March 1, 2008
Make sure you know the training requirements for non-employee individuals on your site.
by Marcy M. Fulton
Mark Twain once said “training is everything…cauliflower is nothing but cabbage with a college education.” For those of us operating in a Mine Safety and Health Administration (MSHA) world, determining what training an individual needs can be difficult. For your employees, who are clearly “miners” under the Mine Act, training requirements are set forth in the MSHA regulations, and it is a relatively straightforward prospect to determine whether or not that individual has been appropriately trained. The determination is not as easy for individuals who may come onto your site, such as maintenance or service workers, and an incorrect determination can mean enforcement troubles for you as an operator.
The training requirements for miners at operations engaged in shell dredging, sand, gravel, surface stone, surface clay, colloidal phosphate, and surface limestone mines are set forth in 30 C.F.R. Part 46. Determining what degree of training is required for non-employees on mine property pursuant to 30 C.F.R. Part 46 depends, in part, upon the frequency and duration of an individual’s visits to the site.
Under Part 46, new miners must be provided with new miner training and site-specific hazard training, while individuals excluded from the definition of “miner” must only be given site-specific hazard training. 30 C.F.R. § 46(g) defines a miner as “[a]ny person…who works at a mine and who is engaged in mining operations.” The definition specifically includes “independent contractors and employees of independent contractors who are engaged in mining operations.”
“[S]cientific workers; delivery workers; customers (including commercial over-the-road truck drivers); vendors; or visitors” are excluded from this definition. “[M]aintenance or service workers who do not work at a mine site for frequent or extended periods” are also excluded. Inherent in the exclusion is the concept that maintenance or service workers who do work at a site for frequent or extended periods are considered miners for purposes of Part 46.
But, what is “frequent and extended” in MSHA’s eyes? MSHA views extended exposure as “exposure to hazards at mining operations of more than five consecutive work days.” That seems clear enough, but MSHA views frequent as “a pattern of exposure to hazards at mining operations occurring intermittently and repeatedly over time.” This explanation leaves a considerable amount of gray area. Is a service worker’s monthly visit to your site sufficient to constitute frequent exposure and require new miner training?
Similar confusion exists for operators subject to the 30 C.F.R. Part 48 training requirements. Whether an individual receives hazard or comprehensive new miner training is dependent upon which definition of miner these individuals fall under. 30 C.F.R. § 48.22(a)(2) defines “miner” as “any person working in a surface mine, including any delivery, office, or scientific worker or occasional, short-term maintenance, or service worker contracted by the operator, and any student engaged in academic projects involving his or her extended presence at the mine.” Individuals falling within this definition are required to receive hazard training in accordance with 30 C.F.R. §48.31. The MSHA Program Policy Manual provides some guidance as to the types of hazard training to be administered to non-employees:
48.11/48.31 Hazard Training
Examples of Appropriate Training
Although the amount of required training may vary, the following are examples of appropriate training…
3. Customers and Delivery Persons
a. For purposes of training, custom ers are individuals who are briefly on mine property to pick up mined materials.
The extent of customers’ exposure to mine hazards varies. Training is not required if there is no exposure to mine hazards. Customers must receive hazard training commensurate to their exposure to mine hazards. In addition, they must be trained in the health and safety aspects and safe operating procedures of any mine machinery or equipment that they are required or allowed to operate while on mine property. Comprehensive training would apply to customers engaged in the extraction and production process.
b. Delivery persons are individuals who enter mine property briefly to deliver supplies, who are not engaged in the extraction and production process, or do not perform maintenance and service work.
Delivery persons must receive hazard training commensurate to their exposure to mine hazards. MSHA expects a realistic appraisal by the mine operator of the hazards associated with such jobs.
[Volume III, 48-49 (July 2003)]
30 C.F.R. § 48.22(a)(1) defines “miner” as: any person working in a surface mine or surface areas of an underground mine and who is engaged in the extraction and production process, or engaged in shaft or slope construction, or who is regularly exposed to mine hazards, or who is a maintenance or service worker employed by the operator or a maintenance or service worker contracted by the operator to work at the mine for frequent or extended periods. (Emphasis added.)
Individuals falling within this definition are required to have comprehensive training. Clearly, any of the individuals specifically described in 30 C.F.R. § 48.22(a)(2) (i.e. delivery drivers) would be required to have comprehensive training if they are “regularly exposed to mine hazards.” The MSHA Program Policy Manual interprets regular exposure to mine hazards as “either frequent exposure, that is exposure to hazards at the mine on a frequent rather than consecutive day basis (a pattern of recurring exposure), or extended exposure of more than five consecutive workdays, or both.”
Unfortunately, when it comes to the issue of regular exposure to mine hazards and “frequent and extended” exposure, the MSHA regulations and policy guidance do not provide definitive guidance. The key for an operator is to be aware of the issue, be aware of the frequency of visits to your site by non-employees, and when in doubt as to what training is required, always err on the side of safety.
Marci M. Fulton is an associate at Patton Boggs LLP’s Denver office where she advises clients on administrative and regulatory issues, particularly environmental, health, and safety issues, and civil litigation. Fulton may be reached via phone at 303-894-6121 or via e-mail at firstname.lastname@example.org.