MSHA’s disregard for rulemaking authority makes its way to the Review Commission.

By Patrick W. Dennison

The Mine Act’s requirement for notice and comment rulemaking provides a check on the power of the Mine Safety and Health Administration (MSHA) to create and enforce rules and regulations. Without such requirements, MSHA would have carte blanche to create laws and regulate the mining industry without the involvement of the public. MSHA regulates principally by rules promulgated pursuant to Section 101 of the Mine Act, 30 U.S.C. § 811. MSHA also issues implementing regulations pursuant to Section 508 of the Act, 30 U.S.C. § 957. Both Sections 101 and 508 provide the public with notice of the proposed standard or regulation, and afford the public with the opportunity to comment before the proposed standard or regulation becomes final. This development and subsequent implementation of such standards involves rigorous scrutiny and debate by MSHA and the mining industry through notice and comment rulemaking.

Yet, despite these established principles, MSHA consistently disregards these requirements and, through the guise of “interpretation,” in essence creates new laws without subjecting them to the scrutiny of rulemaking. A recent case pending appeal before the Federal Mine Safety and Health Review Commission (FMSHRC) involving continuity and resistance testing pursuant to 30 C.F.R. § 56.12028 highlights MSHA’s disregard in this respect and exemplifies an intent to regulate the mining industry without adhering to important rulemaking procedures.

From at least 1977 until 1993, MSHA did not require continuity testing of extension cords in compliance with Section 56.12028. This understanding was made explicit in MSHA’s 1988 Program Policy Manual (PPM), which established that “the annual test does not apply to grounding conductors in trailing cables, powers cables, and cords which provide power to portable or mobile equipment” [(emphasis added) PPM at 51-52 (1988)]. In 1994, a Program Policy Letter (PPL) was issued which, for the first time, sought to mandate testing, as prescribed in Section 56.12028, of cables, power cords, and cords that supply power to tools and portable or mobile equipment. The PPL guidance was subsequently incorporated into the PPM in 1996 and remains the same today.

The legitimacy of MSHA’s new requirement pertaining to continuity and resistance testing was addressed in a 1999 decision by Administrative Law Judge Hodgdon [Hibbing Taconite Co., 21 FMSHRC 346 (ALJ Hodgdon March 1999)]. In Hibbing Taconite, ALJ Hodgdon vacated 67 citations for alleged violations of 30 C.F.R. § 56.12028 and determined that the standard did not apply to extension cords, power cords, and cables. ALJ Hodgdon further found that the Secretary had inappropriately tried to characterize the 1994 PPL as an interpretive rule to avoid the procedural requirements of the Mine Act.

ALJ Hodgdon determined that the 1994 PPL was not an interpretive rule because it had the effect of amending a prior legislative rule. ALJ Hodgdon determined that notice and comment rulemaking was required to effect the substantive change to the rule because Section 56.12028 “clearly applies only to grounding systems,” and not to extension cords (emphasis added). He then ordered the Secretary to proceed with notice and comment rulemaking should she seek to apply Section 56.12028 to extension cords, power cords, and cables. The Secretary did not seek review of the decision. Nor did the Secretary heed ALJ Hodgdon’s decision. In the 12 years since the decision in Hibbing Taconite, the Secretary has not engaged in rulemaking to formally establish its enforcement predilections as a new standard. MSHA neither withdrew nor amended the PPL/PPM and, instead, reissued a PPM applying the standard in the exact manner specifically prohibited by the ALJ and Mine Act.

This overt disregard led to a case currently pending before the Federal Mine Safety and Health Review Commission. Relying primarily on the same arguments she did in Hibbing Taconite, the Secretary again sought to apply continuity and resistance testing to cables and power cords [Tilden Mining 33 FMSHRC 876 (ALJ Paez April 18, 2011)]. This time, however, the ALJ upheld the violations of Section 56.12028. In so doing, he found that extension and power cords are included in “grounding systems” and viewed the Secretary’s amended application of Section 56.12028 as only an interpretive change that did not amend the rule. He further held that, because such application was only an interpretative change, the Secretary was not required to comply with notice and comment rulemaking. The ALJ relied upon the same 1994 PPL and the 1996/2003 PPM as justification for the change in interpretation, despite the aforementioned policies providing entirely new requirements, and the prior decision in Hibbing Taconite. Moreover, in an attempt to distinguish ALJ Hodgdon’s holding in Hibbing Taconite, the ALJ suggested that a 14-year passage of time (since MSHA sought to apply Section 56.12028 to extension and power cords) provided the operator with notice of the Secretary’s change in the application of Section 56.12028.

The fundamental issue with this decision, however, is that the inclusion of extension cords and power cables is not specified in the rule, and it is not logically included within the rule. It is a substantive change best identified by the drastic change between the 1988 PPL and the 1994 PPL. It imposes entirely new obligations on operators to annually test, at the expense of significant man-hours, countless trailing cables, power cables, and extension cords not previously subject to Section 56.12028. Such an amendment required the Secretary to proceed with notice and comment rulemaking [Hibbing Taconite, 21 FMSHRC at 355]. This is consistent with Commission case law even where such change is held to only be interpretive. In Keystone Coal Mining Corp. [16 FMSHRC 6 (Rev. Comm. January 1994)], the Commission held that, where MSHA had consistently enforced a regulatory standard for 20 years, a subsequent effort to change its enforcement consistent with a new interpretation of the standard constituted a substantive, not interpretive, change requiring notice and comment rulemaking.

The outcome of this decision may drastically affect the Secretary’s ability to enact substantive rules without involving the industry. A decision permitting MSHA to avoid its rulemaking responsibilities will provide MSHA with a freer hand to regulate by fiat AM

Patrick W. Dennison is an associate in Jackson Kelly PLLC’s Pittsburgh office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 412-434-8815 or pwdennison@jacksonkelly.com.

By Therese Dunphy

If the industry were giving government entities a grade card this fall, it would be an interestingly mixed report. Consider important issues facing our government officials and determine how you would rate them.

In terms of transportation funding, Congress has been unable to do more than pass stop-gap measures, despite urging from President Obama for long-term bill. While Republicans are finally beginning to admit that additional funding is necessary, it appears that this project is going to be turned in late — two and a half years late. (Sounds like a CBS sitcom.) Grade: C. Sadly, late work seems to be the average.

The American Jobs Act could help fund construction projects as an interim measure, but it remains to be seen if all the folks involved can demonstrate qualities such as character and an ability to work together to pass this seemingly bi-partisan measure. These students seem to be more interested in fighting between players than winning the game. (See AggBeat, page 4.) Grade: Incomplete.

The Mine Safety and Health Administration (MSHA) has circumvented public notice and comment with regards to requirements that apply to continuity and resistance testing of cables and power cords. The agency is supposed to develop regulations using sections 101 and 508 of the Mine Act, which require public notice and allow for public comment before a final rule is developed. But MSHA may have found a nifty loophole as it uses Program Policy Letters to change regulatory requirements, then incorporates those changes into subsequent Program Policy Manuals. (See Rock Law, page 36). Grade: D.

The Federal Mine Safety and Health Review Commission has reviewed MSHA’s actions on this matter twice, with differing opinions. In 1994, Administrative Law Judge Hodgdon made the right call and ordered the Secretary to provide notice and comment for rulemaking, but she opted not to do so. Earlier this year, Administrative Law Judge Paez described the change as an interpretive matter and suggested that the time that passed between the two cases provided the operator with notice of the intended rule change. This is an alarming precedent that flouts the intent of the Mine Act. Grade: F.

In today’s business environment, those who don’t meet — or exceed — their performance expectations often find themselves unemployed. As November elections near, consider the performance of your government officials. If they aren’t doing the job we hired them to do, give them a failing grade card and their walking papers.

3 things I learned from this issue:

1. Blasting can be treated as the primary crushing with mechanical crushing serving as a conditioner, page 21.

2. On average, higher levels of green house gases are released by transporting aggregates than producing them, page 26.

3. If a hydraulic hammer’s hose jerks violently, it may indicate low nitrogen pressure, page 30.

Adele Abrams

by Adele L. Abrams, president of the Law Office of Adele L. Abrams P.C.

One of the more frustrating legal issues confronting those in the mining industry has been the application of the Mine Act’s “strict liability” framework to situations involving contractors and subcontractors performing work or rendering services at a mine site. After the 2006 U.S. Court of Appeals decision in Twentymile Coal, it was established that the Mine Safety and Health Administration (MSHA) has “unreviewable discretion” to cite the production-operator, a contractor, or both, for a contractor’s infractions…regardless of whether the production-operator had any involvement with, or knowledge of, the violative condition or behavior.

A new ruling by the Federal Mine Safety & Health Review Commission (FMSHRC) adds another layer to the analysis: that of contractor and subcontractor liability for regulatory violations. On July 25, 2011, the FMSHRC ruled (with one dissent) in Ames Construction Inc. to affirm citations issued to Ames (a contractor) for unsafe activities by its subcontractor (Bob Orton Trucking) while Ames was directing work in an area of a metal/non-metal mine site. The ruling served to affirm the trial judge’s verdict upholding the citation in result, although for different analytical reasons.

The case involves a fatality that occurred at the Kennecott company’s tailings facility in Utah. Ames was hired to construct a tailings dam, pipe, and roadways at the MSHA-regulated facility. As the “general contractor” for the construction area, Ames regularly received deliveries of materials for the project, including piles, which in this instance were delivered to the mine by the Orton company’s driver, William Kay. When Kay arrived at the mine, he stopped in Ames’ on-site office, and it was customary for Ames employees to check with such truck drivers and to ensure they had hazard training cards issued by Kennecott. Kay had such training but, MSHA found, the hazard training provided did not address unloading of materials from his truck.

Normally, Ames’ employees would escort any outside drivers while on the property. One of Ames’ crew notice that the load of pipe on Kay’s truck lacked chocks (to prevent pipes from rolling) and that the dunnage (to maintain load stability) was smaller than usual.

Apparently nothing was said about this to the driver, however, and Kay was escorted to the unloading area by three members of the Ames’ crew. Kay was told “stay right here” while two of them left to retrieve a forklift, leaving one Ames’ employee behind with Kay. However, that Ames’ employee’s attention was elsewhere when he heard a “crack” and saw pipes rolling off the truck trailer. Kay had removed the straps from the load and received fatal crushing injuries from the pipes.

MSHA issued a citation to Ames, for an alleged Significant and Substantial (S&S) violation of 30 CFR 56.9201, with a $13,268 penalty. Bob Orton Trucking also received the same citation, with a $35,000 penalty, later settled for $5,000 in settlement. The cited standard requires that “equipment and supplies shall be … unloaded in a manner which does not create a hazard to persons from falling or shifting equipment or supplies.”

Ames pursued its contest before ALJ Margaret Miller, who upheld the citation finding that Ames was strictly liable for the Orton employee’s violation. The ALJ held that the unloading process began when the truck was parked at the unloading area and that a member of Ames’ crew was present for the purpose of unloading. She also ruled that the truck driver was transporting the pipe for the use of Ames, on property controlled by Ames, and that it was Ames’ responsibility to unload the pipes correctly.

However, the ALJ erroneously assumed that Orton was a subcontractor of Ames and relied on that theory to uphold the citation, under a decision in Mingo Logan Coal (19 FMSHRC 246, 1997), in which the Commission held: “the Act’s scheme of liability provides that an operator, although faultless itself, may be held liable for violative acts of its employees, agents, and contractors.”

Ames appealed to the full FMSHRC, arguing that the judge’s factual error in determining that Orton was its subcontractor was a basis for reversal and also contending that its employees could not have prevented the fatal accident. Ames declared that, in the absence of a contractual relationship with Orton, it was not liable for the violation and that it was simply a “third party bystander” outside the strict liability scheme. Ames noted that, in urging for Ames’ liability for the acts of an unrelated third party, MSHA was unjustifiably expanding the potential for liability to an unconscionable extent.

The Secretary of Labor responded that while there was no record evidence to support a finding that Orton was Ames’ subcontractor, Ames should still be held strictly liable because it controlled the pipe unloading area and supervised the unloading of the pipes. A contractor is considered to be a “mine operator” under the Mine Act’s definitions, and MSHA argued that an operator is strictly liable for violations that take place under its control or supervision. At trial before ALJ Miller, MSHA had presented both the strict liability theory and also the vicarious liability (responsibility for contractors) theory in its prosecution of Ames.

The Commission held that the ALJ’s mistake about the relationship between Ames and Orton did not control the outcome of the appeal, because her findings about Ames’ supervision of the unloading process still stood unchallenged. It found that Ames was an “operator” of the mine, under the definition in Section 3(d) of the Act, and that this extended to a construction company preparing a tailings dam.

Since a violation of a mandatory standard occurred at a mine at which Ames was an “operator,” it could be found strictly liable under Section 110(a). Strict liability means “liability without fault” but it does not mean liability for things outside one’s control or supervision. The absence of a contract between Ames and Orton was irrelevant if Ames was supervising the process of unloading pipes. It was Ames’ responsibility under its contract with Kennecott to oversee unloading of pipes.

Ames conceded at trial that Orton’s drivers were to follow the instructions of the Ames’ supervisor of the unloading process. There was also a safety and health “action plan” which was a site-specific project document detailing the safety requirements imposed on Ames by Kennecott. This included giving Ames’ supervisors and foremen the power to stop work that would place employees, equipment, or property in immediate danger, and to ensure that all unsafe conditions are corrected. This was found by the FMSHRC to imply supervisory authority rested with Ames. They also considered Ames’ Job Safety Analysis for unloading activities as showing that they were familiar with the hazards and responsible for unloading the pipes. Here, no attempt was made to prevent Kay from loosening the straps or otherwise to protect him from encountering hazards.

In short, Ames was an operator of the mine under the language of the Mine Act and was strictly liable for activities of third parties working within the area it controlled for any actions or conditions that violated MSHA’s standards. This decision should be a warning to contractors who assume control or all or part of a mine site for a limited period, as they will be responsible for ensuring compliance with MSHA regulations by all others who might perform any activities within that area.

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional, and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies

The coal mines were issued 154 citations, 12 orders, and three safeguards, while the metal/non-metal operations were issued 21 citations and four orders.

These inspections, which began in force in April 2010 following the explosion at Upper Big Branch Mine, involve mines that are said to merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns, including high numbers of violations or closure orders; indications of operator tactics, such as advance notification of inspections that prevent inspectors from observing violations; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries or illnesses; fatalities; and adverse conditions such as increased methane liberation, faulty roof conditions, and inadequate ventilation.

“The impact inspection program has been an invaluable tool for identifying and addressing mines with serious compliance issues,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “While we are still finding mines with chronic problems, we are cautiously optimistic that the majority of operators are getting the message.”

As an example from last month’s impact inspections, MSHA conducted an impact inspection June 13-16 at Lehigh Southwest Cement Co.’s Lehigh Permanente Cement Co. This is a large cement facility located in Santa Clara County, Calif., employing about 106 miners. MSHA issued 21 citations and four unwarrantable failure orders during the inspection.

Inspectors noted a number of hazardous conditions, including tripping hazards in workplaces, passageways, storerooms and service rooms; safety defects not repaired in a timely manner, including not securing inspection doors on a kiln and sharp metal roofing hanging down in a travelway; miners working at elevation without proper scaffolding or working platforms; warning signs not readily visible to prohibit smoking and open flames where a fire or explosion hazard exist, and not securing guards while operating machinery.

This is the third impact inspection at this mine. Previous inspections were conducted in January and April 2011.

As a second example from last month, an inspection party arrived during the evening shift on June 3 at S&H Mining Inc.’s S and H Mining Inc. mine in Anderson County, Tenn. Inspectors immediately captured the mine phones on the surface to prevent advance notification. They issued 32 citations and orders, nearly half of them designated as significant and substantial. This is the second impact inspection conducted at this mine; the first was conducted in March 2011.

MSHA issued five 104(d)(1) closure orders and one 104(d)(1) citation for unwarrantable failure of the operator to conduct and record on-shift inspections of its belt lines. Timely on-shift examinations are necessary for the protection of miners from hazards and conditions that may develop during the shift and cause a mine fire.

One 104(d)(1) citation was issued for unwarrantable failure of the mine operator to install a male disconnecting device for a battery charger. One 104(d)(1) order was issued for unwarrantable failure of the mine operator to maintain the continuous mining machine in permissible condition. A 104(b) closure order was issued for failure to abate a previously cited violation for not being able to calibrate the methane monitor on the continuous mining machine. These conditions, if left unchecked and in concert with other conditions, could potentially cause a mine fire, explosion or electrocution of miners.

Inspectors issued other citations for inadequate roof support, electrical violations, and accumulation of combustible materials. Additional violations included failing to record that a search was conducted for smoking articles, a non-permissible roof-bolting machine, an inadequate fire suppression system on a surface belt drive, and an inoperative methane monitor on the continuous mining machine.

Since April 2010, MSHA has conducted 292 impact inspections, which have resulted in 5,207 citations, 490 orders and 19 safeguards.

Click here for a spreadsheet of the results.

In today’s enforcement-first environment, no company is immune from imminent danger orders.

By Jason P. Webb

A little-noticed provision of recently enacted legislation is causing headaches for mine operators without providing meaningful benefit to the public. On July 21, 2010, the Dodd-Frank Wall Street and Consumer Protection Act (Dodd-Frank Act) was enacted in an effort to expand federal oversight of financial markets. Section 1503 of the Act contained new reporting requirements regarding mine safety, including disclosing the receipt of an imminent danger order issued pursuant to Section 107(a) of the Federal Mine Safety and Health Act of 1977 (Mine Act). In addition to imminent danger orders, Dodd-Frank requires companies to report their identification by the Mine Safety and Health Administration (MSHA) as candidates for or placement on a pattern of violations. This provision affects all publicly traded companies that operate or have subsidiaries that operate mines and requires disclosures within four days of their occurrence.

Public companies receiving such an order are now required to complete and file a Form 8-K “current report” with the Securities and Exchange Commission (SEC). The SEC characterizes Form 8-K current reports as necessary “to announce major events that shareholders should know about.” Other information required to be disclosed includes a company’s entry into bankruptcy or receivership, releases of important non-public financial information regarding the results of operations, as well as material modifications to the rights of security-holders.

Section 107(a) of the Mine Act authorizes MSHA inspectors to issue orders requiring the immediate withdrawal of all miners from an area where the inspector determines an imminent danger exists. Defined as a condition or practice which could reasonably be expected to cause death or serious physical harm before they can be abated, Congress viewed imminent danger orders as identifying important breaches of safety protocol that may be of interest to shareholders and potential investors. However, and unlike accidents which operators are required to report to MSHA under 30 CFR § 50.10 and are exhaustively defined at 30 CFR § 50.2(h), there is no similar provision defining or offering binding criteria to aid inspectors in their determination of what constitutes an imminent danger.

Given this discretion, it should come as little surprise that there are different perceptions among inspectors as to what sort of event constitutes an imminent danger to the health and safety of miners. For instance, on May 5, 2011, one underground mining company issued a Form 8-K to disclose to shareholders that it had received an imminent danger order. In that instance, an employee of a landscaping contractor used by a subsidiary of the company was observed using a weed-eater without glasses. The inspector indicated that “actual grass and weed clippings were observed to be physically present on the employee’s face in close proximity to his eyes.” Similarly, a western surface mining company received an imminent danger order after two different coyotes had been spotted in the vicinity of the mine and its surface facilities. Aggregates producers are not immune from such orders. After all, there are rattlesnakes in Texas and yard clippings in North Carolina. In the final analysis, no company is immune from such orders in today’s enforcement-first environment.

While these filings are highlighted because they are humorous in their liberal construction of what constitutes an “imminent danger” to miners’ health or safety, the concern is that the mere issuance of an imminent danger order could unfairly prejudice the company in the eyes of investors and shareholders. Given the importance of other information that is required to be disclosed via Form 8-K and the presence of wildlife withstanding, investors might attach undeserved weight to other 107(a) orders that, in actuality, relate to poor individual decision making or natural events and not poor safety cultures. Such orders may also simply be invalid.

Fortunately, Section 107(e) permits operators to contest imminent danger orders within 30 days of their issuance. Because the order has no penalty attached, this is the only time it can be contested. If subsequently vacated, it would be appropriate for an operator to issue a subsequent Form 8-K to provide notice of its vindication.

The other related concern is that Congress’ selection of imminent danger orders as a proxy for mines’ safety cultures was not a good one. As the examples previously discussed reveal, naturally occurring phenomena are required to be reported, but have no bearing on a company’s safety culture. A review of other imminent danger orders likewise reflects isolated instances of poor decision making on the occurrence of natural and short-term events rather than systemic safety problems. If the purpose of Form 8-K disclosures is, as the SEC provides, to inform shareholders as to major events affecting safety and health, then one would think that Congress could have identified another more appropriate standard on which to rely. Of course, mine operators don’t make the laws; rather, like the rest of us, they just have to follow the rules whether they serve the intended purpose or not.

Jason P. Webb is an associate in the Pittsburgh office of Jackson Kelly PLLC. Previously, he clerked at the Office of Administrative Law Judges, U.S. Department of Labor. He can be reached at 412-434-8055 or jpwebb@jacksonkelly.com.

The briefing, to begin at 10 a.m. EDT, will coincide with the one-year anniversary of the start of the agency’s underground investigation at the Upper Big Branch Mine and will be held at the National Mine Health and Safety Academy in Beaver, W.Va. A Q-and-A session for the public will follow.

MSHA will provide information about the physical evidence gathered in its investigation, as well as summaries of other evidence obtained by investigators.

However, the underground investigation, interviews, physical testing and analysis of evidence are still ongoing. As has been the practice throughout MSHA’s investigation, some information will remain confidential in light of a concurrent U.S. Department of Justice criminal investigation, which is also ongoing, and requests by federal prosecutors to MSHA to limit the public release of evidence.

President Obama has instructed both agencies to conduct thorough investigations into the tragedy, and to ensure that those responsible are brought to justice.

“Though our investigation is ongoing, we have been holding briefings throughout the process to keep the public informed and share what we can,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “MSHA also has pledged to cooperate with the U.S. attorney and the FBI as they bring to justice those who may have broken the law. This public briefing will be a thorough look at what we know so far, while keeping in mind the need to support other ongoing investigations.”

The briefing, to begin at 10 a.m. EDT, will coincide with the one-year anniversary of the start of the agency’s underground investigation at the Upper Big Branch Mine and will be held at the National Mine Health and Safety Academy in Beaver, W.Va. A Q-and-A session for the public will follow.

MSHA will provide information about the physical evidence gathered in its investigation, as well as summaries of other evidence obtained by investigators.

However, the underground investigation, interviews, physical testing and analysis of evidence are still ongoing. As has been the practice throughout MSHA’s investigation, some information will remain confidential in light of a concurrent U.S. Department of Justice criminal investigation, which is also ongoing, and requests by federal prosecutors to MSHA to limit the public release of evidence.

President Obama has instructed both agencies to conduct thorough investigations into the tragedy, and to ensure that those responsible are brought to justice.

“Though our investigation is ongoing, we have been holding briefings throughout the process to keep the public informed and share what we can,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “MSHA also has pledged to cooperate with the U.S. attorney and the FBI as they bring to justice those who may have broken the law. This public briefing will be a thorough look at what we know so far, while keeping in mind the need to support other ongoing investigations.”

Making safety part of your lifestyle can go a long way toward protecting yourself on the job.

by Tina Grady-Barbaccia, News/Digital Editor

When it comes to personal protective equipment (PPE), safety should never be a priority. It should be a value, says Jeff Lambert, Knife River Corp. North Central Region safety chair. “Priorities change, values do not,” he says.

Proper use of personal protective equipment shows that the miner has placed safety as a personal value, not just a priority.

 For example, if production needs to be ramped up, that becomes the priority. If safety is only a priority, it may be pushed back, Lambert points out. “But if safety is a value, then that drives everything that you do,” he says. “And if safety is a value, you’ll think about it not only at work, but at home and when you’re with your family. It becomes your lifestyle.”

In 2007, MSHA reports that 8 metal/non-metal miners performing welding work experienced burns to their foot or ankle. Proper PPE could have prevented these injuries.

Using PPE then becomes not just a rule that must be followed, but something that is engrained. Wearing a hard hat — gate-to-gate — to prevent head injuries may seem like common sense, but “common sense is a myth,” Lambert says. “I hear that all the time. It’s common sense. But it’s not just common sense. What might occur to one person may not occur to someone else. That’s why training and education are so critical.”

An incident at one of the MDU Resources Group, Inc. companies (parent company of Knife River Corp.) bears this out. Lambert remembers the story of an employee who drove off in his pickup truck and threw a rock across the parking lot, striking an employee walking across the parking lot in the head. The employee, thankfully, was wearing a hard hat, Lambert says.

“Some people say, ‘I don’t need a hard hat if I am in the yard at a ready-mix plant. It’s a wide-open area,” he says. But the pickup truck incident shows the flawed thinking of this way. “Rocks fly off of conveyor belts all the time,” Lambert says. “You always need to keep yourself safe.”

Lambert also recalls another incident involving the use of PPE and how it may have helped avoid serious injury. A supervisor standing on the platform around the jaw crusher looked down into the jaw when a rock shot up and struck him on the eye. If he hadn’t been wearing his protective eyewear, a serious injury could have occurred. According to safety tips provided by the Mine Safety and Health Administration (MSHA), eye protection should be kept on your face at all times. They also should have side shields.

Fall protection and fall arrest are also a very important part of PPE. “A lot of people confuse the two,” Lambert points out. To clarify, he explains that a fall arrest system catches a person if he or she falls, but a fall restraint system actually protects a person from falling or reaching a fall point. “If your fall restraint system is not a standard guardrail, then you still want to use a harness and lanyard that will keep you from falling off an elevated working surface.

But PPE isn’t enough. Hazard awareness and training are critical, Lambert says. Although PPE helps protect workers, it doesn’t eliminate the hazards, and the equipment can fail. That is why operators should always look for ways to engineer out the hazards first. To reduce the chance of PPE failure, employees need to be trained on how to properly use equipment, keep it clean and in good condition, and make sure it fits properly. Most importantly, this all needs to be second nature — more than mere compliance.

“Compliance comes with slogans and phrases,” Lambert says, “but a value is part of something you just do without thinking about it. It’s part of you.”

A Cheat Sheet to Safety with Proper Personal Protective Equipment

The Mine Safety and Health Administration (MSHA) and the Occupational Health and Safety Administration (OSHA) have put together best practices for safety and personal protective equipment (PPE). Here’s an at-a-glance look at the agencies’ tips:

1. Eye Protection

Safety glasses should be worn in all work areas at all times. They should always be kept on your face.

Use appropriate goggles or face shields when grinding, chipping, welding, cutting, etc.

Safety glasses should have side shields.

Safety glasses that are manufactured according to ANSI Z87 standards or other suitable eye protection should be worn.

Safety glasses that double as sunglasses can help reduce glare on sunny days.

2. Protective Footwear

Keep soles free from grease and oil.

Footwear should be ankle high or higher.

Wear rubber boots in extremely wet conditions.

3. Safety Lines

Safety harnesses must be worn and attached to safety lines wherever a fall hazard exists.

Safety lines and harnesses must be kept clean and in good repair.

Safety lines must be securely attached.

Safety harnesses have to be adjusted to the individual.

Know how to wear your harness properly.

4. Hearing Protection

Wear earplugs to protect against high levels of noise.

Disposable earplugs should only be used once.

The Small Mine Office developed a series of weekly ToolBox talks that can be used by small mine operators and others to hold safety and health discussions for employees at their mining operations. These ToolBox talks were developed in consultation with members of the mining community.  To get the free app, enter http://gettag.mobi into your browser.

PRIDE and a clearly written equipment maintenance program will keep employees safe.

by Tina Grady-Barbaccia, News/Digital Editor

When it comes to safety with equipment maintenance, it’s all about PRIDE: Personal Responsibility in Delivering Excellence.

PRIDE says Jeff Lambert, safety chairman of Knife River Corp.’s North Central Region, is what drives his company’s safety program and what should drive the safety programs at every aggregates operation. In addition, the safety program must contain policies and procedures that address the hazards of the operation, such as equipment maintenance safety, Lambert says.

Lock out–tag out is a critical component in equipment maintenance safety. “Failure to follow lock out–tag out procedures can result in the serious injury or even death of a miner, it’s that critical,” Lambert says. (For “Lock Out–Tag Out” best practices, see page 34.) But the program must be more than just written rules. It must be understood, be consistent, and be administered by a competent person. Who qualifies as a competent person?

“It’s someone who is familiar with procedures, knows and understands the hazards associated with it, and has the authority to take action,” Lambert says. “If you can have the same people on a regular basis, this helps. It is critical that anyone new to the crew or unfamiliar with the procedures be properly trained before performing work.” However, even regular, competent employees that routinely inspect and perform maintenance can become complacent. A problem or issue may never have occurred, but there is always that chance, Lambert points out.

After analyzing fatality data for the 2000-2008 timeframe, MSHA identified 12 priority standards as leading causes of fatalities within the metal/non-metal sector. Standard §56.14105 (Procedures during repairs or maintenance) is one of those 12 priority standards.

To ensure that nothing is overlooked when it comes to safety with equipment maintenance, job hazard analysis (JHA) procedures need to be established. “Written procedures for all maintenance performed are the key to accomplishing it safely,” Lambert notes. “Everyone knows how to cut a belt, or do they? Do they know how to properly replace screens or shut down a 440-amp panel?”

A JHA for equipment maintenance addresses potential hazards and eliminates shortcuts. The shortcuts may seem benign, but could cause serious injury, Lambert says. “Mechanics say that they can lift a cutting blade by themselves,” he says. “To that I say, ‘Really?’ The blades weigh 200 to 250 pounds, so we have a JHA for it. It’s pretty simple, but they are recorded as procedures.”

How can the procedures be enforced? “Through PRIDE,” Lambert says. “Top management must be visibly committed to safety, and middle management must be actively involved. They need to be out in the field and not just assuming the procedures are followed. Additionally, supervisors must be performance focused, and frontline, hourly employees must be actively participating in these safety efforts.”

For example, backup alarms, horns, wipers, brakes, and seatbelts must be operable on mobile equipment. A fire extinguisher should be on each piece of equipment and be checked to ensure it is operational.

Lambert also cautions equipment maintenance inspectors against the dangers of momentum when working on equipment. Nearly three years ago in a crushing operation, a cone crusher became plugged up. When an employee attempted to rod out the jam and couldn’t break it loose, the employee laid down on the belt underneath the crusher, Lambert remembers. “[The employee] took about a 2-foot-long piece of rod and attempted to break the material loose from inside,” Lambert recalls. The employee hit it once and the material broke loose, burying him. His personal protective equipment, or PPE, which should always be worn during equipment maintenance, may have saved his life, Lambert says.

“When the material came down, over his hard hat, he put his head down so there was enough room to breathe,” Lambert remembers. The point is, he says, “is to be aware of this momentum when performing maintenance. He could have easily been killed — suffocated. Never put yourself at risk.”

The Small Mine Office developed a series of weekly ToolBox talks that can be used by small mine operators and others to hold safety and health discussions for employees at their mining operations. These ToolBox talks were developed in consultation with members of the mining community. To get the free app, enter http://www.gettag.mobi into your browser.

Under proposed guidelines, MSHA would always be right (at least when assessing POV)

by R. Brian Hendrix

On Feb. 2, 2011, the Mine Safety and Health Administration (MSHA) published its new proposal to change the current Pattern of Violations regulations (see 76 Fed. Reg. 5719-5729). A few days later, The New York Times, in an editorial titled Regulating Big Coal’s Bad Actors, characterized the proposed rule as a “stopgap step” that would nevertheless empower MSHA “to shut down a mine with a record of chronic safety violations — instead of waiting years for litigation to play out.”

You may be asking yourself whether the Times editorial board has ever bothered to actually read the Federal Mine Safety and Health Act, particularly Sections 104, 107, or 108. The Act provides every MSHA inspector with the authority to immediately shut down a mine or an area of a mine with the mere stroke of pen based on nothing more than his or her opinion about conditions in the mine or an area of the mine. MSHA and its inspectors have possessed tremendously broad enforcement authority for well over 30 years now, authority that is exercised quite regularly.

Criticizing the Times editorial board is as easy as it is worthwhile, but, sadly, that is not the purpose of this article. Rather, the purpose is to alert you to MSHA’s proposed POV rule and give you an overview of the significant differences between the proposed rule and the existing rule. To be sure, the proposed POV rule marks a major departure from the current rule. It operates primarily on the assumption that MSHA is always right, and it is a poorly veiled attempt by MSHA to force operators to develop comprehensive “safety and health management programs.” Before explaining how the proposed rule would work, it is important to understand how the existing Pattern of Violation rule works.

Existing POV rules

Section 104(e) of the Mine Act authorizes MSHA to identify mines that exhibit a “pattern of violations.” When it identifies a mine that exhibits such a pattern, Section 104(e) authorizes MSHA to notify the operator and to issue an order withdrawing all persons from the affected area of the mine for every Significant and Substantial (S&S) violation found at the mine within 90 days after the issuance of a POV notice. MSHA promulgated the current POV rule — 30 C.F.R. Part 104 — 20 years ago. Under the current POV rule, MSHA identifies mines that exhibit a potential pattern of violations (PPOV) using a computer program based on MSHA’s screening criteria and scoring model. MSHA primarily considers final S&S violations when making this determination, i.e., uncontested S&S violations or violations that have already made their way through litigation. Once MSHA decides that a mine has exhibited a PPOV, it notifies the mine operator with a PPOV letter that, unless it improves its compliance record within 90 days, MSHA will issue an actual POV notice under Section 104(e).

MSHA admits that, of the 68 mines that received PPOV letters between June 2007 and September 2009, “94 percent reduced the rate of S&S citations and orders by at least 30 percent, and 77 percent reduced the rate of S&S citations and orders to levels at or below the national average for similar mines.” Almost all of the mine operators who have received PPOV letters got the message and, in short order, significantly improved their compliance records. Why? As you might imagine, it would be extremely difficult to operate any mine as a viable, going concern once it receives a POV notice. Until recently, MSHA had never had reason to issue a single POV notice under Section 104(e). That will, however, change if MSHA finalizes the proposed POV rule. MSHA itself estimates that 10 operators a year will receive POV notices under the new rule.

Expanded authority

Why has MSHA decided to completely overhaul its existing POV rule? According to MSHA, it’s proposing a new rule to “simplify the existing POV criteria, improve consistency, … and more adequately achieve the statutory intent.” To “simplify” the existing criteria, MSHA plans to post its POV criteria on-line (although MSHA has not released its POV criteria), along with the violation history of each mine, in order “to allow mine operators to monitor their compliance record against the proposed POV criteria.” This would, according to MSHA, “allow mine operators to monitor their compliance record against the proposed POV criteria.”

What’s the catch? MSHA proposes to “eliminate all references to initial screening criteria.” In other words, MSHA will no longer send out PPOV letters to an operator and give the operator a chance to improve its compliance record before issuing a POV notice. Instead, MSHA will expect operators to monitor their own violation history and POV status.

If an operator thinks that it might be exhibiting a pattern of violations, MSHA will expect the operator to develop and implement a plan to improve its compliance record and show significant improvement in its record. To avoid a POV notice, MSHA will expect an operator nearing a pattern to submit a “written safety and health management plan to the district manager for approval.” Effective implementation of an MSHA-approved plan would be considered a “mitigating circumstance.”

MSHA expects that, under the proposed rule, 50 operators a year will be forced to submit a “safety and health management plan” for approval. While MSHA claims that it will take no more than five minutes a month for an operator to monitor its compliance record and pattern status, MSHA expects that development and implementation of an acceptable “safety and health management plan” will require 160 hours of a supervisor’s time and 240 hours of miners’ time for an average total cost of $22,100 per plan per mine.

If you have any experience with MSHA’s plan approval process (e.g. roof control, ventilation), you know how much authority and discretion a district manager already possesses when evaluating such plans. Under the proposed POV rule, there would be almost no limit to what a district manager can require of an operator forced to submit a “safety and health management plan,” and the operator would have virtually no opportunity to challenge the district manager’s decisions regarding the plan.

No verification of violation

That’s bad, but this is worse: MSHA intends to consider citations and orders as they are written, not final citations and orders. A citation or order represents nothing more than a single inspector’s belief that a violation exists, his estimation of its gravity, and his opinion as to the operator’s negligence. Citations and orders contain mere allegations, which an operator has both the Constitutional and statutory right to challenge in court. If an operator challenges a citation or order, MSHA must prove the inspector’s allegations with substantial evidence.

Under the current POV rule, MSHA only considers citations and orders that are final, i.e. allegations that the operator has either accepted as true (if the operator does not contest) or allegations that MSHA established with substantial evidence. Under the proposed rule, allegations in a citation or order are treated as facts, and an inspector’s opinion is all that matters. Under the proposed POV rule, MSHA will always be right. You will be guilty, regardless of whether you can prove your innocence.

There’s much more in MSHA’s proposed POV rule to dislike, more than can be covered here. For example, under the proposed POV rule, MSHA will consider non-S&S violations, such as recordkeeping violations, when determining if an operator has exhibited a “pattern.” MSHA will also consider non-S&S orders, e.g. Section 103(k) orders. Instead of reviewing every mine’s compliance history annually, it will review it twice a year. Suffice it to say, it is worth the time to read the proposed rule for a more complete sense of where the industry may be heading.

What can be done about the proposed rule? The proposed rule is not final, and mine operators may submit comments on the proposal to MSHA. MSHA seems very committed to finalizing the proposed rule as is, without significant changes, but operators can and should comment on the proposal. It is certainly possible that the final rule will also be challenged in court, though it is difficult (but certainly not impossible) for an operator to prevail in any rulemaking challenge. Thus, it may make sense to ask Congress to intervene.

If MSHA insists on a new POV rule, it should actually be aimed at recalcitrant mine operators who have not responded to other enforcement actions and are actually endangering the health and safety of miners. Of course, MSHA could achieve the same goal simply by enforcing its current POV rule or by using all of the other enforcement tools Congress provided to MSHA more than 30 years ago.

R. Brian Hendrix is a partner at Patton Boggs LLP’s Washington, D.C., office. He may be reached via phone at 202-457-6543 or via e-mail at bhendrix@pattonboggs.com.