.

Sign up to get MSHA updates and tips like this sent right to your inbox. Don’t get blindsided by MSHA, stay informed.

You can find the quarterly MSHA training call notes on MSHA.gov. The call’s audio recording will be released later.

The Mining Industry In The U.S. Just Concluded Its Safest Year Ever

Preliminary statistics released by MSHA the afternoon of Thursday, April 7 show that 2015 was the safest year ever in the U.S. mining industry. This closely mirrors the fatality analysis I conducted earlier this year. Mining deaths are down across the board and have been trending that way for decades.

“In 2015, 28 miners died in mining accidents, down from 45 in 2014,” says Amy Louviere, MSHA’s media contact, in the press release.

But the announcement also released more granular data for 2015 than was previously available. This data allows an in depth analysis of the injury rate and total number of injuries. Ms. Louviere continued:

These rates are calculated based on hours of miners’ exposure, a relative measure taking into account recent employment changes in the mining market. The fatal injury rate, expressed as reported injuries per 200,000 hours worked, was the lowest in mining history for all mining at 0.0096.

Take a look at the progress on this key statistic over the last few years:

Mining Industry Injuries Down

But even more impressively, the mining injury incidence rate (again per 200,000 man-hours) dropped significantly. According to Ms. Louviere, “the all-injury rate – reported by mine operators – also dropped to a new low in 2015 at 2.28.”

Not only are less injuries leading to fatalities, there were also less injuries. Period.

Injuries and fatalities lowest ever in mining industry. Even when adjusted for man-hours worked.

Look at the trend over the last few years. This is outstanding progress:

The injury incidence rate is down 25% since 2009.

What does the injury rate translate to in actual numbers? After consulting this very cool incidence rate calculator (and brushing up on a little Algebra) I was able to figure out the total number of hours worked and injuries.

The mining industry combined for a total of 583.3 million man-hours in 2015. During that time, 6,650 total injuries occurred. Again, this number of injuries is a significant drop off. So while man-hours were down 7% from 2014 to 2015, the number of injuries dropped an impressive 13%.

Mining Industry Contractor Safety

Contractor fatalities were also down. In 2015, 8 contractors lost their lives compared to 12 in 2014. Obviously, a single loss of life is too many but a downward trend is great news. Unfortunately, MSHA doesn’t release the Total Injury Rate for Contractors.

The spike in overall fatalities and particularly contractors caused MSHA to declare a surge in the M/NM sector. These trends are promising but don’t look for MSHA to pull back their enforcement any time this year.

“The progress we made in 2015 is good news for miners and the mining industry. It is the result of intensive efforts by MSHA and its stakeholders that have led to mine site compliance improvements, a reduction of chronic violators, historic low levels of respirable coal dust and silica, and a record low number of mining deaths,” said Joe Main, assistant Secretary of Labor for Mine Safety and Health.

In other words, expect MSHA to continue their recent uptick in enforcement and inspections across the mining industry.

MSHA Fines Down

There is also another surprising piece of information in the article that could potentially be overlooked. The amount of MSHA fines is trending down. MSHA doesn’t count contested fines in these statistics which leads to artificially low numbers (MSHA reported $62.3 million collected for 2015, a giant drop from the $95 million average in 2013 and 2014.) So as cases wrap up, the total for 2015 will increase. But even if we throw out the artificially low 2015 numbers, the trend is still there. Even with this drop, MSHA inspectors still have a few tricks they like to try.

The most MSHA fines collected in a year occurred in 2010 with $162.8 million dollars. But since 2012, the trend has been decidedly downward.

This is good news for an industry that has had a very hard year. Safer mines and fewer fines? That’s something the mining industry and MSHA can both get behind.

Let’s work towards continuing both trends in 2016.

It may not feel like it where you are, but spring is right around the corner. Many operations are about to begin the preparations to start up operations after a long winter. But as the season changes from winter to spring, there may be a hidden danger lurking on your site. High walls become much more unstable and prone to collapse during the spring and fall. High wall safety in surface mining is an essential topic for everyone on a mine this time of year.

What is happening during the fall and spring causing the large increase in high wall and stockpile failures? There are four main causes according to mine safety expert, Kim Redding.

Added Weight

As snow melts and spring rains begin, huge amounts of moisture are added to the ground. This adds weight to the material making the gravitational pull greater and much more likely for the material to go to angle of repose in spectacular fashion.

Changing Temperatures

With spring comes rapidly changing temperatures. Moisture in the ground may go from ice to water and back to ice throughout the course of one day. As our science teachers would remind us, water expands 10% when it changes phases into ice. This expanding and contracting within the ground (and your high wall or stock piles) loosens material.

Erosion

As ice melts, the run off cuts away at materials and can very quickly take a high wall or stock pile from stable to failure. Flowing water is considered a lubricant for dirt and rock. You can see a great example of this at the Grand Canyon.

Hydraulic Pressure

When the ground is wet, gravity pulls water down to the water table. Water can cut and erode material as it travels making the ground more unstable.

If you work in an area with high concentrations of clay you need to be extra cautious. Clay may be one of the most dangerous materials we deal with in mining. Why? Clay can make a high wall stand much longer than all other materials. When a high wall with clay fails, it doesn’t come down in small slides like hard rock. Clay fails catastrophically.

How can you stay safe?

A thorough work place exam every day, at every task is an absolute necessity. Not only is a workplace exam required by law, it also gives you an opportunity to see any changing conditions of the high wall. Specifically look for cracking, sloughing and other indications that the material may fail. MSHA poster “Inspect the top and bottom of the high wall for cracking, spalling, sloughage, loose ground, and large rocks that could be hazardous.

If you do see these signs, tell your supervisor immediately. Ensure loose material is scaled prior to performing work. To safely scale using the shovel, maintain the high wall height within the reach of the bucket.

Do not work under loose material for any reason.

Pay special attention when working in the corners of box cuts.

Do not dig into the toe of a high wall.

Increase the number of benches at each high wall to catch falling material.

Use CB radios to keep equipment operators informed of high wall conditions.

MSHA Rules To Live By – High Wall Safety In Surface Mining

There are also several applicable points from the MSHA Rules To Live By initiative.

• Never place yourself between a high-wall or stockpile and machinery. If a wall fails you will have a lesser chance of survival because if a machine is blocking your escape.
• Material only needs to come to the diaphragm for a person to suffocate.
• Always run machines facing the high wall. This allows you to watch for indications that the high wall is about to fail as you are completing your duties.
• Finally, never turn your back on the high wall. You need to be able to watch the wall at all times for increases in falling material that may indicate a failure.

Taking these simple steps and a little bit of time each shift can dramatically increase high wall safety in surface mining. Always be alert when you’re anywhere near a high wall or stock pile. It could be the difference between life and death.

Want more mine safety and compliance articles? Sign up for our free updates.

Get MSHA Updates and Tips

How To Avoid The 5 Most Cited MSHA Standards of 2015

Ever finish a Mine Safety and Health Administration (MSHA) inspection with your head spinning? You feel confident when the inspector arrives. Then the notepad comes out. Did the experience leave you with questions? Saying to yourself “How did we get hit for those MSHA standards? We run a good operation. How did we get so many fines?”

Obviously, MSHA citations are costly. But on top of the financial penalty, there are more subtle costs. Unlike money spent on training or workplace safety improvements that can prevent citations, MSHA fines aren’t tax deductible. MSHA citations also cost your company man-hours through additional inspections and time spent contesting the tickets. Finally, S&S citations affect your POV status, which can lead to even more fines if MSHA determines you have a Pattern of Violations.

Knowing where MSHA inspectors are looking, what they’re looking for and what they’re citing is valuable information. This information can give your team a path to go above and beyond your standard work safety and inspection procedures in targeted, high value areas.

That’s why I took a deep dive in the data provided on MSHA.gov. Let’s examine which Metal Non-Metal (M/NM) MSHA standards were cited most in 2015 and compare them to 2014. We can begin to see where MSHA is devoting their time and resources.

Spoiler: It doesn’t always match their many enforcement announcements. I know, you’re shocked.

The Most Cited M/NM MSHA Standards of 2015

MSHA citations at M/NM locations were essentially flat from 2014 to 2015. In 2014 there were 60,155 M/NM MSHA citations and 60,075 in 2015, a decrease of 0.01%. What were the top 5 most cited MSHA standards in 2015?

As you can see, Guarding and Damaged Electrical Conductors are far in front of the pack. That’s even more apparent when we look at the Top 15 standards in the next graph.

The 5 most cited MSHA Standards accounted for over 23% of all M/NM violations in 2015 and 22.8% in 2014. The 2 most cited MSHA standards accounted for 12% of all tickets written in 2015, more numbers 10 through 15 combined (11%). Focusing resources to improve your compliance is an efficient way to reduce your MSHA fine exposure.

How Do The Most Cited MSHA Standards of 2015 Compare to 2014?

There was only one change in the top 5 from 2014 to 2015. Part 50 injury reporting was replaced by house keeping in 2015. The number of Part 50 citations decreasing is an interesting development considering MSHA announced an increased emphasis on Part 50 reporting.

[infogram id=”msha_fines_2014_v_2015″ prefix=”yZk”]

How Can You Reduce Your Risk of Fines for These MSHA Standards? Let’s go through the standards one by one.

5. Back Up Alarms – MSHA standard 56.14132(a)

Manually operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.

MSHA regulations require back up alarms are functional and must “be heard above the surrounding noise.” That phrase is very subjective and open to interpretation by the inspector. What one inspector would let go another may not. This is where most citations for this MSHA standard are written.

If a back up alarm isn’t operational, by law you can have a spotter as a substitute and still use that vehicle. But the spotter must be with the vehicle the whole time it’s in use. Not a very practical option and certainly not an efficient use of resources.

Back up alarms can cause complacency. We hear them all day long. It can become just another noise in the background. For example in 2004, 14 people were killed in Washington State backing accidents. The back up alarm was fully functional in every incident. The situation was so serious the state legislature passed an emergency law requiring all trucks dumping on construction sites to have spotters.

“The CDL test advocates that over the road trucks should try to minimize backing up, because of blind spots, and potential to hit something or someone,” said former MSHA inspector and Mine Health & Safety consultant Kim Redding. “The best practice to prevent backing incidents and citations is to set up your whole operation so there’s little or no need to back up. Obviously this is impractical or prohibitively expensive for some.”

He continued, “If this option isn’t available, make the danger of backing top of mind at your company. Backing is one of the largest causes of injuries and damaged equipment. Everyone on your site should know and understand they shouldn’t back up unless absolutely necessary.”

4.     House Keeping – MSHA standard 56.20003(a)

Workplaces, passageways, storerooms, and service rooms shall be kept clean and orderly.

This is a very broad standard. You can get a ticket for a disorganized workshop, a messy vehicle cab, even a dirty microwave. Spilled materials are commonly cited under 56.20003(a). Any dust or silica build up can be seen as a trip hazard.

“When I was an MSHA inspector I saw poor housekeeping as a red flag,” said Kim Redding. “If you can’t do the simple things like cleaning up your work place, it’s more likely the big things won’t be done either.”

A clean work environment makes your company safer and more productive. Potential hazards easier for your company to spot and fix immediately when an area is clean and organized. As Jamie Ross of Mining Man puts it “don’t leave a trap for somebody else.” As you walk around your site, take a look for areas that could be tidied up.

Putting an emphasis on house keeping is a simple way to quickly make a site safer and more MSHA compliant. Employees don’t waste time looking for tools and equipment in an orderly shop.

3. Timely Correction of Defects Found in Pre-Operation Exam – MSHA standard 56.14100(b)

Defects on any equipment, machinery, and tools that affect workplace safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.

Complying with 56.14100(b) should be straightforward but MSHA has a curveball. Even if you fix a defect you can still get a citation. How? As top mining attorney Mike Heenan said in a great interview with Pit & Quarry, “too often, operators only write down what the problem was, so you have a list of problems without a list of solutions. Maybe the operator has fixed those problems listed, but they might not write that down. You have to finish up the story in writing.” In this situation, some inspectors will write a citation, others may not. It’s up to your operation to take away the opportunity for a ticket.

2. Improper or Damaged Electrical Conductors – MSHA standard 56.12004

Electrical conductors shall be of a sufficient size and current-carrying capacity to ensure that a rise in temperature resulting from normal operations will not damage the insulating materials. Electrical conductors exposed to mechanical damage shall be protected.

A thorough workplace exam is essential to compliance with 56.12004. Many conductors are exposed to weather, impact, vibration, abrasion, and heat. Inspection of electrical conductors must always be a part of workplace examinations. Schedule inspections on a regular basis for areas of your operation that are less frequently traveled.

If anyone discovers a violation it must be dealt with right away. Many times a health and safety hazard can become part of the workplace if it’s noticed but left uncorrected. It’s human nature. That’s how hazards don’t get fixed and become violations.

1.     Guarding Moving Machine Parts – MSHA standard 56.14107(a)

Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and take-up pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.

Guarding is by far the most cited MSHA standard and it’s been that way every year for the past decade. Don’t expect that to change in 2016, especially since the first fatality this year was a person killed when they got caught in a conveyor.

There is a clear history of inconsistent enforcement of MSHA regulations. Guarding is particularly hit or miss because the standard is extremely subjective. One inspector may cite you for an area that another inspector has approved for years.

In his interview with Pit & Quarry, Mike Heenan remarked, “It’s amazing to me in all these years that machine guards continue to be up there with other violations. It’s been my contention for a long time that MSHA should spend less time finding citations and instead finding more important things in Rules to Live By.”

“Many times I’ll tell operators their guarding isn’t MSHA compliant,” Kim explains “and they say ‘There’s no way, these are factory guards!’ Just because the guards came from the factory doesn’t mean they’re MSHA compliant. The factory builds on spec. If you don’t specify you want something guarded, they won’t do it. They’re a business that needs to keep their margins up just like you. On top of that, MSHA won’t cite the manufacturer for the violation. It’s your job as a mine operator to request MSHA compliant guarding.”

The best way to protect workers and reduce your risk of citations is to guard all moving machine parts. That includes bolt heads, key ways, couplers, everything. Box in every moving part, everything, so no one can touch, get near a moving part or in a restricted area. MSHA inspectors can and will contort their bodies to show there is a “possibility” someone could be injured.

In the most basic terms, the potential for an MSHA citation exists if an adult sized toddler could touch anything dangerous.

Key Takeaways – Health and Safety at Work

There is a definite trend in the most cited MSHA standards.  Nearly all of the rules are open to interpretation. Every MSHA inspector is different and you may have 2 inspectors interpret the rules in completely different ways.  You can either leave it to the luck of the draw or be proactive and engineer your operation so there’s no opportunity for an inspector to cite you. But you have to make that decision for yourself and your company.

Because they’re cited so much more often, you can get the most return on your investment by aggressively focusing your compliance efforts on the top 5 MSHA standards above.

Sign up for more MSHA tips and updates.

MSHA Safety Hazard Alert

Late yesterday afternoon Neal Merrifield distributed yet another MSHA Safety Hazard Alert. He begins:

Since 2008, six persons have died at metal and nonmetal mines in accidents involving large diameter plastic pipe.  Two delivery truck drivers were killed while their flatbed trucks were being unloaded at the mine.  In both cases, an unsecured section of pipe rolled from atop the truck’s load of pipe, fell and struck the driver as he stood nearby.  Two pipe crew supervisors, one a contractor, died while connecting sections of pipe using excavators and lifting straps to support and position the pipes.  One died when the pipe slipped out of the strap and struck him; the other was killed when the pipe sprung out of the positioning cradle and struck him.  A pipe foreman and a contract laborer were killed when they were struck or crushed by the pipe while assisting excavators re-position long sections of pipe using lifting straps.

Again, MSHA mentions their increased use of walk and talks, however this time without a veiled threat:

MSHA plans again this month to continue walk and talks at mine sites and enlist the assistance of mines, miners and mining industry groups in the effort to raise safety consciousness, stay safety-vigilant 24/7 and send miners home every day at the end of their shift.

That’s a sentiment we can all get behind. Though there were too many tragic deaths last year, 2015 was overall the safest year ever for the mining industry.

The alert also included some practical information.

MSHA standards require that materials not be stacked in a manner that creates a fall-of-material hazard, that taglines be attached to loads that may require guidance or steadying while suspended, and that hitches and that slings used to hoist materials be suitable for the particular material handled. 

Our Recommended Best Practices – Lifting and Handling Plastic Pipes

Here are some best practices for lifting large objects of any kind with a few specific to plastic pipes:

• Task train all persons prior to performing work.
• Secure loads on trucks, forklifts and cranes.
• Establish and discuss safe procedures before beginning work. Identify and control all hazards with the work to be performed along with the methods to properly protect persons.
• Ground personnel should be highly visible. Unauthorized persons should be kept clear of the area. Examine work areas during the shift for hazards that may be created as a result of the work being performed.
• Verify slings are in good condition and securely attached before beginning a lift.
• Stand clear of items of massive weights having the potential of becoming off-balanced while being loaded or unloaded.
• Use taglines of sufficient length to adequately protect persons.
• Keep pipes as straight as feasible to avoid any spring-like motion.
• Evaluate the stability of the material before unfastening a load. Pay particular attention to loads that may have shifted or become unstable during transport.
• To prevent pipes from falling when the load is unfastened, secondary supports (such as side stakes) may need to be installed before the load.
• Unload materials on level ground and in a safe, controlled manner.
• Monitor personnel routinely to determine that safe work procedures are followed.

For more detailed information you can consult this post from North American Pipe Co.

A number of MSHA safety hazard alerts have been issued to open 2016. Now is the perfect time to conduct a thorough examination of your operation and equipment. Ensure everything is MSHA compliant and in working order before operations ramp up in the spring.

Never miss an MSHA enforcement initiative again. Sign up to have MSHA and industry updates sent right to your inbox.